12/12/2022·5 mins to read
Beyond the RMA: What comes next - Update #6: Transition to the new regime
This is our sixth and final update on the recently introduced Natural and Built Environment Bill (NBE Bill) and Spatial Planning Bill (SP Bill). The Bills have been referred to the Environment Select Committee for further consideration, and submissions on the Bills are due by 5 February 2023 (extended from the original date of 30 January 2023).
This update addresses how the Bills propose to transition from the RMA to the new regime.
For our other recent updates on the proposed new legislation, see the links at the bottom of this page. We hope the more in-depth analysis of the Bills through our series, has given you an in-depth understanding of how the Bills will affect you. Do get in touch if you would like assistance in drafting submissions on the Bills.
For our other recent updates on the proposed new legislation, click the 'Beyond the RMA series' tag above.
The full transition will take time, potentially up to 10 years.
There will be significant work involved, particularly in the policy planning space, before full transition can be completed.
The Bills would benefit from greater clarity in terms of the transition, particularly in relation to if (and how) planning documents prepared under the new regime will apply to RMA plan changes / consenting / designation proposals lodged while the RMA is in force.
Subject to the above point, it appears that there will be little practical change for day-to-day planning / consent processes under the RMA until decisions on the new NBE plans are made.
Key transition steps
Moving through transition, the following actions must be completed:
National Planning Framework (NPF) - must be notified within six months after the NBE Bill is enacted.
Regional Planning Committees (RPC) - must be established by a time determined by the Minister in regulations.
Regional Spatial Strategies (RSS) - must be publicly notified either on a date set by the Minister by Order in Council, or seven years after the SP Bill is enacted.
Natural and Built Environment plans (NBE plans) - must be prepared within four years (plus 40 working days) after a decision by the RPC to adopt the RSS.
Commencement of the NBE Bill
The NBE Bill will come into force in three stages:
|1||Purpose and principles, the NPF, transitional provisions, principles of biodiversity, cultural heritage offsetting, information required in applications for resource consents, and Environment Court.||The day after Royal Assent.|
|2||Provisions governing who can be a requiring authority.||3 months after Royal Assent.|
|3||The remainder of the NBE Bill.*||A date recommended by the Minister (by Order in Council) with provision for regional differentiation.|
|*||Schedule 8 (which relates to RPC appointment) is an exception.||Can only be brought into force when certain Treaty settlement and Mana Whakahono ā Rohe and Joint Management Arrangements have been agreed (with a two-year post Royal Assent backstop position).|
Commencement of the SP Bill
The SP Bill is much simpler: it comes into force the day after it receives Royal Assent.
In effect, the SP (Act) will sit in waiting until the first NPF has been developed. After that, a date will be notified for the notification of the first draft RSSs (or at latest, seven years after Royal Assent). The Minister must consult the RPCs before notifying any date.
There is limited statutory provision for cross-over between the RMA and the SP Bill, in terms of information that should inform the first RSSs. RPCs may incorporate from “operative RMA planning documents”, information on the state / characteristics of the environment; and decisions on whether areas or features of the environment have particular characteristics, should be classified in a particular way, or meet related criteria that are set out in legislation. Of note, RMA planning documents is defined, and excludes any spatial plans or strategies prepared under the LGA, or future development strategies prepared under the NPS-UD.
While the RPCs must consider whether the information in existing RMA planning documents remains robust, the ability to incorporate could lead to some efficiency gains, and may give councils (in particular) some comfort that their existing RMA plans and policy statements will not be set entirely aside. We expect that councils may want to seek for this provision to be expanded, so that the RPCs can consider a wider range of spatial strategies and plans when preparing RSSs.
What does transition look like under the Bills…
- For national direction?
There is provision for new national direction to be issued under the RMA, or existing direction to be amended, during the transition period. This is subject to certain process and natural justice requirements, which could involve a joint process for the first NPF and amendments to existing (RMA) national direction.
The intention here is to provide a means to achieve as much national consistency as possible between the two regimes during transition, particularly as the NPF is being prepared. Looking ahead, this could be important to avoid the NBE Bill system outcomes from being undermined in the interim, but it could also lead to additional complexity for RMA processes given the different purposes of the RMA vs the NBE Bill (for example, developing RMA direction to achieve the system outcomes may be challenging when considered against the existing Part 2 matters).
There is no current acknowledgement of any interplay between the RMA and NBE Bill (relative to the NPF), which is an area where additional clarity is critical. Without any provisions that expressly address this point, there is a high chance of confusion - particularly if there is difference in the expression of national direction under the two regimes. This should be clarified.
- For plan making?
In the interim, there will be no change to plan making under the RMA. There are no changes in either Bill to any relevant RMA provisions that guide the development of plans (regional or district) or policy statements, or which require them to be updated to reflect the NPF (or indeed a RSS). Other than the potential for new and amended RMA national direction, which is no different from where we stand now, plan making will continue as we know it.
