In a report released today, the Resource Management Review Panel (Panel) recommended major changes to New Zealand’s resource management legislative framework, including repealing and replacing the Resource Management Act 1991 (RMA) with the following new legislation: 

• a Natural Built Environments Act (NBEA);
• a Strategic Planning Act (SPA); and 
• a Managed Retreat and Climate Change Adaptation Act (CCAA).

The NBEA would be the most direct replacement for the RMA, while the SPA would have the purpose of setting long term strategic goals and facilitating the integration of functions from across the resource management system (including the Local Government Act 2002, Land Transport Management Act 2003 and Climate Change Response Act 2002). If enacted the CCAA will establish an adaptation fund to enable central and local government to support necessary steps to address the effects of climate change.

The combined effect of the SPA and the NBEA would be to significantly overhaul how local authorities are expected to approach planning for natural and built environments, with a focus on closer links between land and resource planning, and associated funding and investment.

In this article we highlight and comment on some of the key recommendations for reform made by the Panel.

Part 2 enhanced: RMA principles and purposes are replaced

The Panel proposes a new purpose for the NBEA: enhancing the quality of the environment to support the wellbeing of present and future generations. That purpose will be achieved by promoting positive outcomes for both natural and built environments, ensuring that the use, development and protection of resources only occurs within prescribed environmental limits and that the adverse effects of activities on the environment are avoided, remedied or mitigated.

• Comment: There is some carry over from Part 2 of the RMA for instance, the words ‘avoiding, remedying or mitigating adverse environmental effects’ are retained.  However, there are some obvious differences, such as the abandonment of the concept of ‘sustainable management’, although the concept of sustainability is still implied. Furthermore, there is a shift away from only managing adverse effects with a strong focus on achieving positive outcomes.

The Panel recommends introducing the concept of Te Mana o te Taiao as an expression of the fundamental importance of natural resources such as air, water and soil in sustaining life (similar to section 5(2)(b) of the RMA). The Panel also recommends requiring decision makers under the NBEA to ‘give effect to’ the principles of Te Tiriti o Waitangi/The Treaty of Waitangi, instead of merely taking them into account (as required by section 8 of the RMA). The Minister will be required to provide national direction as to how Te Tiriti o Waitangi is to be given effect to.

• Comment: The changes would allow much greater scope for Te Ao Māori to influence planning processes and the outcome of planning decisions, reflecting the constitutional significance of Te Tiriti o Waitangi.

Regional and district plans to be combined

The Panel recommends that regional and district plans should be combined and replaced with a single plan for each region (Combined Plans). In effect, there will be a single unitary plan (similar to the Auckland Unitary Plan (AUP)) for every region which will reduce the number of planning documents to 14, from the more than 100 that exist now.

The Panel proposes that the Combined Plans made under the NBEA will be created by a joint committee comprising representatives of central government, the regional council, all constituent territorial authorities in the region, mana whenua and a representative of the Minister of Conservation (Joint Committee). Similarly, committees comprising of representatives of central government, the regional council, all constituent territorial authorities in the region, mana whenua and an independent chair will prepare the regional spatial strategies required by the SPA.

Comment:

• These changes, if implemented, should make the resource management system significantly easier for parties, particularly applicants, to navigate. It will also resolve uncertainty arising from overlapping functions of regional councils and territorial authorities.  It has the potential to produce higher quality planning documents and minimise potential conflicts between the outcomes specified in the purpose and principles of the NBEA.
• Also, the Combined Plans could potentially release pressure through the integration of regional council and territorial authority functions. The upfront costs associated with the development of Combined Plans will be significant.

Learning the lessons from 30 years of experience with the RMA

Critics of the RMA and its implementation claim that it has not established environmental bottom lines, while at the same time acting as a “handbrake” on New Zealand’s economic development.

