RMA reform in sight

By and - , Build 187

Although it is too early to assess the three new pieces of legislation that will replace the Resource Management Act, there are key areas of focus emerging in the reform of our resource management system.

THE RESOURCE Management Act 1991 (RMA) has long been the subject of widespread criticism. In 2020, the government started pushing forward with its intention to replace and reform the current resource management system.

RMA not fit for purpose

Reform is broadly welcomed, with many agreeing that the RMA is not fit for purpose. This stems from issues facing the country such as the necessary change in the face of climate issues, population growth and the worsening housing crisis.

The current processes under the RMA are time consuming, costly and complex. The reform process presents a much-awaited opportunity for government to enact clear and effective legislation that will enable more-efficient decision making and a better plan for the future of our environment.

What is the RMA?

The RMA is a legislative framework for regional and territorial councils to manage the land and environment in their local area. Each council – of which there are currently over 100 – is required to produce plans for the management of land as well as regional issues such as air, water and the coastal marine area.

The plans identify activities that may adversely affect the environment where resource consent is required. Examples include developing land, using coastal space, building a dam or releasing contaminants into the environment. The five types of consents are:

  • water permits – take, use, dam and divert
  • discharge permits – to land, air and water
  • coastal permits – construction, deposit, disturb and alter
  • land use consent
  • subdivision consent.

Restrictions are applied to the project or works depending on the type of activity through conditions on the resource consent.

What is wrong with the RMA?

The RMA is enabling legislation. The issue for councils in administering the RMA is to manage and strike a balance between two competing priorities – protection of the environment and enabling development. However, after years of operating under the RMA, stakeholders began to realise that the RMA was not working. It failed to protect the environment while simultaneously stifling development.

The RMA is complex, and the consenting process adds significant time, cost and uncertainty to projects. Due to this, some commentators suggest the RMA is contributing to the current housing crisis.

These issues and more were highlighted in a comprehensive review of the RMA carried out by a specially appointed review panel led by retired Court of Appeal Judge Hon Tony Randerson QC in 2020.

Three new pieces of legislation proposed

In February 2021, the government confirmed it would repeal and replace the RMA. Three new pieces of legislation will be enacted, largely in accordance with the recommendations of the review panel:

  • Natural and Built Environments Act – this will be the primary piece of legislation. It has a similar purpose to the RMA but goes further to actively protect and enhance the environment, not simply manage the effects. It will set environmental bottom lines that restrict future development in some cases in addition to outcomes and targets. It will also bring recognition of Te Tiriti o Waitangi and Māori concepts to the fore. Given its importance, the government released an exposure draft for public comment in June 2021 prior to drafting the bill.
  • Strategic Planning Act – this introduces mandatory spatial planning. The aim is to have a clear blueprint for development in each region so that infrastructure providers and developers have certainty as to where development should occur.
  • Climate Change Adaptation Act – this is intended to support New Zealand’s response to the climate change crisis by addressing complex issues associated with managed retreat from coastlines and other climate change-related issues.

Key areas of focus emerging

Commentators will be eager to assess if the legislation fixes the current problems under the RMA, but it is currently too early in the process with only a small part of the draft Natural and Built Environments Act released to date.

However, some new key areas of focus have clearly emerged:

  • Shifting from the overall broad judgement – or balancing – approach within the RMA to an environmental bottom line approach.
  • Strengthening the recognition of Te Tiriti principles and the Māori worldview by requiring decision makers ‘to give effect to’ Te Tiriti o Waitangi principles. This proposal is a significant change from the current RMA requirements, which only require the principles to be ‘taken into account’.
  • Consolidating over 100 existing district and regional plans into 14 combined plans across New Zealand. With local government reorganisation to occur after the introduction of the Natural and Built Environments Act, care will need to be taken to ensure that the new plan boundaries are somehow lined up with the new local authority boundaries. This approach will also facilitate stronger national (government) direction, with an aim for a more consistent resource management approach throughout the country.

Potential benefits and challenges

The overall change to the resource management system aims to fix the lengthy and costly process under the RMA, introducing environmental bottom lines and facilitating infrastructure and other development – most importantly housing.

The Natural and Built Environments Act is, in theory, intended to reduce complexity and cost while ensuring protection of the natural environment and enabling development such as infrastructure and housing. The Strategic Planning Act is intended to provide certainty as to where development should and should not occur in each region, benefiting both developers and infrastructure providers and those opposing development.

Based on the exposure draft of the Natural and Built Environments Act, there are many questions to be resolved. For example, there is a fundamental conflict between outcomes focused on protecting the natural environment versus those enabling development. Many of the industry submissions on the exposure draft highlight the need to provide a clear mechanism for resolving this conflict.

Although we have not seen anything in writing on the Strategic Planning Act, it is an opportunity to clarify how districts will look in the future. It will allow housing and infrastructure to be rolled out in a sensible way and should reduce litigation. This concept is not completely new to some councils. Among others, Auckland Council is currently required to spatially plan. The key will be ensuring that the spatial plan has some teeth – or leaves little wiggle room – by requiring implementation through plans. However, there needs to be some flexibility to adjust to changing circumstances, which is a difficult balance to achieve.

The Ministry for the Environment notes one benefit of the changes is an expected reduction of approximately $85 million per year in planning and consenting costs from the current estimated spend of $1.2 billion per year.

Council resources are already stretched, and underfunding is a major issue. The requirement to prepare 14 new plans that are the equivalent of the Auckland Unitary Plan will not only put further pressure on council resources but also the resources of iwi, developers, infrastructure providers, Crown entities and others participating in the plan-making process.

Bills expected in 2022 and 2023

We are still in the very early stages of development. The exposure draft of part of the Natural and Built Environments Bill is currently with the Environment Committee for an inquiry as to whether the proposed Bill will achieve the objectives sought by the government.

The full Natural and Built Environments Act and Strategic Planning Act are expected to be introduced into Parliament early in 2022, while the Climate Change Adaptation Act is expected to be introduced in 2023. There will be a further chance for submissions when the Bills are introduced to Parliament.

Note

For specific advice on any construction legal queries, contact your legal advisor or Dentons Kensington Swan on (09) 379 4196.

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