New Zealand’s resource management reform: a clearer, more effective framework

The report of the Expert Advisory Group (EAG), detailing a blueprint to replace the RMA, was released today. The task set for the EAG was to develop a framework for two pieces of legislation that would better enable development and improve the management of the natural environment.

The outcome is a refreshing new take on some of the elements of the current system along with innovative new ideas, that seek to refocus resource management on what really matters.

While much of the detail is still to come, there will be benefits in the new system for everyone, including the following:

• the burden on councils of creating planning documents is significantly reduced;
• the pathway for infrastructure providers to deliver high-quality infrastructure for the future is shorter;
• developers will have greater certainty around how development consents can be obtained.
• private landowners will have more freedom to use their property.
• Mechanisms to resolve disputes quickly will be established; and
• protections will be in place for the natural environment along with greater monitoring and compliance functions.

It remains to be seen what the Government will do in response to the EAG’s report and there are some areas where more work will be required before the new system can be established. In the meantime, we highlight some of the key components below and congratulate the EAG on an exciting new approach to resource management in New Zealand.

The new resource management framework

For a long time, the RMA has been applied in a way that regulates the effects (trivial or otherwise) of almost every activity. It has developed over time into a regulatory system filled with competing objectives and policies at all different levels. As the Report recognises, the RMA has lost sight of the benefits associated with development and the need for change. In order to enable growth, delivery of infrastructure and sensible protection of the things that are really important to all New Zealanders, there is a recognised need for the system to be simplified and refocused so that financial resources, expertise and community engagement are applied at the right time in the right processes.

The proposed new system, comprising two separate acts, paves the way for a simplified resource management system to achieve all the above with a more positive focus. Under the new system there will be:

• a Planning Act with the purpose of establishing “a framework for planning and regulating the use, development and enjoyment of land”; and
• a Natural Environment Act “to establish a framework for the use, protection and enhancement of the natural environment”.

Each Act will have a set of national goals setting out the main objectives of the regulatory framework. The new legislation will ensure that the scope of what is regulated is narrowed, planning is standardised where possible and duplication is removed.

At a national level, there will be a mandatory national policy direction (NPD) under each Act and national standards to implement the NPD and provide a consistent approach to the regulation of activities. This will include nationally standardised zones. Environmental limits will also be set at a national level where their function is to protect human health, with national direction provided to regional councils on how to set limits for the natural environment.

Spatial plans will have an important role in the new system at a regional level. Spatial planning will identify the spatial implications of environmental constraints such as hazards, significant natural areas (SNAs), outstanding natural features and landscapes (ONFLs) and highly productive land, and support a permissive approach to development in areas where those constraints can be avoided or appropriately managed. They will integrate and align regulatory planning with infrastructure planning and investment.

Combined regulatory plans will be prepared for each region to regulate land use in a way that is consistent with the national direction and spatial plans. Once the national direction is in place, councils will select the building blocks for their combined district plans with further scope to specifically address local issues.

Shifting the focus: from managing all effects to prioritising impact

The new system will move away from the current approach of assessing and managing any positive or adverse effect of an activity. It will focus on the economic concept of “externalities” – ie, a cost or benefit resulting from one party’s activities that falls on an uninvolved third party. Effects that are only experienced by the person undertaking the activity will not be controlled and the threshold for materiality of effects will be raised.

What will this mean in practice?

Among other things:

• the starting presumption is that land use will be enabled;
• “less than minor” effects will not be regulated (except where necessary to manage significant cumulative effects);
• subjective matters in relation to the quality of the built environment will be excluded from effects assessments;
• clear protection for existing uses and their ability to expand will be included to protect ongoing operations from reverse sensitivity effects; and
• landscape and visual amenity effects will not be regulated beyond protecting ONLs and ONFs.

A faster, more predictable consent process

The Report recognises that consenting under the RMA is complex, slow and costly. Consent authorities are tasked with reconciling a myriad of national, regional and local planning documents with competing objectives and policies. Regulation under the RMA is not consistent with the need for growth in certain areas and the presumption in favour of public participation results in a risk averse application of the rules in many cases.

How will the consent process change?

To address these challenges, the new system will, among other things:

• remove controlled activity and non-complying activity consent categories;
• ensure that only those who are materially affected by an activity have the opportunity to participate in the consenting process;
• raise the bar for notification generally to require notification when effects on the environment or persons are more than minor;
• under the Planning Act, limit notification to the district in which an activity is located;
• address challenges to notification decisions in the Planning Tribunal (rather than through judicial review);
• require decision makers to have regard to the positive effects and benefits of an activity;
• remove the ability to consider less than minor effects;
• limit assessment of effects to matters within the scope of the relevant Act; and
• ensure effects that comply with a standard or rule are not considered.

It appears that the EAG has taken all the aspects of good consenting practice and placed them into a planning and regulatory framework that provides greater certainty and clarity from the outset. If you buy into the concept that private property rights are paramount – as the current coalition government promotes – then you can see that this consenting process will deliver faster and better outcomes for those seeking consent.

A new planning tribunal: faster, low-cost, dispute resolution

The EAG recommends that a planning tribunal be established, that will  offer an efficient and cost-effective mechanism for resolving disputes. Its focus will be on quick, low-cost conciliation and administrative review of council functions. It will also assist in determining the meaning of consent conditions, ensuring that disagreements are resolved fairly and promptly. The tribunal will improve the overall efficiency of the resource management system by providing an accessible alternative to more formal and costly legal proceedings.

The EAG recommends that the functions of the Tribunal should include:

• objections to council requests for further information and commissioning of reports;
• objections in relation to other matters listed in section 357 of the RMA;
• objections in relation to costs sought by councils;
• determining whether a submission is within the scope of a consent or plan;
• interpretation of consent conditions (the applicant, council or anyone else could seek this);
• the striking out of consent conditions where they are challenged as being unlawful or ‘ultra vires’; and
• challenges of notification decisions.
• The tribunal will operate in a manner similar to other tribunals such as the Disputes Tribunal and will regulate its own procedures. It will be resourced with adjudicators experienced in the planning system and will have the ability to make decisions in its own right (such as quashing a notification decision) as well as referring matters back to councils. It will also be given the ability to substitute its own decision in certain circumstances.
• Of note, and in keeping with the desire for this to be a low cost and swift tool for resolution of matters, legal or other professional representation will not be permitted.

What’s next? The future of resource management in New Zealand

Overall, it appears that the new resource management framework promoted in the EAG’s blueprint will be simpler, more cohesive and more effective than the current system. The reforms aim to eliminate repetition in planning documents, reduce inconsistencies and provide clearer guidance on how competing objectives can be resolved. This new approach will ensure that all parties involved in the resource management system have the certainty they need to plan and execute their projects with confidence.

The blueprint for reform represents a major shift in how New Zealand manages its natural resources, offering a more balanced approach between development and environmental sustainability. It will address the challenges of a growing population, climate change and evolving societal needs, while maintaining the core values of protecting the country’s unique environment.

By creating a more simple and predictable system, New Zealand’s resource management framework will better serve both the people and the environment, ensuring a more sustainable future for generations to come.

This article only skims the surface of the Campbell Report. More details to come as we digest the content.