Background - RMA Reform
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 publicly released. The Panel recommended repeal of the RMA and its replacement with three new pieces of legislation – a Natural and Built Environments Act, a Strategic Planning Act, and a Managed Retreat and Climate Change Adaptation Act. 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 understandably generated significant interest and public commentary. If the current Labour Government is re-elected, 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.
Over the next few weeks we will be working through some of the Panel's "big ticket" proposals for reform and will outline our perspectives on these. This week we discuss the Panel's proposals for strategic integration across the resource management system.
Integrated management – what's the problem?
The RMA set out to achieve the integrated management of natural and physical resources. Before the RMA, there were more than 70 planning, land use and environmental statutes and regulations, which were seen as collectively failing to deliver good development or environmental outcomes. The government of the day decided a single statute integrating the management of New Zealand's land, water, air and coastal resources was required. The RMA was that statute.
At the outset of its report, the Panel has zeroed in on the RMA's approach to integrated management. It concludes that although the RMA has not delivered the desired development or environmental outcomes, the "integrated management" approach is not at fault, and the case for integration in New Zealand remains strong. The Panel highlighted that, internationally, integration of decision-making frameworks for economic and environmental protection is essential. The Panel's clear view was that while the RMA is not without significant issues, an integrated approach to land use planning must be retained.
Interestingly then, at first glance the Panel's recommendation to replace the RMA with three new pieces of legislation has the potential to result in less of the integration it says is essential. One of the clear risks of separate legislation is that the integration of land use planning and environmental decision-making may be compromised.
On closer inspection, however, what the Panel has recommended would see significantly more integration than we currently have.
Under the RMA, integrated management is provided through the hierarchy of national direction (policy statements and environmental standards), regional policy statements and plans, and district plans. Integration between different decision-makers is also provided for through joint hearings for resource consent applications involving more than one consent authority. However, integration under the RMA has its gaps:
- There is a presumption under s9 RMA in favour of land use and development, whereas for water, air and coastal resources the RMA provides that consent is required unless the activity is permitted by the relevant regional plan.
- The functions of territorial and regional authorities are also largely split along these lines, with territorial authorities responsible for land use and regional authorities for water, air and coastal resources.
New Zealand's existing legislative framework for resource management also does not start and end simply with the RMA. As the Panel has identified, concerns about the lack of integration in the resource management system are not with the RMA itself, but rather that achieving good outcomes under the RMA is substantially affected by decisions made under the Local Government Act 2002 (LGA), the Land Transport Management Act 2003 (LTMA) and the Climate Change Response Act 2002 (CCRA). There is poor alignment between these different legislative regimes, particularly when it comes to integrating land use decisions with infrastructure planning and funding, which is a significant contributor to poor overall outcomes.
The solution the Panel has proposed is multi-faceted. The Natural and Built Environment Act is intended to build on the RMA's approach to the integrated management of natural and physical resources. The "environment" will be broadly defined to include "natural and built environments whether in urban or rural areas". There will be minimum environmental standards ("bottom lines") for certain resources. Greater integration between the exercise of regional and district council functions under the new Act would also be required, principally through the requirement for a single "combined plan" for each region.
More integration across the wider resource management system is also the purpose of the Panel's proposed Strategic Planning Act. This would require the integration of strategic-level decision-making across the different pieces of legislation affecting the resource management system, including the Natural and Built Environments Act, LGA, LTMA and CCRA, as well as with wider infrastructure planning and development undertaken by central government.
The Panel recommends that the primary tool for achieving this wider integration will be long-term regional spatial plans. These plans would set high-level patterns of development and resource use/protection, with objectives and policies required to be consistent with all the legislative regimes that have a role in resource management. Further integration would also be enabled by requiring regional spatial plans to be developed and agreed by central government, councils and mana whenua.
Can all this integration actually be achieved?
We agree that better integration is highly desirable. In our experience, there is clearly a disconnect between land use planning decisions made under the RMA, and funding decisions under the LGA and LTMA, particularly in the context of the infrastructure required to enable and support the land use outcomes sought in RMA plans. A system that expressly requires strategic land use planning to be integrated with strategic decisions for infrastructure funding and development makes very good sense.
Our primary concern is whether strategic integration across the resource management system, as the Panel envisages it, can actually be achieved.
As the Panel itself stressed in the Report, the success of its proposal is dependent on the capability and capacity of central and local government to adequately fulfil the roles required of them.
In our view, the costs of achieving the Panel's highly integrated system will be significant. For example, the development of combined plans for each region will require significant ratepayer resources, as well as demands on the public and private sector users of the resource management system to fully participate. The development of the Auckland Unitary Plan is perhaps the best recent example of the scale of costs and resources that will be required to fully integrate land use and coastal resources planning at the regional-level. The requirement for mandatory regional spatial planning to sit on top of the combined regional plans and provided strategic-level integration will add further to the costs that will fall on all sector participants.
The Panel's proposals are also being made at a time when the finances of central and local government, along with all stakeholders, are going to be constrained due to the economic impacts of COVID-19. Given this, we consider the Panel's concerns regarding the capability and capacity of central and local government to deliver their resource management functions effectively could become even more acute.
In our view, a major funding and resourcing step-change will be required to deliver on the Panel's vision for a much more highly integrated resource management system. In particular, more central government funding for the delivery of regional spatial plans and combined plans by regional and local authorities will be required, given the significant constraints local government is already facing with funding all their different activities, primarily through property rates. Local authorities will also need to grapple with the need to support – and fund – decision-making at the regional strategic level, where the benefits for their local communities (as opposed to their region as a whole) may not be immediately obvious.
More integrated planning and decision-making has obvious benefits for development and environmental decision-making. However, given the significant central and local government funding and resources that will be required to implement the Panel's proposed new system, there is a real risk that ultimately there will be less integration – or less effective integration – than the Panel has proposed.
Please get in touch with one of our team if you would like to discuss how this may impact you or your organisation.
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.