What is important to be aware of however is that any RMA plans or policy statements will cease to have any further legal effect from the notification of the RPC’s decisions on the first NBE plan (for the relevant region). Anyone considering a private plan change will need to think carefully about the strategic value in making a request as we move into the transition period, particularly given the RPCs will not be bound to adhere to or adopt existing operative planning documents in the RSS, or NBE plan.
- For consenting / designations?
The impact of transition on consenting under the RMA is uncertain. There is a lack of clarity in relation to how (or even if) the NPF or RSS prepared under the Bills will interface with RMA processes.
The NBE Bill provides that the consenting requirements set out in plans prepared under the RMA will continue to apply until the RPC notifies its decisions on NBE Plans. This means that after the NBE Bill comes into force, resource consents will still be applied for under the RMA, and will be assessed against the relevant RMA provisions and existing district and regional plans.
There is no express carve-out or provision which confirms that consenting or designation processes during the transition should consider only RMA documents. It is possible that this detail has been left for inclusion in the (yet to be released) NPF, but that is also unclear. Without an express direction on this issue, it could be argued that section 104(1)(c) or 171(1)(d) will capture the NPF (or any operative RSS) as a matter the consent / territorial authority should consider as relevant and reasonably necessary to determine the application.
This could create confusion if the strategic direction in the NPF or RSS materially differs from RMA documents, and there is insufficient direction to guide decision-makers on how inconsistencies should be resolved (or about the weighting between the two regimes). Alternatively, it could be considered beneficial for the NPF and RSS to apply to any RMA processes in the meantime, so as to ensure that the NBE system outcomes are not inadvertently (or intentionally) undermined by development.
Another uncertainty is that once the NPF has been published, it is not clear when any framework rules included in the NPF will take effect, and at what point consents will be required under those rules. If the framework rules will have teeth prior to the relevant NBE Plan taking effect, then this could mean consenting under the RMA and NBE (Act) concurrently.
We expect that these issues could be addressed relatively easily through the select committee process, but whichever way it goes it will likely be contentious.
Another uncertainty with transition relates to the new fast-track pathway for specified housing and infrastructure projects. This is based on the existing pathway provided under the COVID-19 Recovery (Fast-track Consenting) Act 2020 (FTCA). The pathway under the FTCA will no longer be available from July 2023, when that Act self-repeals, and it is unclear when the new fast-track pathway under the NBE Bill will come into effect. Unless the potential gap is addressed through legislative amendment (to the FTCA) or the Minister makes the necessary regulations urgently, no fast-track pathway will be available in the intervening period.
- From a timing perspective?
Other than for the NPF, the Bills provide flexibility for the RPCs to decide when to notify the RSS and NBE plans. The backstop date is that an RSS must be notified within seven years after the SP Bill is enacted. A NBE Plan must then be notified by approximately two years after a RPC’s decision to adopt a RSS.
On the face of the Bills, there is a possibility that the RPCs could choose to develop RSS and NBE plans in tandem. While the RPCs will likely be developing the RSS with an eye to the NBE plans, it is more likely that the RSS will be in force ahead of the NBE Plans.
As noted above, if an RSS comes into force without the NBE Plan to regulate land use, there will be a period where the RMA may enable use that is not in keeping with the RSS (this is unless councils initiate plan changes to align with the RSSs, as an interim solution, which we consider to be a highly ineffective solution). This is a potential lacuna that may need to be addressed, as the ability to bring existing information into an RSS will not resolve any gap / misalignment within existing RMA documents.
Either way, the timing is important, as is ensuring that the RMA works sensibly alongside the development of the new planning hierarchy. Anyone with development aspirations over the next 7 years should take advice on these provisions, and look to make submissions seeking clarity and certainty either way.
- For the RMA as a whole?
We say goodbye to the RMA entirely when the Minister decides that clause 860 of the NBE Bill will come into force. As outlined above, and as discussed in our previous updates, this is likely to be a decade away - so don’t hold your breath.
Our commentThe NBE and SP Bills amount to ambitious attempts to overhaul the RMA, which was itself an ambitious undertaking. The new Bills enable more central government oversight, seek to depoliticise plan-making, and shift the substantive decision-making burden away from councils. In practice, councils will remain key players in plan-making processes - and they will be tasked with funding and all necessary resourcing for the RPCs.
How the proposed changes are being received will be known in short order when submissions are made, but if the Bills remain in close to their current form, there are obvious battlegrounds for litigation to come - both during transition under the RMA, and after, when the new regime comes into force. Some of those battlegrounds could be reduced or eliminated if the Bills are amended to deal with the issues expressly.
This update series has highlighted several key matters arising from the Bills. Please get in touch if you would like assistance with your submission.
Special thanks to Gemma Plank, Madeline Ash and Tracey Turner for their help in preparing this article.