In late July, the comprehensive review of the Resource Management Act (RMA) by the Resource Management Review Panel, chaired by retired Court of Appeal Judge, Hon Tony Randerson, QC, was released. Our summary of the Panel's report and major recommendations can be found here.
The RMA has long been subject to criticism, and the release of the Panel's report has generated significant interest and public commentary. We think it is safe to assume that the RMA as we know it will not survive the next term of Government, and that the Panel's recommendations will form the basis for reform.
In this series we will be working through some of the Panel's "big ticket" proposals for reform and will outline our perspectives on these.
A central plank of the Review Panel's report on new directions for resource management in New Zealand is the role of national direction. In this article, we explore the Panel's recommendations on national direction and share our perspectives on the opportunities and challenges presented by setting policies on issues of national significance.
What is national direction?
Currently, the RMA enables central government to provide guidance in the planning framework through setting policies and standards on matters of national significance. A range of national direction instruments are provided for. These are National Policy Statements (NPS), National Environmental Standards (NES), national planning standards, and regulations. The only mandatory national direction instrument under the RMA is the New Zealand Coastal Policy Statement (NZCPS).
Despite these tools being anticipated under the RMA framework, central government has historically been slow to develop national direction documents, and the lack of national direction is often cited by stakeholders and critics as a key reason for why the RMA is ineffective, slow and costly.
This has changed in recent years. Over the last 18 months, the NPS for Urban Development 2020, the NPS for Fresh Water Management 2020, the Resource Management (NES for Freshwater) Regulations 2020 and the first tranche of National Planning Standards have been promulgated. NPS currently provide for matters as diverse as avoiding development in the Coastal Marine Area (NZCPS) to the removal of minimum parking standards (NPS-UD).
The Government is currently developing an NPS on Highly Productive Land and Indigenous Biodiversity and NES for Sources of Human Drinking Water and Wastewater Discharges and Overflows. Amendments to the NES for Air Quality are also expected. NPS for heritage protection and for the discharge to air of greenhouse gasses are also currently being scoped, as are amendments to the NPS for Renewable Electricity Generation.
The Panel's recommendations – more national direction
A strong theme of the Panel's recommendations is the ongoing and critical role of national direction. The Panel has recommended that the existing types of national direction be retained but that roles and functions should be clarified. The Panel considers that:
- NPSs and NES should be the primary instruments for substantive policy matters;
- national planning standards should have a more confined role to matters such as plan structure and common definitions; and
- regulations should be confined to their traditional role of dealing with administrative matters, with the ability to address substantive issues in certain circumstances.
The Panel also recommended that all existing national direction documents be brought together into a combined set, and any conflicts between them "resolved".
As well as retaining the ability for the Minister to issue discretionary national direction, the Panel has recommended increased mandatory national direction (eg beyond just the NZCPS), and proposes a list of matters that the Minster must prescribe through national directions including:
- features and characteristics that contribute to enhancing the quality of natural and built environments;
- nationally significant features of the natural character of the coastal environment (including the coastal marine area), wetlands, lakes, rivers and their margins;
- outstanding natural features and outstanding natural landscapes that are of national significance;
- areas of significant indigenous vegetation and significant habitats of indigenous fauna that are of national significance;
- methods and requirements to give effect to the enhancement and restoration of ecosystems;
- how the principles of Te Tiriti o Waitangi will be given effect through functions and powers exercised under the proposed Natural Built and Environments Act; and
- methods and requirements to respond to natural hazards and climate change.
The Panel says NPS and NES should be developed through an independent board of inquiry process to provide a critical check on the appropriateness and practicability of any national direction. Stronger obligations on the Minister to monitor, review and report on the effectiveness of NPS and NES are also recommended.
Will the proposed recommendation achieve the intended outcomes?
The intent of the Panel's recommendations is that national direction should provide clearer direction and be more influential in plan making processes and decision making under the proposed new Natural and Built Environments Act. It is a laudable goal. However, the key challenge we see with this approach is the ability to deliver national direction on all of the matters contemplated by the Panel in an efficient and integrated manner.
The list of matters contemplated by the Panel for mandatory national direction is long. It contains a number of complex topics which will necessarily create tensions between them, and on which there will be much technical, ideological and political debate. Even if national direction can be developed on all of the matters contemplated by the Panel, there is potential for benefits to be undone when it comes to the implementation phase.
In an ideal world, all this national direction would be developed first to resolve any potential tension or conflict between the various policies. That would then flow down into the regional spatial plans which should be developed next, before combined plans are developed. Unfortunately, time and resources are not on our side to "stop the clock" and develop a new planning framework in this way. The Panel has appropriately acknowledged that it is not practicable for planning documents to be developed in such an idealistic sequence.
While we agree with the Panel that a pragmatic approach is required to implementation, the result is that national direction will continue to be rolled out at different timescales across the country, producing the same inefficiencies that we have seen in our current system. In our view, there needs to be prioritisation of the matters to be addressed at a national level. This presents challenges around picking "winners" in terms of what is dealt with first, but seems unavoidable.
The other key challenge we see is that the issues these documents seek to address are highly political and ones that all New Zealanders have a deep interest in. What should be addressed at a national level (and when) is substantially influenced by the political landscape and our short election cycle. We have seen this with the development of the NPS for Freshwater Management, which was first introduced in 2011, amended in 2014 and 2017, and then replaced in 2020. In the lead up to the 2020 election, opposition politicians have said that, if elected, they would review or replace the reforms on freshwater management.
National direction has an important role to play in our resource management system and the Panel's recommendations go some way to addressing some of the key issues with national direction in the current framework. Good, clear national direction can be effective in providing guidance on certain issues and giving some greater certainty around investment decisions.
The development and implementation of national direction is complex, political, expensive and time consuming. There will be big winners and losers, and litigation will be a feature (King Salmon, Port Otago). While "more national direction" is a common refrain in discussions on RMA reform, it is not an easy or obvious "fix" and should not be seen as such.
View other articles in the RMA Reform Series here.
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.