The latest stage in the Government’s Resource Management Act (RMA) reform brings a series of amendments to almost all parts of the suite of National Direction that applies under the RMA. 

The current package of National Direction comprises eight national policy statements (NPS’), 10 national environmental standards (NES’), and additional regulations made under section 360 of the RMA.  The policy direction they provide then flows into regional policy statements and regional and district plans, which are required to give effect to it.

The Government is proposing four new pieces of National Direction and amendments to 12 others. Those changes are intended to “help New Zealanders get things done” while the Government continues to work towards the introduction of new legislation to replace the RMA (see our previous article here).

In this article we briefly discuss the background to the reforms, outline the key changes proposed to National Direction, and provide our comment on their implications.

Recap: resource management reforms to date

The new and amended National Direction instruments form part of Phase 2 of the Government’s three phase RMA reform programme (see our overview of that programme in our previous article here).  

The changes to National Direction accompany the Resource Management (Consenting and Other System Changes) Amendment Bill and are intended to comprise a series of “quick wins”, that address perceived shortcomings in the current planning framework and ease restrictions on development. To address previous criticism of misalignment between pieces of National Direction, these reforms are being progressed as “one national direction work programme”.

Four packages of reforms: four new pieces of National Direction and amendments to 12 others

The proposed changes have been grouped into four packages:

Despite those groupings, the reforms are complex and wide-reaching. For example:

• some pieces of National Direction, such as the NPS for Freshwater Management (NPS-FM), are proposed to be amended as a part of more than one package; and
• while some packages are obviously targeted at particular sectors, the changes proposed may have wider impacts. For example, the “Primary sector” package includes changes to the NPS for Highly Productive Land (NPS-HPL) that will make more greenfields land available for urban development, and changes to the New Zealand Coastal Policy Statement (NZCPS) that will impact a range of industries and infrastructure providers. 

A further complexity is that the actual wording is only available for some of the proposed amendments. There are instances in Package 2 where the Government has indicated the potential for additional or consequential amendments, for which no wording is provided, that may be required following consultation. Where the reforms are targeted, such as the removal of an existing clause or amending an activity status, this is unlikely to be problematic. However, where the reforms are more complex, such as those proposed to the NPS-FM, the absence of drafted provisions for some amendments may make it more difficult for submitters to identify how the amendments may affect them, or where the amendments may have unanticipated consequences. This is significant as we do not expect there to be any further consultation on the reforms proposed in Package 1 and 2 before final decisions are made by the Government.

In Package 3, there are instances where the Government has identified certain policy problems or objectives, but does not have preferred reform options, so it is instead seeking feedback on a range of potential options. The Government intends for this feedback to inform an exposure draft of proposals, with a further round of consultation later this year.

Package 1: Infrastructure and development

The first consultation package contains a host of changes that the Government hopes will empower councils to plan and deliver infrastructure and development, including four new pieces of National Direction:

• NPS for Infrastructure. This NPS seeks to enable infrastructure and rebalance National Direction. It seeks to ensure that greater emphasis is given to the benefits of infrastructure in the decision-making process, to make the management of infrastructure more consistent between districts and regions, and better coordinate infrastructure planning with planning for other land uses. We agree that clear National Direction for infrastructure is important. Currently it can be difficult and costly to secure the necessary RMA approvals for infrastructure in more sensitive environments (such as the coastal marine area or significant natural areas). The proposed changes will go some way to addressing this by requiring decision makers to recognise and provide for the benefits of infrastructure, as well as the functional and operational need for infrastructure to be located in particular environments.  Importantly, infrastructure is defined broadly, and includes social infrastructure (such as schools or hospitals) and stormwater and waste disposal infrastructure which are not within the scope of the RMA’s definition. It doesn’t include renewable electricity generation or electricity transmission and distribution which are dealt with separately.  
• NPS for Natural Hazards. Due to a perception that councils are taking an inconsistent, and in places inappropriately risk-averse, approach to natural hazard management, this proposed new NPS seeks to ensure that a more consistent and risk-based approach is taken for areas that may be at risk from natural hazards. The NPS is focussed on taking a “proportionate” approach to risk, which in our experience is what generally occurs now. However, the direction to consider standardised risk levels (and a risk matrix) alongside uniform definitions and language will hopefully assist to achieve a more consistent national approach. The NPS will be immediately applicable to proposals for consent and plan changes, and requires a proportionate approach to manage any risk - but without going so far as to direct consent / planning authorities or applicants as to how to respond to each level of risk. We expect that this will likely put greater focus on hazard risk assessments, in particular the assessment of likelihood / consequence, and place the onus on an applicant to convince decision-makers that appropriate mitigation options exist.
• NES for Granny Flats. This NES will enable one minor residential unit (a small, detached, self-contained, single-storey house) per site for residential use as a permitted activity.
• NES for Papakāinga. This NES is intended to enable small-scale papakāinga development (up to 10 homes) on certain types of land in rural zones, residential zones and Māori-purpose zones.

