On 23 June 2023, we gave a brief summary of the legislation set to reform the Resource Management Act 1991 (RMA) and the submissions provided by the ADLS Environment and Resource Management Law Committee on the Natural and Built Environment and Spatial Planning Bills.
On 27 June 2023, the Environment Select Committee published its reports on the bills.
Rather than attempting to summarise the 1377 pages of reports and revised bills, this article captures the flavour of where the RMA reform is heading and questions whether the issues submitted on by ADLS have been addressed.
Main legislation
The Natural and Built Environment Bill is the main piece of legislation to reform the RMA. It provides for the making of planning rulebooks (Natural and Built Environment Plans), guided by a national planning framework and regional spatial strategies (addressed in the Spatial Planning Bill and discussed further below). The bill also provides the detailed mechanics for obtaining resource consent or other environmental approvals, as well as addressing compliance, monitoring and enforcement.
The report on the Natural and Built Environment Bill runs to 154 pages (including minority differing views). The report reflects the volume of material received, as well as the number of changes to the bill the select committee has recommended.
The committee received written submissions from 2,945 groups and individuals and heard oral evidence from 365 of those submitters.
The majority of the select committee has recommended that the bill be passed, subject to amendments recommended in the first 145 pages of the report. Three differing views are also recorded:
- the National Party decries the bill as repeating the mistakes of the RMA and being worse than the status quo;
- among other criticisms, the ACT Party says the bill introduces vague and puzzling concepts without definition, a “recipe for judicial mayhem”; and
- while the Green Party acknowledges the improvements through the select committee process, it identifies eight shortcomings ranging from a return to “overall broad judgment” to an absence of commitment to invest to fill information gaps before making decisions.
As summarised in our recent LawNews article, the ADLS submission identified a range of issues with the bill, including:
- its length and complexity;
- a missed opportunity to structure the bill clearly; and
- the bill’s approach of removing or replacing established principles with new concepts results in a possible loss of clarity and workability.
The changes
Unsurprisingly, similar issues were raised by many submitters and they have been a focus of the Environment Select Committee’s work on the bill. To that end:
- The bill has grown from 861 sections and 15 schedules to more than 900 sections and 16 schedules. However, a significant number of improvements have been made in an attempt to clarify or reduce complexity in the bill. A common criticism (including from ADLS) was with the confusion in the bill’s provisions relating to when resource consents would be notified for submission. Those provisions have been clarified and improved.
- The Environment Select Committee has proposed a major restructure of the bill, which is so significant that the report includes an appendix to help readers find where sections have moved to. The bill is now more logically divided, with related provisions contained in the same parts or schedules. This is a major improvement to the structure and organisation of the bill.
- Although the report suggests existing case law will be reflected where possible, the bill continues to introduce a wide range of new concepts. Chief among these is the bill’s purpose. The Environment Select Committee has recommended replacing the bill’s dual purpose with the sole purpose of upholding “te Oranga o te Taiao”, along with an updated definition of that concept. Further, the new purpose section contains a clear expectation that protection of the natural environment comes first. The purpose must be achieved in a way that protects the health of the natural environment and, subject to doing so, use and development may occur. This is a noteworthy shift away from the RMA’s “sustainable management” and seems destined to result in litigation.
While some parts of the bill are unchanged, the committee recommends many other important changes – far more than we can address in this article.
However, a consistent theme echoes throughout the Environment Select Committee’s recommended changes – a shift away from “balancing” protecting the environment and using resources towards a “bottom line” of protecting the natural environment, before using resources.
For example, the bill is clear that conflicts between competing system outcomes should be resolved in favour of protecting the health of the natural environment and its capacity to sustain life.
Spatial Planning Bill
The Spatial Planning Bill serves a narrower purpose than the Natural and Built Environment Bill. It proposes the creation of 16 regional spatial strategies throughout New Zealand, to provide for integrated planning of environmental issues, as well as other important issues such as transport and infrastructure.
