4/07/2023·5 mins to read
RM Reform: key amendments to the planning and consenting framework
This is our second of two updates covering the key amendments recommended by the Select Committee to the Natural and Built Environment Bill (NBE Bill) and the Spatial Planning Bill (SP Bill). A summary of all the key amendments is set out in part one.
In this part we discuss the National Planning Framework (NPF), the new planning documents, the players involved in the new regime (including the Regional Planning Committees (RPCs)), and the process for transition to the new system.
The NPF, and new planning documents
The first NPF is now required to carry over the current RMA national policy direction, and provide direction for the development of Regional Spatial Strategies (RSS).
As we discussed previously in our series on the bills as introduced, the fact that the existing national policy direction was prepared under the RMA but will persist under the NBE Bill could cast doubt on whether the NBE Bill’s purpose is a meaningful change from that of the RMA. That will likely become clearer in the future, if subsequent iterations of the NPF depart significantly from the first NPF or not. For a start, we expect to see a first NPF that closely resembles the existing NPSs (but which does not directly copy from them, as integration will be important – as will aligning with the new system outcomes).
The Select Committee has largely kept the NPF, RSS and NBE Plan framework intact, with a few tweaks. These include:
- Once a RPC has been formed, it will have three years to adopt its first RSS. As we explained in our previous FYI, the RSS must be consistent with the NPF and an NBE Plan (if in place). The NBE Plan must also maintain consistency with the RSS. It appears that the framework still anticipates RSS preparation before NBE Plans, rather than those documents being prepared concurrently.
- The Select Committee has recommended introducing more specific matters that are to be included in a RSS. These include issues relating to natural hazards, the effects of climate change and the protection of highly productive land.
- A definition of “strategic content”, which is something that must be included in NBE Plans, has been included in clause 102.
Changes to the key players involved in the new regime
Our earlier series considered the entities that will be involved in the new regime, their roles, and how they will be expected / required to work together through transition and beyond. This included RPCs, the Limits and Targets Review Panel (L&T Panel), the National Māori Entity and Iwi and hapū committees.
Some of the key concerns raised with this aspect of the new regime were that:
- there is limited guidance on composition arrangements;
- there is potential for political interference by local authorities through appointment policies, despite RPCs being independent bodies;
- there is a lack of clarity around the operation and funding of the RPC;
- there is no clear funding for the establishment of iwi and hapū committees and Māori appointing bodies.
The Select Committee has addressed some of these issues, as outlined below.
Composition arrangements / political influence
Local authorities, and iwi and hapū committees must reach agreement on the number of members within an RPC, and how many of these positions will be appointed by either local authorities or Māori appointing bodies.
Although there is now more specificity in terms of who is responsible for the agreement and determination of composition arrangements, there is still a degree of uncertainty. In particular, it is still largely left up to local authorities and iwi and hapū committees to determine RPC membership, and there is no guidance on whether proportionate membership is appropriate.
The operation of the RPCs was initially unclear (were they subject to the Local Government Act (LGA) or not), and in response the Select Committee has recommended amendments to provide certainty in relation to the LGA and Local Government (Auckland Council) Act provisions that will apply to RPCs. In summary, the decision making, consultation and meeting provisions that apply to local authorities will be engaged for RPCs, as if they were a local authority (unless there is conflict).
The application of the LGA / LGACA to the RPCs is significant, in that it brings about the risk of judicial review. In transitioning to the new planning regime, RPCs will need to ensure that they are aware of, and have been properly advised on, their duties and functions in relation to this legislation, and any potential decision-making risks they could face.
Funding of RPCs
Multiple amendments have been recommended to clarify that the funding of RPCs is a “function and duty” of a local authority. The statement of intent provisions (clause 38) have also been tweaked to provide more specificity and engagement with appointing bodies around funding requirements. While this amendment clearly places funding responsibilities on local authorities, the mechanics and framework around how multiple local authorities will fund one RPC have not been addressed in detail.
Funding of iwi and hāpu committees.
The uncertainty surrounding funding for iwi and hapū committees has been somewhat overlooked by the Select Committee. This is in spite of the NBE Bill creating heightened expectations and increased roles for iwi and hapū committees in various processes.
If Māori capacity to consult and engage in these new processes is not adequately supported, then these responsibilities could prove more burdensome than beneficial, and run the risk of being side-lined.
