Prime Minister Jacinda Ardern dubbed 2019 the "year of delivery" and looking back on 2019 it has been a bumper year for legislative reform in the resource management and policy space (although much of this remains unresolved). It has been a year of action, from the Government, the Courts and the public.
Stage One of the Government's RMA reform has seen focussed changes to the Act introduced via the Resource Management Amendment Bill in September (see our September update). The second stage wider review of the environment and planning ecosystem has resulted in the Resource Management Review Panel led by former Court of Appeal Judge, Tony Randerson QC, which is currently workshopping an Issues and Options paper. This feedback process provides a once in a generation opportunity to significantly shape the future form of the RMA version 2.0.
Successive governments have been criticised for not providing national direction through the RMA, however, the pendulum has swung this year with Government proposals released for national policy statements for freshwater, urban development, highly productive soils and biodiversity.
Fast track facilitation of urban development is also receiving legislative attention. Legislation to establish a new Government housing and urban development agency, Kāinga Ora, came into force in October and the follow up Urban Development Bill had its first reading in December (see our December update).
This year has also seen significant action from the public, particularly with large protests at Ihumātao as well as school strikers marching for the climate across the country. Both issues have received significant Government attention. In particular, the climate change movement celebrated the landmark Climate Change Response (Zero Carbon) Amendment Act 2019 passing into law on 13 November. Trees have also been high on the list of flashpoints with publicised community engagement in relation to the removal of non-native trees on Ōwairaka, as well as in relation to various private developments.
In caselaw, the last eighteen months saw the trajectory of the King Salmon decision play out with respect to both consent applications and planning instruments. RJ Davidson Family Trust v Marlborough District Council [2018] NZCA 316 clarified when reference to Part 2 of the RMA is appropriate in the context of resource consent applications. More recently, the High Court decision in Environmental Defence Society v Otago Regional Council [2019] NZHC 2278 confirmed the approach that is to be taken for the application of the avoidance policies of the New Zealand Coastal Policy Statement when preparing regional plans. With leave sought to appeal that decision, there could be more in store next year.
Looking forward to 2020
Key dates for Q1 2020
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| - consultation on the Issues and Options paper closes on 3 February |
| - submissions on the Urban Development Bill close on 14 February |
| - consultation on the National Policy Statement on Indigenous Biodiversity closes on 14 March |
These are the key themes we see emerging in 2020:
1. The Election.
As with 2017, environmental issues are likely to be a key concern for voters, in particular, strategies to address climate change, water and housing/infrastructure concerns. With the National party this week setting out its position on repeal and replacement of the RMA, the Act will be a hot topic in 2020 election campaigning.
2. RMA Reform.
The continuing work of the Randerson Panel.
3. Continuing reform.
Early 2020 is set to see a continuation of the Government's reform programme, with the expected release of the National Environmental Standard for Human Drinking Water, new National Environmental Standards for Freshwater and National Environmental Standards for Wastewater Discharges and Overflows. Air Quality will also have its turn in the spotlight with the expected Ministry for the Environment review of the National Environmental Standards for Air Quality.
4. Private plan changes.
We expect to see an increase in the use of private plan changes to accommodate growth and to avoid some of the consenting challenges associated with directive plan provisions. This has already started around Auckland following the expiry of the two year "soft moratorium" on plan change requests under the Auckland Unitary Plan.
5. Monitoring and Enforcement.
There is likely to be a continuation of the increased focus by councils on monitoring and enforcement of resource consents. Those functions of local authorities have been in the spotlight, including with the Issues and Options paper, and we see councils continuing to strengthen their approaches in this area.
Please contact our experts if you have any queries about previous or upcoming reforms. We wish everyone a very Merry Christmas and a Happy New Year.
This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.