The amendments to four existing pieces of National Direction relate to the electricity generation, electricity transmission and telecommunications sectors.   

While it is included in the primary sector package rather than the development package, the amendments proposed to the NPS-HPL will be of interest to infrastructure and developers too. These reforms will mean that land which is classified as “LUC 3” will not be subject to the NPS-HPL, removing a significant restriction on the ability to use that land for urban development. However, it is also proposed that regional councils be given more time to map highly productive land in their regions. This could have a perverse effect, given that prior to the completion of this mapping the NPS-HPL does not allow an applicant to undertake its own soil testing to demonstrate that its land is not in fact highly productive. Those interested in infrastructure and other development may want to consider making submissions to that effect.

Package 2: Primary sector

The second package of reforms is directed at enabling growth of, and reducing costs for, the primary sector. As noted earlier, on a closer inspection some of the changes go further and will have implications beyond the primary sector. While no new National Direction is proposed, amendments are proposed to the:

• NZCPS;
• NPS-HPL, which we have discussed above;
• NES for Marine Aquaculture (NES-MA);
• NES for Commercial Forestry (NES-CF); and
• Resource Management (Stock Exclusion) Regulations 2020.

In respect of the two NES’ that are being amended, the changes generally comprise targeted tweaks to activity statuses and conditions, and the repeal of regulations that the Government considers to be inefficient and overly costly. 

The changes proposed to the NZCPS are twofold. First they seek to provide stronger direction for decision-makers to provide for aquaculture activities. Second, and of broader relevance, they address recent case law on the interpretation of the NZCPS (see our previous article here) and seek to strengthen the language in the NZCPS that recognises the functional need for certain priority activities (specified infrastructure, renewable electricity generation, electricity transmission, aquaculture, and resource extraction) to be located in the coastal marine area. However, without changes to the NZCPS policies relating to reclamation and effects on indigenous biodiversity, in our view the changes may not be as enabling of these activities as the Government hopes. 

The changes relating to aquaculture will be of interest to those who operate in the coastal environment, including port companies, given the enablement of aquaculture in “aquaculture settlement areas” designated under the Māori Commercial Aquaculture Claims Settlement Act 2004. Those changes, as well as those to the NES-MA, could be significant, and may result in new conflicts between port and aquaculture activities.

There are also targeted amendments to the NPS-IB, NPS-FM and NPS-HPL to make the definitions and consenting gateways under each instrument consistent and more enabling of quarrying and mining.

Package 3: Freshwater

The third package focuses on amendments to the NPS-FM and the National Environmental Standard for Freshwater (NES-F). 

Significant changes are proposed to the NPS-FM, including:

• changes to the role of Te Mana o Te Wai, the key concept and framework within the NPS-FM. The options under consideration include reverting to the 2017 framing, removing the hierarchy of obligations, or removing Te Mana o Te Wai entirely; 
• the reintroduction of multiple objectives that would see water quality balanced with other considerations eg economic opportunities and costs and community expectations;  
• changes to provide more flexibility in freshwater management, including by giving councils more flexibility to decide on environmental limits; 
• changes to simplify wetland regulation, including to provide greater certainty to farm operators about the activities that can be carried out as of right, or with a consent, in or around a natural inland wetland. These changes could be very significant for those undertaking activities in rural environments, but appear to retain the more restrictive provisions that currently apply to those undertaking urban development on greenfields sites.

Adjustments to the NES-F follow last year’s repeal of intensive winter grazing rules. The Government is seeking input on how to best simplify requirements around fish passage, nitrogen fertiliser, and wetlands and culverts.

