The Environment Select Committee (Select Committee) has released its Report on the Exposure Draft of the Natural and Built Environments Bill (Bill). After considering more than 3,000 public submissions, the Select Committee has provided 37 recommendations to modify the Exposure Draft.
Overall, the Select Committee has responded positively to submissions that seek better enablement of development within environmental limits.
Below we take a look at key points from the Select Committee's recommendations.
Purpose of the Bill
The Select Committee endorsed the concept of Te Oranga o te Taiao. However, the Committee recognised the difficulties in taking concepts from Te Ao Māori and transplanting them into legislation. The Committee recommends further development and refinement of the Bill to clarify what Te Oranga o te Taiao means in the context of this legislation. The Committee suggested that the hierarchy of priorities in Te Mana o te Wai could play a role in this. That hierarchy prioritises the health and wellbeing of the natural environment, followed by the health needs of the people, and then the ability of people and communities to provide for their social, economic and cultural wellbeing.
The Committee has also recommended more directive language to support the role of Te Tiriti o Waitangi.
The Committee has stated that the purpose of the Bill does not support the built environment adequately. As many submitters recognised, one of the purposes of the Bill is to ensure that there are better built environment outcomes. The Committee has recommended that the purpose better recognise the built environment:
"We agree with many submitters that the development and protection of the built environment is not adequately reflected in the draft purpose clause, and should be expressly referred to given its importance."
The Select Committee was wary of the role of offsetting and compensation. The Committee saw offsetting and compensation as a way around proper environmental management and has recommended reference to offsetting and compensation be removed from the definition of mitigation. This is the opposite of what many submitters sought. The Committee has recommended that offsetting and compensation be used to address residual adverse environmental effects after they have been avoided, remedied, or mitigated.
Environmental Limits
The Committee has endorsed the environmental limits in the Bill applying to: air; biodiversity, habitats and ecosystems; coastal waters; estuaries; freshwater; and soil. The Committee has recommended "biodiversity, habitats and ecosystems" is changed to "indigenous biodiversity" to ensure that limits are used judicially. The Committee has also rolled back powers for local government to set their own limits reducing the scope of regional variation.
Importantly for many businesses and organisations, the Select Committee has endorsed two pathways through the environmental limits:
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The Committee recommends further consideration of a category of exceptions to environmental limits. Many submissions recommended an exception for infrastructure – and some on the Committee agreed with this exception. An infrastructure exception has already been adopted in the management of freshwater environments and in our view this exception is essential to ensure that New Zealand can continue to support growth.
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The Committee recommends transitional limits where an environment is already below a bottom line. These transitional limits will act as a pathway to achieving the ultimate limit and will apply either for a set length of time or until a set environmental state is achieved. Businesses and entities operating in already-degraded or fully-allocated environments will welcome this recommendation.
Environmental outcomes
The Select Committee has agreed an unintended hierarchy had been created in the Bill between different environmental outcomes. This meant that protection of the natural environment was favoured above enabling the built environment. The Committee has agreed the hierarchy should be flattened out. However, in practice the Committee's recommended drafting, which includes a consolidated set of outcomes, does not fully erode this hierarchy. In our opinion, the built environment outcomes still fall short of the natural environment outcomes particularly in the case of infrastructure. It is also unclear to us how the consolidation of outcomes for urban and rural environments will work in practice.
The Committee has recommended that all outcomes be included in the National Planning Framework (NPF). Previously, the Bill stated that only some outcomes should be included in the NPF.
Conflict resolution
The Select Committee has still not been able to fully solve how conflicts between competing outcomes and interests will be managed. The Committee envisages a greater role of the Minister and more direction in the NPF or in natural and built environment plans themselves (NBE Plans). The Select Committee sees the Environment Court as an important institution to resolve conflicts and has suggested a more inquisitorial approach may assist in resolving conflict in a more timely fashion. Ultimately, it seems inevitable that conflict will arise under legislation that pits the natural environment against the built environment. In reality, many conflicts will need to be resolved in their particular contexts and ultimately judicial intervention will be required.
NBE Plans
The Committee has acknowledged the importance of NBE Plans:
"The creation of the first NBE plans will be an especially significant undertaking."
The Committee has recommended that the NPF should be more directive on what is included in NBE Plans including the types of provisions. Given the importance of NBE Plans, the Committee has suggested further refinement of public participation processes as well as how planning committees will operate and be supported.
Next Steps
Parliament will hold a special debate on the Committee's recommendations on 18 November 2021 and the Government will release its response by 31 January 2022. This will inform the preparation of the full Bill, which is due to be introduced in mid-2022 alongside the Strategic Planning Bill. Both Bills will then follow a standard legislative and select committee process. The Government's aim remains to have the NBA and Strategic Planning Act passed into law in this parliamentary term.
The Ministry for the Environment has also indicated that it is working on a transition programme and in the coming months and will seek input on measures to support the successful transition to the new system as the programme develops.
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