Earlier this month, we released an update on the Government's Essential Freshwater reform proposals. Our update highlighted that part of the reform package would be a Resource Management Amendment Bill to introduce a new freshwater planning process into the RMA.
The Amendment Bill was introduced to the House on 23 September and passed its first reading on 26 September. The Bill can be read here. In addition to a proposed new, separate process for freshwater planning, the Bill also proposes to roll back a number of the changes to the RMA made by the previous government in 2017, primarily to (once again) increase opportunities for public participation in resource consent processes.
The Bill is now in the early stages of review by the Select Committee and a discussion document on the proposed amendments is expected to be released for public feedback shortly.
Freshwater planning process
The Bill proposes to repeal the collaborative planning process enacted in the last round of RMA reforms and replace it with a new extensive freshwater planning process. This process is proposed to be mandatory for all regional councils in developing their proposed regional policy statements or plans (and plan changes) relating to freshwater, collectively referred to as "freshwater planning instruments".
A Chief Freshwater Commissioner is to be appointed, who will be responsible for the convening of freshwater hearings panels to hear public submissions on freshwater planning instruments. These panels will have enhanced hearing powers and freshwater hearing commissioners nominated by the relevant regional council and local tangata whenua.
The new freshwater planning process is intended to provide the framework through which regional councils will be required to implement the new National Policy Statement for Freshwater Management (Freshwater NPS). Regional councils will be required to receive and consider recommendations on freshwater planning instruments from the hearings panels. In contrast to other planning processes, regional councils may accept recommendations from a freshwater hearings panel that are beyond the scope of submissions. Where a recommendation is rejected, the council must decide an alternative solution. The Bill provides for limited rights of appeal from council decisions.
Public participation
The Bill also includes several proposed amendments to increase opportunities for public participation in the resource consent process, repealing a number of the changes introduced by the previous government in the Resource Legislation Amendment Act 2017 (RLAA).
Among other things, the proposed reforms enhance the ability for the public to submit on certain types of resource consent applications (including on subdivisions and residential activity) and reduce restrictions on the ability for submitters to appeal against resource consent decisions.
Other reforms
As flagged in previous announcements on RMA reform, another of the Government's key concerns is improving how the RMA is enforced. To this end, the Bill proposes to increase the maximum infringement fees for offences under the RMA and to empower the Environmental Protection Authority (EPA) to undertake investigation and enforcement actions under the RMA, even where no local authority is involved. These additional enforcement powers are intended to enhance accountability and provide support for local authorities in carrying out their enforcement responsibilities.
The Bill also proposes to reinstate the use of financial contributions as conditions of consent, which were being phased out under the provisions of the RLAA. Consent authorities would now be able to continue to charge financial contributions after April 2022 (which is the current end date for their use under the RMA). The Minister of Education or the Minister of Defence would be exempted from the imposition of financial contribution conditions on their notices of requirement.
Comment
The proposed freshwater planning process and related reforms are in line with our expectations for the Bill, having been previously signalled by the Government as part of its announcement on the Freshwater NPS. While clearly intended to expedite decision-making on freshwater planning instruments, the proposed limitations on rights of appeal against regional council decisions on hearing panel recommendations do seem to run counter to other parts of the Bill that seek to reinstate rights of appeal and public participation more broadly.
It will also be interesting to see how the proposed enhancements to public participation and appeal rights will fit in to the Government's Urban Growth agenda. The proposed National Policy Statement on Urban Development, which will amend the existing NPS on Urban Development Capacity, is focused squarely on enabling urban growth, including by removing "unnecessary constraints" on development.
Outside the RMA context, the second Kāinga Ora bill, which will be introduced later this year, is also expected to restrict public participation and appeal rights in planning and consenting processes to enable swift urban development. The Government has yet to clarify how these competing tensions and priorities will marry with one another.
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