The Government is also seeking feedback on whether the changes proposed as a part of this package should be implemented now, or if they should instead be incorporated into or made under the upcoming replacement legislation for the RMA. These changes to freshwater regulation will have significant implications and should ideally be enduring to provide certainty to operators and regulators alike. The NPS-FM was replaced in 2014, amended in 2017, replaced again in 2020, and further amended in 2022, and in 2024. Repeated changes reduce certainty and increase costs for all stakeholders while delaying improved outcomes for the environment. If the replacement of the RMA is likely to lead to further amendments to the NPS-FM, it could be challenging to justify requiring regional councils to implement an amended NPS-FM now rather than waiting for the primary legislation that will replace the RMA to be drafted so that the objectives of the reformed NPS-FM align with the new legislative purpose and framework. 

Package 4: Going for Housing Growth

While not yet open for consultation, the fourth package looks to integrate “Pillar 1” of Government’s Going for Housing Growth programme, which relates to freeing up land for development and removing unnecessary planning barriers, into the new resource management system. Further information on this package is expected to be announced in early June. Our previous update (here) set out the detail of the Going for Housing Growth programme.

Previous policy announcements were based on the current RMA system and it will be interesting to see how the Pillar 1 policies might fit into the new system. For example, aspects of “Pillar 1” like the proposed removal of restrictions on apartment sizes and balconies may become less relevant under the new regime which focuses on “externalities” (the idea that development will be permitted as of right, except where it has adverse effects on either the natural environment or on a neighbour). 

Previous government announcements (see our previous article here) had indicated that there would be seven new pieces of National Direction. As only four have been announced so far, it is possible that the remaining instruments will form part of this final package. We expect that this package will involve changes to the National Policy Statement on Urban Development 2020.

Streamlined process for decision-making on the proposed National Direction package applies

The Resource Management (Freshwater and Other Matters) Amendment Act 2024 ‘streamlined’ the process for the Government to make these changes. Most notably:

• the Board of Inquiry process for hearing submissions on proposed National Direction and for making recommendations to the Minister has been removed; and
• the scope of the evaluation reports required to be prepared in support of National Direction, or changes to it, have been simplified.

Under the new simplified system, the Minister is only required to give public notice of the proposed National Direction and their reasons for believing it is consistent with the purpose of the RMA. Submissions on the first three packages of National Direction are due in just under a month, at midnight on Sunday 27 July. 

A report and recommendations on those submissions and the proposal itself will then be made to the Minister. We understand that the Government intends for decisions on the new package of National Direction to be made, and for it to take effect, before the end of 2025.

Our comment

Given National Direction drives the development of regional policy statements and regional and district plans, and is also influential in consent applications and notices of requirement, these amendments will be highly significant to those operating in the RMA space. 

One of the key unanswered questions is how directive some of the new changes will be, and whether there are any specific implementation timeframes. Given the acknowledgement in the NPS-NH that implementation through plan changes will not be required while the RMA reform juggernaut rolls on, we expect that for some of these changes they will be felt at the consent stage first, as opposed to through Council-initiated plan changes. 

Our experience is that the current suite of national policy contains plenty of conflict and uncertainty, and it has proved a great source of frustration and litigation over recent years. The Government has said that these changes are intended to improve consistency between pieces of National Direction. However:

• not all conflicts between competing pieces of National Direction have been resolved. We expect that current hurdles in the consenting and policy making process will remain where parties are required to reconcile conflicting NPS; and 
• given the broad range of National Direction to be amended or introduced, and that drafting of some of the proposed changes is not available, the risk of unanticipated conflicts as a result of these amendments remains. We recommend making use of the chance to submit on the proposals so that the final form of the National Direction has the benefit of insights from those who will need to work with them.

Engagement on any changes to National Direction will also be crucial looking forward to phase 3 of the Government’s RMA reforms. This is because the Government has indicated that the changes are expected to align with the future RMA replacement legislation and may inform future reform paving the way for a smooth transition. The extent to which this will be possible remains to be seen, given these amendments to National Direction address matters relevant to achieving the purpose of the RMA, and not the different framework that will apply under the replacement legislation.

Contact us

To learn more about the changes that have been proposed, or for assistance with preparing a submission, please contact one of our experts listed below.

Special thanks to Ashe Wainui-Mackle for his assistance in preparing this article.

Further reading

Simpson Grierson has been following the Government’s RMA reforms closely. You can read our past commentary on the reforms here.