RMA replacement announced (...again)

The Government has unveiled its plans for Phase 3 of its resource management reforms (read the announcement here). These are based on the recommendations of an Expert Advisory Group which, last year, delivered a blueprint for reform.

The Phase 3 reforms propose a new system which aims to cut red tape, streamline decision-making, and put property rights at the heart of the system. The new system is intended to move away from a “precautionary” approach to a more “permissive” model that enables development while setting clearer environmental limits.

Below, we break down the key features of the proposed new system.

Two new Acts

The RMA is proposed to be replaced by two new Acts:

1. A ‘Natural Environment Act’: centred on the use, protection, and enhancement of the natural environment.

2. A 'Planning Act’: centred on establishing a framework for planning and regulating the use, development, and enjoyment of land.

   
   

Approach to effects management

A key change is that the new system proposes to narrow the effects that can be considered and set a higher bar for when effects must be managed.

Effects that only impact the person undertaking the activity and do not affect others (such as neighbours) or the wider environment will not be subject to regulation. In other words, it is proposed that regulation focuses on external effects. Certain other matters such as financial effects and effects on trade competition will be excluded, and the threshold for who qualifies as an affected party in resource consent processes will be raised. 

Strengthening property rights

The new system proposes that land use will be enabled by default, unless there is a significant impact on third parties or the natural environment. This involves:

• Expanding permitted activities to reduce the number of activities that require consent.

• Requiring regulatory justification reports when councils impose more restrictive rules than national standards; plus, compensation for regulatory takings may occur.

These changes are intended to limit unnecessary regulation and ensure private property rights are better protected.

More unified approach

The new system proposes to streamline and consolidate national policy direction. One national policy statement will be required for each Act, simplifying the current patchwork of national direction documents. The Government proposes that national direction under the Natural Environment Act will cover freshwater, biodiversity, and coastal policy, while direction under the Planning Act will cover urban development, infrastructure, and natural hazards.

National planning standards are proposed to be introduced with the aim to improve efficiency. A major feature of this will be nationally standardised zoning (while allowing some regional flexibility where justified), which the Government considers will reduce complexity in planning rules.

Introduction of environmental limits

The new system proposes to establish a process for setting environmental limits, with those protecting human health to be set nationally, and those protecting the natural environment to be set by regional councils in accordance with nationally prescribed methods. This is intended to provide clarity on where development should occur, while protecting key environmental values.

Consolidation of planning documents

The Government is proposing a complete overhaul of planning documents, involving:

• One combined plan per region, with plan chapters being developed by each local authority, combined for each region, and presented as a national e-plan.

• Each regional council would provide plan chapters under the Natural Environment Act.

• Each territorial authority would provide a plan chapter managing land use for their area under the Planning Act.

  
  

Compliance, enforcement and monitoring overhaul

To improve consistency and reduce regional variability, compliance, enforcement and monitoring is proposed to shift to a national regulator. This is intended to address long-standing issues with variable enforcement under the current RMA system.

A new planning tribunal is also proposed to be introduced as a faster, less costly alternative to the courts for resolving administrative planning disputes.

Treaty considerations: a point of contention

The Expert Advisory Group recommended that both Acts include an equivalent to section 8 of the RMA, which requires decision-makers to take the Treaty of Waitangi principles into account. However, Cabinet disagreed, opting for further review as part of a broader reconsideration of Treaty clauses in legislation.

That said, the Government has confirmed that upholding Treaty settlements and agreements will remain a principle of the reforms.

Comment

Despite Minister Bishop’s criticism of Labour’s Natural and Built Environment Act and Spatial Planning Act as “botched”, it bears a number of similarities with the key features of the proposed new system, with the main difference being a stronger emphasis on property rights and development.

Many of the aims of the proposed new system are positive. Developers and infrastructure operators, in particular, will be pleased with the emphasis on enabling development and cutting red tape, which could lead to greater efficiency and certainty in project approvals. However, as the previous Government found out, the current coalition Government has its work cut out for it in translating the pithy blueprint into two new Acts.

The proposed reform represents the latest attempt to overhaul the political football that the RMA has become. Notwithstanding initial tentative proposals between the coalition Government and Labour to work together on the reforms, in our view, true bi-partisanship on the issue – which could deliver much needed stability and certainty to a system which is critical to the nation’s prosperity – is likely to remain elusive.

With the Government’s plans to have draft legislation ready by the end of the year, we’ll be watching closely to see how the proposals evolve.

If you’d like to stay updated or discuss what these reforms mean for your projects, feel free to get in touch with our team.