The Panel recommends that the NBEA should require the setting of mandatory environmental limits (also referred to as bottom lines) for biophysical aspects of the environment including freshwater, coastal water, air, soil and habitats for indigenous species. Mandatory national direction would be required to guide how these matters must be reflected in plans, including through the use of targets which local authorities will need to set.

These targets will seek to achieve the positive environmental outcomes specified in the NBEA. Under RMA case law, such as the King Salmon case, environmental bottom lines do not exist by default, and instead only exist where other decision makers decide to adopt them (for instance, in National Policy Statements such as the New Zealand Coastal Policy Statement).

The Panel’s recommendations would substantially expand the current position in the RMA. Furthermore, the Panel recommends giving local authorities the ability to modify or extinguish consents where environmental limits are threatened.

• Comment: The creation of environmental bottom lines via mandatory national direction will likely improve environmental outcomes. However, we note that the process of creating environmental bottom lines for freshwater in the National Policy Statement for Freshwater Management was a political, highly contentious and difficult process. There remains the risk that without cross party consensus, bottom lines set through national direction, presumably in the form of a national policy statement or similar, will change periodically according to the make-up of the parties forming the New Zealand government at that time.

The Panel proposes that the NBEA should focus on outcomes for the built environment, as well as the natural environment, by including provisions to ensure that there is sufficient development capacity for housing and business land.

• Comment: Some of the changes proposed by the Panel in relation to built and urban environments have already been included in the National Policy Statement for Urban Development. In our view, explicitly including these objectives in the proposed legislation and then expanding on them in national policy statements will provide greater guidance and consistency for all parties.

The Panel also proposes that the NBEA should contain a more explicit focus on climate change issues. The Panel’s recommendations focus on using the NBEA to reduce greenhouse gas emissions rather than merely managing the natural hazards that result from climate change.  The CCAA and NBEA together support the aim of a managed transition to a low carbon economy and are in line with recent developments in other New Zealand climate change legislation.

• Comment: Giving effect to the CCAA and addressing adaptation funding and implementation will fill in a large gap in the climate change legislative regime, and provide local government with much needed support and certainty. In our view, this is a significant and positive action to address climate change costs and effects, and will be welcomed by local government.

The Panel also proposes streamlining another arguably problematic area of the RMA: the plan preparation and change process. In particular, the Panel proposes that the Joint Committees (as discussed above) should have the authority to prepare and notify the Combined Plan. It also recommends a process similar to that used for preparing the AUP.

• Comment: In our view, this will make the plan preparation process more streamlined and the process will be familiar to those who participated in the AUP process. However, it does take away the ability of the public to appeal successful recommendations on the merits.

The Panel has also recommended clarifying the notification process by removing the 'no more than minor' effects threshold and replacing existing provisions with a combination of presumptions and plan provisions specifying when notification is to occur and in what form.

• Comment: Potentially this approach could be easier to apply to the facts of a particular resource consent application, and therefore will provide greater clarity to all parties. However, there is likely to be a period of uncertainty as case law develops over how the new presumptions or other new statutory tests regarding notification apply in practice.

Overall comment

It is reassuring to see that the Panel has retained some of the RMA’s important and well thought-out ideas and planning tools. It has focussed its recommendations on current deficiencies and lessons learnt over the time that the RMA has been in force. However, the detail of any proposed legislation flowing from the Panel’s recommendations will likely be determinative of whether any reforms really do address the weaknesses of the RMA and its implementation.

In a broadly positive press release accompanying the report, Minister Parker commented that a review was “long overdue” and that the Government will not be taking any action until after the election in September.  This, along with the National Party’s stated desire to repeal the RMA, means that the Panel’s recommendations are likely to shape the conversation around the subsequent steps of resource management reform, regardless of which party or parties form the next Government.

Get in touch

Please get in touch with any of our contacts (pictured right) to discuss any aspect of the RMA, or the Panel’s recommendations for RMA reform.

Contributors bronwwen.norrie@simpsongrierson.com, chris.ryan@simpsongrierson.com