25/11/2022·5 mins to read
Beyond the RMA: What comes next - Update #2 on Plan Making
Update #2: Our second update in our series on the Natural and Built Environment Bill (NBE Bill) and the Spatial Planning Bill (SP Bill) provides an overview of the key aspects to plan-making under the new legislation.
The Government is relying heavily on the new planning regime, once implemented, to significantly reduce consenting costs. The work to get to that point is going to be significant. Involvement in the preparation of the National Planning Framework (NPF) will be crucial and we expect that discussions regarding prioritising system outcomes will be hotly contested, especially if the final content of the NPF could essentially prevent development proposals being sought at all if certain locations / resources are involved.
National Planning Framework (NPF)
The NPF will be the sole source of national planning direction. Existing national direction will form the initial foundation of the NPF, and it will eventually provide one comprehensive framework, which will also set out national environmental limits and targets.
It is understood that the new NPF is intended to (as much as possible) address the conflict between existing national documents, and also more comprehensively address infrastructure. The reality is that if bottom lines are to be specified, and conceptual areas for development are set aside, there will be conflict. As currently drafted, neither Bill gives any direction or priority to any system outcomes. How the NPF reconciles the inherent conflict present in environmental management, and associated scientific uncertainty, information constraints, differing opinions and economic benefits (especially in non-urban areas) will be key to whether it is successful when implemented at a regional level.
We also expect the NPF to make changes to the current National Planning Standards (NPS), so that specific direction is given to the form and content of the regional spatial strategies and NBE plans that will be prepared under the new Bills.
The NPF presents a clear opportunity to provide a full, coherent framework at the top of the planning hierarchy. The risk with doing it in an ad hoc way (using the existing NPS as a base) is that it will suffer the same flaws as the existing framework. It is critical in our view that the necessary amount of time is taken to get it right, and to allow for appropriate levels of consultation and input.
Regional Spatial Strategies (RSS) required under the SP Bill
Perhaps the biggest change in the new regime is the mandatory requirement for RSS to be developed. RSS will set strategic direction for the use, development, protection, restoration, and enhancement of the environment or regions, for not less than 30 years.
Clauses 15-21 of the SP Bill detail the form and content of a RSS. When considering the prescribed content, these strategies can be expected to have a strong ‘visual mapping component’ (the key matters in clause 17 largely refer to “areas”, which will be easier to depict visually). In our experience, the strength of words that sit alongside any map depicting a particular outcome for an area of land, are critical to the importance or otherwise, of that document. This is particularly so if the RSS is to clearly articulate the “vision and objectives” for the region.
The level of detail of an RSS must reflect the level of certainty provided by the evidence and other information available. We note that a RSS is able to incorporate information on the state and characteristics of the environment from a recent operative RMA planning document.
In terms of contents, at a high level, a RSS must:
Set out a vision and objectives for the region’s development and change, and related actions to achieve the same (clause 16).
Provide strategic direction on a range of key matters, which include: areas that may require protection, restoration and enhancement; are appropriate for urban development and change; are appropriate for extracting natural resources; major existing, planned or potential infrastructure or major infrastructure corridors, networks, or sites; and areas that are vulnerable to significant risks arising from natural hazards (clause 17).
Provide strategic direction on any other matters that meet criteria for sufficient importance (clause 18).
Clauses 15, 24 and 25 will also be instrumental, in that they direct:
That a RSS must support a co-ordinated approach to infrastructure funding and investment by central government, local authorities, and other infrastructure providers.
A Regional Planning Committee (RPC) must have particular regard to, or have regard to, various documents, including the Government policy statements (listed in Schedule 3), planning documents recognised by an iwi authority and statutory acknowledgements.
A RPC must also have regard to cumulative effects and mātauranga Māori.
In our view, overall, the RSS includes some big asks, and its success will require significant engagement from the industry, not least infrastructure providers. It will also require ‘buy-in’ from all local authorities.
NBE Plans required under the NBE Bill
Each region will also be required to develop a plan (NBE Plan), which must be consistent with the relevant RSS and will cover both resource allocation and land use for a region. In practice, these plans will be a consolidation of the current policy statements, regional and district plans, and are likely to look somewhat similar to the Auckland Unitary Plan.
Amongst other things, a NBE Plan must manage effects (including cumulative effects); achieve environmental limits and targets; ensure integration of infrastructure with land use; and ensure there is sufficient development capacity for housing and business.
Although it is intended that the planning framework will be “front-loaded” to provide as much direction and certainty as possible, resource consents will still be part of the resource management system. Consenting decisions will continue to be made by local authorities in accordance with NBE plans (and we will address the amended pathways in more detail in a later update).
Processes - how are the planning documents produced?
RPCs will be primarily responsible for developing both RSS and NBE plans. We will address the key entities that will be involved in the new system including RPCs, in a later update.
The procedural steps for a RSS are set out in Schedule 4 to the SP Bill. Although there appears to be some nominal flexibility for RPCs to determine their own process, when taking into account all of the matters that the process needs to comply with there may end up being little room for movement. At a high level, the RSS process needs to support quality decision-making, encourage participation and comply with Māori participation arrangements. Schedule 4 does not appear to require a public hearing (only written submissions), but does provide an opportunity for further comment on a draft strategy, if the RPC proposes to adopt a RSS that is materially different from a notified draft.
The process for developing NBE plans, in Schedule 7 of the NBE Bill, is more overtly prescriptive. NBE plans will be developed through a process of notification, primary and secondary submissions and evidence, and a hearing by an Independent Hearings Panel (IHP). One notable change from the ‘standard’ Schedule 1 RMA process is that the new process allows “enduring submissions” to be lodged before notification of plans and throughout the plan hearings process, to reduce complexity and repetition for participants.
IHPs will then make recommendations to the RPC that will be responsible for preparing and making final decisions. No formal decision-making or ratification by constituent councils is required, although we do note there is provision to include statements of community outcomes and statements of regional environmental outcomes in NBE plans, to provide local authorities with a mechanism to directly input a (somewhat limited) local position.
If an IHP recommendation is accepted by the RPC, appeals will be limited to points of law. Conversely, where an IHP recommendation is rejected, de novo appeals can be made to the Environment Court concerning the merits of the decision.
Please get in touch with any of our contacts if you would like more information or advice about how the RMA reforms may impact you.
For our other updates on the proposed new legislation, click the 'Beyond the RMA series' tag above.
Special thanks to Sal Lennon for her assistance in preparing this article.