Regional spatial strategies are a key piece of the new framework. They must give effect to the national planning framework and, in turn, natural and built environment plans must be consistent with regional spatial strategies.
The report on the Spatial Planning Bill is 24 pages long and responds to 610 written submissions. The majority of the committee has recommended that the Bill be passed, subject to relatively minor amendments (particularly when compared with the amendments to the Natural and Built Environment Bill). Two differing views are recorded:
- the ACT Party opposes the bill for a range of reasons, including concerns about handing planning and decision-making to unelected cogovernance entities (regional planning committees); and
- the National Party, for the same reasons it has criticised the Natural and Built Environment Bill. The ADLS submission on the Spatial Planning Bill questioned its integration with the Natural and Built Environment Bill and sought clarity and greater prescription around how regional planning committees were to consult with the community on the preparation of regional spatial strategies.
To its credit, the select committee has attempted to address these issues:
- changes to both the Spatial Planning Bill and the Natural and Built Environment Bill have been recommended to improve their integration; and
- the process for preparing and consulting on regional spatial strategies has been clarified. While the bill still provides considerable flexibility for regional planning committees to design their own overall process, any such process must contain the minimum requirements in schedule 4 of the bill. These minimum requirements includes mandatory public hearings, something that was sought by ADLS in its submission.
Compared to the Natural and Built Environment Bill, the Spatial Planning Bill came through the select committee process largely unscathed. However, a question remains as to whether the Spatial Planning Bill is required as stand-alone legislation, or if it should be merged into the Natural and Built Environment Bill, especially as the purpose of the bills are now even more closely aligned. We are not advocating that the Natural and Built Environment Bill be lengthened, but the close relationship between regional spatial strategies and other parts of the new system would seem to support closer integration.
Comment
At its core, the revised system comprises a new (as yet untested) purpose, implemented through a hierarchy of planning documents, one prepared at a national level (the national planning framework) and two at a regional level (regional spatial strategies and natural and built environment plans).
Success or failure of the system will turn on the preparation of the national planning framework and its implementation through regional documents. While this presents an opportunity to reset the system from the top down, in practice it will mean significant debate about the contents and expression of documents at all levels. Underpinned by an apparent desire to begin the 10-year transition to the new system expeditiously, the Natural and Built Environment Bill clarifies that the first national planning framework will be based heavily on existing RMA national direction (as it was on 31 May 2023). While the efficiency of that approach is understandable, it raises questions about how effective the early stages of transition will be if they are underpinned by policy direction made under a statutory purpose that is intentionally being replaced.
The national planning framework is expected to be released this year for submissions, followed by a hearing process that will be crucial for determining the key parameters of the new system. The national planning framework can then be expanded to include matters beyond existing national direction up until January 2028.
In its submission, ADLS emphasised the importance of the reform and the need to take the time to ensure the new system delivers on its promise of an efficient, simple and workable framework.
Green Party MP Eugenie Sage has noted the bills still need a significant amount of work through parliamentary debate and she scored the revised bills a “seven out of 10”.
Despite this, all indications are that the Natural and Built Environment and Spatial Planning Bills will be passed into law before Parliament rises at the end of August 2023 – such is the power of Labour’s majority.
If that happens and the National Party forms part of the next government, it has been clear that it would repeal the Bills by Christmas. With the National Party having its own criticisms of the RMA, that would not signal the end to the period of reform.
Regardless of whether the bills are passed or the outcome of this year’s election, it is clear that resource management and environmental law in New Zealand is set for a prolonged period of upheaval while a new system is bedded in.
Mike Doesburg and Patrick Senior are co-convenors of the ADLS Environment and Resource Management Law committee. Doesburg is a partner at Wynn Williams and Senior is a senior associated at Russell McVeagh.
ADLS will be offering a comprehensive CPD event on the bills, both for general practitioners and RMA specialists.
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