Key changes to this part of the NBE Bill include that “controlled activities” have been re-labelled as “anticipated activities” (i.e. activities that are anticipated under the NPF or NBE plans), to avoid confusion with the term “controlled activity” in the RMA.
The criteria for determining an activity’s category has also changed:
- Permitted activities: There is more flexibility for categorising an activity as a permitted activity. Whereas before the positive and adverse effects had to be “known”, now it is sufficient if the effects are “identified and are well understood”. The drawbacks are that the Minister / RPC must be satisfied the effects can be “avoided, minimised, remedied, offset, or compensated for”, and the activity cannot breach a “relevant” limit. It is unclear to us how the concepts of offsetting or compensation will be able to be provided for permitted activities, and therefore whether they will in fact be used in the NPF or NBE plans.
- Anticipated activities: this category now appears narrower. This is because, in addition to the requirements that existed at first reading, the activity must now not breach a relevant limit.
- Discretionary: this category has been widened, and now applies wherever the activity needs to be assessed to consider whether consent conditions are required.
- Prohibited: Arguably the category has been widened. Now an activity is prohibited if it is “not consistent” with relevant outcomes, which has changed from the previous wording of “would not contribute to” the relevant outcomes. This change will make it important for both the NPF and any regional plans to clearly identify the outcomes that are “relevant” for the purpose of categorising activities.
While much of the regime for notifying resource consent applications has been retained, there are some changes. For example, when deciding in the NPF whether notification is required, there is a presumption that anticipated activities should be processed without public notification and discretionary activities should be publicly notified. These presumptions can be departed from where appropriate.
Transition and implementation
The Select Committee has recommended significant changes to the implementation and transition provisions. Once the Bill receives Royal assent, the majority of the provisions will come into force. The NBE Bill at first reading had few provisions coming into force with Royal assent.
However, this does not mean that the new system will be in place quickly, and transition is expected to take many years. For example, the resource consenting, designation, notices of requirement and certificates of compliance provisions will not take effect in any region until the region moves to the NBE framework.
A region will come under the NBE framework when the NBE Plan for that region is treated as operative (this is 10 working days after a RPC has published the decisions version of the plan on the Internet).
The first plans developed by a RPC do not have any legal effect until they are operative (unlike future plans under the NBE, or existing RMA proposed plans). Any resource consents applied for after the operative date for the relevant NBE Plan will be determined under the NBE Act. Resource consent applications lodged but not determined before the NBE Act applies in a region will be considered under the RMA. When the NBE Act framework is in force for a region any pre-existing designations, certificates of compliance and resource consents (determined under the RMA) will be treated as the equivalent NBE Act instrument until they expire/lapse.
National Planning Framework
The first NPF proposal must still be notified within 6 months after the date of commencement of Part 3 (which comes into force when the Bill receives Royal assent). The first NPF must carry over the policy of the RMA national direction, and provide direction for the development of the RSSs that will follow.
The SP Bill
The SP Bill comes into force once it receives Royal assent. RSSs must be adopted three years after a RPC is established. However, the appointment of RPCs may be significantly delayed given there is no indication of when these appointments must be completed. The original requirement that RSSs had to be adopted seven years after the Royal assent of the SP Bill has been removed.
As we noted in our FYI on the transition, there was a lack of direction in the NBE Bill around when and how the new fast-track pathway would become available to applicants. The Select Committee has recommended that the resource consenting provisions in the NBE Bill, including the fast-track provisions, come into force on Royal assent and new directions to clarify how the processes will operate during transition. The Committee’s recommendation goes some way toward addressing the gap created by the self-repeal of the existing fast-track pathway in July but the availability of the new process will depend on when (and whether) the NBE Bill passes into law.
The RMA reform has generated increasing amounts of political interest since it was introduced. There is strong opposition to the Bills from all except the Labour party, which reflects the huge number of submissions and the concerns they raised.
The Select Committee has made a significant number of amendments to the Bill to attempt respond to concerns. However, it is clear that it is simply not possible to address all the issues raised within the time available. We anticipate that where new concepts have been introduced, there is a high likelihood of litigation if they have not been adequately defined, although we acknowledge that much understanding of the system will hinge on the development and content of the NPF.
There remains the very real potential that things have been missed or glossed over, and we anticipate that there will be tinkering with the new legislation for many years to come, potentially even before the RPCs are able to commence their RSS and NBE plan development.