Building on the Government's September announcement of the key components of its intended RMA replacement regime (see our previous insight here), last week we received further detail of the Government's proposals with the release of the cabinet paper "Replacing the Resource Management Act 1991".
The replacement system will be based on property rights and managing environmental effects. The intention is to make the replacement system faster, cheaper, and less litigious and for this process to sit in shorter, less complex and more accessible legislation. The cabinet paper outlines suggested proposals which are intended to be tested and refined by the Expert Advisory Group recently appointed by the Minister. In order to meet the Government's timeline for the legislation to be introduced this parliamentary term, policy directions will be required by early 2025.
The Government has signalled that replacement legislation is introduced by mid-2025, and passed by mid-2026. We expect the drafting will need to lean heavily on the repealed Natural and Built Environments and Spatial Planning Acts in order to realistically be enacted this parliamentary term.
At this stage, the Government is proposing that public input will be provided through the Select Committee process rather than consultation on the Expert Advisory Group recommendations or an exposure draft of the legislation.
Once enacted, the Minister intends a rapid transition to the new system compared to the Natural and Built Environments Act, which required a ten year transition.
Key aspects of replacement resource management system
Key aspects of the replacement resource management system include:
- Establishing two new Acts – as was announced in September, the Government proposes separate legislation to manage environmental effects arising from activities, and to enable urban development and infrastructure. This creates a "double-bottom line" where access to housing and other essentials are required to be provided by Councils within environmental limits.
- Narrowing the scope of the resource management system and the effects it controls. Matters such as heritage controls, design standards and greenhouse gas emissions and infrastructure constraints will be addressed through policy interventions or left to the market (for example the Minister does not consider the resource management system should require balconies and private open space nor apply blanket "special character" protection). There also seems to be an intent to decouple infrastructure and planning with the Minister considering that new development connecting to infrastructure can be addressed through other tools such as infrastructure funding and financing, which sit outside the resource management system.
- Strengthening and clarifying the role of environmental limits. Regional Councils will continue to set limits in plans for each environmental domain and control discharges and manage activities so that these limits can be met. Place-based tools are intended to protect significant natural areas and natural features, but with adequate consideration for how any affected property rights will be upheld. The intent is the limits and tools will be subject to legislated principles and be based on quantitative data. The Minister is seeking a system that enables innovative methods for water and nutrient allocations to manage over-cap catchments back within environmental limits (including recognition of environmental offsets).
- Providing for the greater use of national standards to reduce the need for resource consents. National standards will codify the effects management approach for activities associated with infrastructure, for example electricity transmission and distribution, water pipes and treatment, road construction and maintenance, ports, airports, etc, and land use and development (traffic management, earthworks, sediment control, dust, noise and vibration). The Minister intends that the new Planning Tribunal would provide an accountability mechanism by striking out Council demands for resource consents for standard complying activities.
- Other potential proposals for fewer and faster consents would see public participation in applications limited to those directly affected (although major projects will be publicly notified). There is a proposal that objectors would bear some of the costs in an attempt to disincentivise a single objector holding up a development for years.
- Local zoning flexibility which the Minister is proposing could involve proposals to enable neighbours to increase development potential through upzoning based on supermajorities, as well as an option to opt out of upzoning while remaining liable for infrastructure services.
- Shifting the system to focus on compliance monitoring and enforcement, rather than the requirement for consents prior to an activity being established. There will be more permitted activities in plans subject to standards being met. This will require a focus on monitoring and enforcement, and heavier penalties will be established to deter non-compliance. The Minister intends that these expanded functions will be funded by new mechanisms to collect revenue.
- Using spatial planning and a simplified designation process for future infrastructure. Long-term planning on a 30-50 year time scale will be required to plan for future urban development and infrastructure projects. This planning will involve constraints mapping and protecting infrastructure corridors at an earlier stage.
- Requiring one regulatory plan per region prepared jointly by regional and district councils. Regional and district councils should continue to plan, apply standards and set rules in the context of more standardisation at the national level. The Government is considering introducing national planning standards which could be used to standardise zones for plans. Further, the Government intends to reduce the appeal rights in relation to plan making and plan change processes.
- Upholding Treaty of Waitangi settlements and the Crown's obligations. Treaty settlements and existing resource management settlement mechanisms will be transferred into the new system.
- Providing for rapid, low-cost resolution of disputes between neighbours, and between property owners and councils. Further work is required to explore how to best achieve this, but it is suggested that a Planning Tribunal (similar to the Disputes Tribunal) could be established. This would reduce the need for the Environment Court to hear certain matters.
While there is significant cross-over with the repealed Natural and Built Environments and Spatial Planning Acts, particularly with regard to the reduction in planning instruments, national standards for infrastructure, and embedding spatial and long-term planning, there are also significant areas of divergence.
This Government's starting point is the enjoyment of property rights and respect for the rule of law. The tension between this underlying approach and the need to address New Zealand's degraded environments will be one that the Government will need to navigate in the drafting and implementation of the new regime. There is a lot relying on a compliance, monitoring and enforcement regime which currently is under resourced.
Another key area to watch is the intended narrowing in scope of the system, in particular the interface with the provision of infrastructure. While infrastructure funding and financing is currently subject to separate legislation, this approach does appear to depart from the long term goal of the planning system to deliver greater integration of infrastructure and land use planning.
Phase 1 of the RMA Reform enacted
Also last Friday, Phase 1 of the Government's RMA Reform, Resource Management (Freshwater and Other Matters) Amendment Act 2024 came into effect. This Act streamlines the process for preparing and amending national direction and made targeted amendments in relation to requirements of the National Policy Statement for Freshwater Management, National Environmental Standards for Freshwater and National Policy Statement for Indigenous Biodiversity.