On 27 June 2023, the Environment Select Committee reported to the House on the Natural and Built Environment Bill and the Spatial Planning Bill.
As introduced, we considered the Bills posed a number of challenges including around workability and unclear drafting: see our article here. A fairly clunky set of first drafts, combined with approximately 3,000 submissions on the Bills and the short time period in which to hear those submissions, left the Select Committee with a significant amount of heavy lifting to do.
Our overall impression is the Select Committee has generally done a good job at improving the workability and clarity of the new legislation but there are still some significant challenges coming for users of the resource management system if the legislation is passed as expected.
Our eight key takeaways:
1. A stronger purpose
The Select Committee has recommended changes to the purpose of the Bills. The primary purpose will be to uphold te Oranga o te Taiao (which now has a more detailed meaning provided in the updated Bill). This is intended to occur through enabling the use and development of the environment in a way that promotes the well-being of both present and future generations, subject to protecting the health of the natural environment. The intent is clear: protection of the natural environment outranks use and development. That will present challenges for development.
The requirement to give effect to the principles of Te Tiriti o Waitangi (and more broadly the role of Māori under the Bills) remains.
2. Clarity on resolving conflicts between system outcomes
The purpose of the system outcomes is to establish what must be achieved at the national and regional level to ensure the purpose of the Act is given effect to. A number of the outcomes have been improved, including more active encouragement for infrastructure to meet current and future needs. Resolving conflicts between outcomes has been made more clear such that any conflicts must first be resolved in a way that protects the natural environment.
Once that first step of environmental protection has been achieved, it is not necessary to achieve all outcomes at once, but priority should be given to resolving conflicts at the highest possible level in the planning framework and in a way that best gives effect to those competing outcomes. Again, while clarity on how to resolve these conflicts between outcomes is positive, it will present challenges for development.
3. Some hope for regulatory efficiency
Stronger provisions have been included to ensure that there is a reduced reliance on resource consenting processes. This explicitly recognises and responds to the Government's intention that there be a greater role for permitted activities under the new regime.
Regional planning committees (RPCs) and councils will be required to ensure their processes are timely, efficient and cost-effective. The role of the precautionary principle has been reduced in the legislation and now only comes into play if the information required to make a decision is uncertain or inadequate. These proposed provisions are a practical and welcome response to some of the implementation challenges facing the new legislation.
4. NPF incoming
The National Planning Framework (or NPF) remains central to the operation of the proposed legislation and the first draft NPF could be notified as soon as the Bills have been passed. The notified version of the NPF is required to carry over existing national direction as it was at 31 May 2023 to the extent compatible with the new legislation.
This will not be required to include anticipated national direction (or amended direction) including in relation to renewable electricity generation, electricity transmission, indigenous biodiversity, plantation forestry, greenhouse gas emissions, and drinking water sources. New matters (which now also include infrastructure, ecological integrity of ecosystems, protection of urban trees, and enabling the supply of fresh fruit and vegetables) must be introduced by 1 January 2028. However, we understand that the first NPF to be released later this year will include matters such as infrastructure, as well as rolling over existing national direction.
5. Fast track is arriving even faster
Fans of the COVID-19 Recovery (Fast-track Consenting) Act 2020 (FTCA) will be pleased that this process will come into effect on the day the Bill is passed. The process remains relatively unchanged from what was proposed in the Bills on their first reading, although the Minister has been granted a broader discretion to refuse to refer projects to an expert consenting panel. Some of the impediments for notices of requirement have also been removed.
Consents granted under this process will now have a maximum five-year lapse date compared with the two-year lapse date under the FTCA. During the transitional period, expert consenting panel decisions will be made under existing RMA national direction, regional and district plans while the NPF and new plans are developed.
6. Some key elements aren’t changing
The Select Committee has recommended minor tidy-ups but has not proposed any significant changes to the provisions relating to consents, designations and the allocation of water resources. The Select Committee has also not recommended any major changes to the Spatial Planning Bill, but has increased expectations around public participation during preparation of regional spatial strategies including mandatory hearings of submissions.
7. Notification tests for designations and consenting processes
The notification tests have been significantly cleaned up:
An application will be presumed to be non-notified where the application is for an "anticipated activity" (that terminology now replaces controlled activities) or the NPF or plan does not require notification, and there are no affected persons;
An application will be presumed to be limited notified where the application is for an anticipated activity or the NPF or plan requires limited notification, and there is one or more affected persons.
An application will be presumed to be publicly notified if it is for a discretionary activity or the NPF or plan requires it, or the applicant has requested public notification.
The "affected person" test reverts to using language that is more similar to the provisions of the Resource Management Act.
The approach to notification in the NPF and plans will be determined by the degree of consistency of the activity with the system outcomes and limits, whether the effects of the activity can be identified or are well understood and the degree to which there are affected persons.
8. Gone by Christmas?
We expect the Bills to be passed before Parliament rises at the end of August 2023. There is still the potential for further changes to be made to the Bills through supplementary order papers.
However, there is a risk that the new framework may not last long. The Bills are more politicised than ever before. Despite both the National and Act parties recognising reform is a once-in-a-generation opportunity, they have issued dissenting Select Committee Reports refusing to support the Bills on the basis they will "repeat the mistakes of the current RMA and are worse than what we have now". The National Party has promised to repeal the Bills (if they are passed) by Christmas.
It seems that the Bills will continue the RMA's legacy of being a political football, to be blamed for many of New Zealand's woes.
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.