On 27 June 2023, the Environment Committee presented its reports on the Natural and Built Environment Bill (NBE Bill) and Spatial Planning Bill to Parliament. The Bills will repeal and reform New Zealand’s environmental law, currently enshrined in the Resource Management Act 1991.

The Environment Committee received written submissions from 2,945 organisations and individuals and heard from 365 submitters at hearings across the country.  The level of public engagement (and complexity of the Bills) is reflected in the Environment Committee’s reports – together they run to 1,377 pages, with the report on the NBE Bill alone reaching 1,279 pages.

To help with your watercooler chat, below are our five key takeaways from the Committee’s report on the NBE Bill.

1. It’s going to be passed (probably)

The Minister for the Environment, Hon David Parker, has been adamant that the Bills will be enacted during the term of the 53rd New Zealand Government.  The majority of the Environment Committee seems to support that view and has recommended that the NBE Bill be passed into law (with amendments, also recommended by the majority).

Three differing views are provided from each of the National, Act and Green Parties.  There are common threads in the views of these strange bedfellows, including concerns about certainty and clarity of drafting and whether the reform will be effective.

With a two-seat majority, the 6th Labour Government has the votes to pass the NBE Bill, in the 20sitting days left before the dissolution of Parliament.

2. The purpose is being revised – te Oranga o te Taiao

The NBE Bill was first published with two limbs to its overriding purpose: to enable use, development and protection of the environment, and to recognise and uphold te Oranga o te Taiao. 

In its report, the Environment Committee agreed with submitters that a single purpose with two limbs could be interpreted as a dual purpose, creating difficulties with its application.  To ensure the purpose clause is certain, clear and coherent, the Committee has recommended a single purpose: to uphold te Oranga o te Taiao.  

That single purpose is then qualified by a requirement that the purpose must be achieved in a way that both protects the health of the natural environment and (subject to such protection) enables the use and development of the environment.

While the Committee’s recommended changes are clearer than the previous “dual purpose,” they have substantially changed the focus of the Act.  The previous two-limbed purpose equally recognised the use, development protection of the environment and te Oranga o te Taiao.  The Committee’s amendments now clearly makes the “use and development of the environment” subservient to protecting the health of the environment.  This change reflects a core theme throughout the Committee’s recommendations of putting the health of the environment first.

3. Changes to the National Planning Framework (NPF)

As originally released, the NPF was a core element of the reformed system – its success or failure will hinge on the national direction provided in the NPF.  That hasn’t changed.  However, the Environment Committee has recommended a range of changes to the detail of how the NPF is prepared and what is must cover.

Of particular interest - given its immediacy - the Committee has recommended changes to clarify that the first NPF must carry over the policy of the RMA national direction and provide direction for the development of regional spatial strategies.  The first NPF is expected to be notified in August 2023 and is the first step in the transition to the reformed system.

While all signals from Government were that the first NPF would be an amalgamation of existing RMA national direction, it is helpful to have that clarified.  However, it does raise broader questions about how effective the transition to the new system will be, given the first NPF will be grounded in the policy of RMA national direction.

4. Transition to the new system

The Environment Committee has acknowledged submissions about the uncertainty with the transition to the new system and its timeframe.  Given the number of inter-dependencies in implementing the new system, the transition process is expected to take 10 years (if not longer).

The Committee has made a range of recommendations about the timing of the transition and clarification about how the transition will work; for example, for resource consent applications made under the RMA but still being processed when the NBE Bill “switches on” in a region.

Of particular interest, the Committee has recommended that the NBE Bill’s fast-track consenting provisions take effect on Royal Assent, which will fill the gap soon to be created by the repeal of the COVID-19 Recovery (Fast-track Consenting) Act 2020.  Applications under the new fast-track consenting process will be processed under RMA planning instruments during the transition period.

5. The Bill needed restructuring

If the substantive changes to the Bill were not enough, the Environment Committee has proposed significant changes to the structure of the Bill to improve its flow and readability.  We have not yet assessed the efficacy of the restructure; however, we are hopeful that it will improve useability of the Bill (bearing in mind it currently spans more than 900 sections and 16 schedules).

Concluding thoughts

It will take some time to read and digest all of the recommendations on the NBE Bill, with changes proposed to most parts of the Bill ranging from allocation methods, to resource consenting to contaminated land.  However, the Environment Committee’s recommendations have a clear theme – uncertainty in the Bill should be resolved in favour of the protection of environmental values.

How this plays out as the NBE Bill finishes the legislative process remains to be seen – though by all accounts practitioners will not need to wait long to see the final Act.