The Government’s proposed comprehensive overhaul of the resource management system attracted significant media attention when it was launched late last month. This article briefly summarises what we know about the review (and what we don’t know), and where things are headed.
Background
The RMA is the key statute for managing New Zealand’s built and natural environments. While ground-breaking at the time of its enactment in 1991, the Government is concerned that the RMA is underperforming in several key areas, for example freshwater, biodiversity, infrastructure, climate change, and urban development. It is therefore proposing a two-stage reform process so that the RMA supports a “more productive, sustainable and inclusive economy” and is easier to understand and engage with.
Stage one: focussed amendments to the RMA
Several specific and relatively straightforward changes are proposed to be implemented through an initial amendment bill, in advance of more comprehensive changes. The proposed reforms focus on: (a) reducing complexity and increasing certainty; and (b) improving consent processes, freshwater management, enforcement and Environment Court operations (including by reversing certain aspects of the previous government’s 2017 RMA amendments). The bill is currently being drafted and is intended to be introduced to Parliament this year, following which there will be an opportunity for public submissions.
Stage two: comprehensive overhaul of the RMA
Stage two of the proposed reforms (which is the focus of this article) will be a comprehensive review of the resource management system, focussing on the RMA. It will likely include fundamental changes. The Government has stated that this stage is intended to be a “thorough overhaul’, not an “ad hoc patch-up” or “workaround” through further discreet changes to the RMA. The aim of the review is to improve environmental outcomes and enable better and timely urban development within environmental limits.
Process for review
A Resource Management Review Panel chaired by retired Court of Appeal Judge Tony Randerson QC will lead the review process. The Panel is required to produce an “issues and options” paper by the end of October 2019. The Panel will have a wide remit to consider the issues and will then produce a report by mid-2020 making detailed policy recommendations.
Key issues for review
Key issues for the Panel, as described by the Government, are outlined in the below table:
|
Aspect of the RMA |
Key
issue |
Objectives and alignment |
Removing unnecessary complexity from the RMA, including by rationalising the multiple decision-making pathways that have been created since the RMA was enacted |
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Strengthening environmental bottom lines |
|
|
Clarifying Part 2 (which sets out the purpose and principles of the RMA), including whether it should be separated from the RMA |
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Potentially separating provisions for land use planning and environmental protection |
|
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Recognising objectives for development (including housing and urban development and infrastructure networks and projects) |
|
|
Introduction of an explicit function to restore or enhance the natural environment (where bottom lines may already be breached) |
|
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Strengthening spatial planning: considering how a new role for spatial planning can be enabled in order to promote a planning system that is more strategic, future-focussed, and responsive to change |
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Ensuring there is sufficient resilience to manage risks from climate change/natural hazards |
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Ensuring the RMA aligns with the Climate Change Response (Zero Carbon) Amendment Act, once passed |
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Ensuring that Māori have an appropriate role in the resource management system |
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|
Functions and processes |
Improving RMA functions and processes, including through:
|
|
Institutions |
Considering and allocating institutional roles and responsibilities, including for central government, local government, the Environment Court and other RMA institutions |
|
Supporting the reform transition process and addressing planning system culture, capacity, and capability |
Engagement
A phased approach to engagement is proposed. While initial engagement will be with targeted groups, including Māori, the government has stated that it plans to undertake public consultation once the Panel has developed concrete proposals.
Comments
Below we have distilled several observations from our review of the documents released to date:
The job the Panel has been tasked with is immense, highly complex, and of major importance to the country. The timeframes are tight.
It is a distinct possibility that the reforms will not be enacted before the next election, and that they will be key election issues. National has stated that it is already drafting its own RMA reform bill. The Panel’s role and the potential dynamics around its recommendations may be reminiscent of the recent Tax Working Group process.
While justifiably touted as a wholesale overhaul, the proposed review in fact represents a halfway house between further piecemeal reforms and a broader review of the entire resource management system (as opposed to focusing on the RMA itself). Having said that, given that a complete re-write of the RMA is one potential outcome, the impacts of the review may be very significant.
Notwithstanding the broad scope of the proposed review and the fact that several of the proposals being considered represent major shake-ups of the status quo; many of the key proposals are at very early stages, being expressed in a few sentences or paragraphs only in the documents released by the Government to date. It is therefore not possible to fully understand the precise nature of, and rationale behind, some of the proposed changes. And coupled with the fact that almost everything is “up for grabs” and at the discretion of the Panel, it is impossible to get a clear picture of what the final reforms may end up looking like (if they are in fact passed into law). Because of the panel review process adopted, in a nutshell the recent announcements demonstrate a desire to entirely revamp the resource management system, namely the RMA, but without concrete details of what is actually likely to fall out of the process.
Including because of the above, the recent announcements are in effect a proposal about a proposal and have attracted criticism from some quarters as being just another government working group.
There is widespread agreement that the RMA is underperforming in certain respects, and that some form of review and reform is needed. The government has pointed out that the RMA is long and complicated. (It is over 800 pages, almost double its original length, and has been amended 22 times since 1991.) However, in our experience many of the commonly cited issues concerning complexity, red tape, and poor environmental outcomes often have a lot to do with the instruments/plans made under the RMA, and other factors such as funding constraints, as opposed to problems with the RMA itself. For all its faults, the RMA does have positive qualities too.
No matter what the applicable legalisation is at any given time, resource management will always require someone to make hard and important decisions on contentious issues – it is not possible to legislate down to the micro-level, prescribing outcomes on an application by application basis. Whatever legislative product comes out of the review process, it is unlikely that it, or the decisions made under it, will please everyone all the time. The Government’s stated aim of producing a “revamped law fit for purpose in the 21st century that will cut complexity and cost while better protecting our environment”, will be no mean feat.
The Panel is expected to tie in its recommendations with a raft of existing workstreams, including around freshwater, climate change, urban development, biodiversity, heritage, infrastructure, and whenua Māori. Transitional provisions will likely be key. If not carefully managed, there is potential for major uncertainty and/or disruption around the reform’s interaction with current RMA instruments (including processes relating to regional and district plans) and initiatives.
While the Government has stated that it will “take care not to unnecessarily discard…legal precedents”, the proposals for Part 2 come at an interesting time, given that the Court of Appeal has only recently provided a definitive statement of Part 2’s role in decisions on resource consents.
Conclusion
Further information on the proposed changes is available here, including links to the supporting documents.
Feel free to contact us if you would like to discuss the reform proposal, including how it may affect you or your business.