30/06/2023·4 mins to read
RM Reform: substantial amendments but uncertainty remains
This week the Environment Select Committee released its reports on the Natural and Built Environment Bill (NBE Bill) and the Spatial Planning Bill (SP Bill), two of three pieces of legislation intended to replace the Resource Management Act 1991 (RMA).
We will cover the key amendments recommended by the Select Committee in a two-part series. This is part one, which discusses what the key amendments are and what they are designed to do. In part two, we’ll do a deeper dive into the National Planning Framework (NPF) and the Regional Planning Committee (RPC) framework, including the plans and strategies they have been tasked with developing.
The Select Committee has recommended by majority that both bills be passed, with a very large number of amendments. While some of the amendments are significant, the structure and framework of the reform is unchanged.
National, Act and the Green party issued dissenting views in the reports. Labour has signalled it still intends to pass the Bills before the election, however National has said it plans to immediately repeal the legislation if elected.
The Select Committee’s recommendations have made overall improvements, and the bills have been reordered to improve flow and readability. However, the bills are still highly complex and there are many new terms, phrases and novel concepts that will inevitably result in different interpretations that will need to be considered by the courts.
Summary of the key amendments
- The amendments to the purpose section have clarified that protection of the natural environment will generally prevail over development, but raises the question of whether this will make the legislation sufficiently enabling. The system outcomes have been amended to more closely align with the purpose.
- The Select Committee has largely kept the NPF, Regional Spatial Strategies (RSS) and NBE Plan framework intact, with a few tweaks.
- The criteria for determining the category of activities in the consenting regime has been changed.
- It will still be left up to local authorities and iwi and hapū committees to determine RPC membership. Questions also still remain in terms of funding for Regional Planning Committees (RPCs) and iwi and hāpu committees.
- The Select Committee has recommended significant changes to the implementation and transition provisions with the majority of the provisions in the NBE Bill and the entire SP Bill coming into force immediately. However, the transition is still likely to take many years.
- While a significant number of amendments have been recommended, a large number of submitters’ concerns appear to remain outstanding.
- Although the recommendations are likely to be substantially adopted, the future of the Bills and RMA reform more broadly will come down to the outcome of the election.
In line with previous commentary, the Select Committee found that having a purpose statement with two limbs could be interpreted as a dual purpose, and create uncertainty as to any internal hierarchy. In response, it has recommended that “to uphold te Oranga o te Taiao” become the single purpose of the legislation.
The change that is likely to create the most contention is the clear priority given to “protecting the health of the natural environment” in subclause 3(2). This will surely be welcomed by environmental protection interests, but might be a cause for concern for the development community and infrastructure providers, as it shifts the focus away from “enabling” the use and development of the environment (with those concepts formerly being on an equal footing with protection in the former drafting of clause 3(a)).
While these proposed amendments appear designed to address the concern raised in submissions about the conflict in the purpose statement between enabling use and development and enabling protection, they now reinforce the view that protection of the natural environment will generally prevail under the new system in situations of conflict. This raises a question as to whether the new system will be sufficiently enabling, and much may turn on how the term “uphold” in clause 3(1) will be interpreted and applied in order to support development proposals.
The original system outcomes in clause 5 have been replaced with an amended set of 18 (still non-hierarchical) system outcomes. The direction in clause 5 now refers to “ensuring” that the purpose of the Act is achieved, rather than “assisting”.
The implication of this change is that the outcomes - appropriately provided for in planning instruments - will allow for the purpose in clause 3(1) to be achieved, even though they appear to still push and pull against each other.
Of note, the natural hazards outcome has been softened. It now requires reduction of risk and that “other measures are taken to achieve an environment that is more resilient to those risks”. What “more resilient” means will be open for debate, as at its bare minimum it could mean any change from the status quo that assists with resilience to risk.
The highly productive land outcome has also been amended to create a clear hierarchy that favours the use of such land for primary production, over “inappropriate subdivision, use and development”. What is inappropriate will need to be explained in theNPF and other planning instruments.
To assist with reconciling tension between the outcomes, new clause 5A seeks to clarify that the outcomes are to be provided for in the NPF and creates flexibility to decide not to achieve all outcomes in certain places or at certain times. It encourages the achievement of all outcomes together (compatibility), rather than giving priority to particular outcomes.
Clause 5A appears to align with the new purpose, by placing the starting focus on the health of the natural environment. The approach to reconciling or prioritising outcomes will be front and centre of the debate on the NPF and NBE Plans. It will be important for all persons and entities that will engage in the new system to closely consider what the outcomes mean for their aspirations, as the NPF process may be launched soon after the bills pass into law.
More detail about the NPF will be covered in our next update. It is clear from what we have discussed so far that the NPF will be important in providing clarity and reconciling potential tensions within the system.
Get in touch
If you would like to discuss any aspect of this content, please get in touch with one of our experts, and keep an eye out for part two next week.