Mark Harding, Associate at Cooney Lees Morgan, discusses the possible changes to the Resource Management Act ahead of the election. 

Regardless of who wins the upcoming election, within the next term we are likely to see significant changes in NZ’s environmental and resource management laws, including the replacement of the RMA.  With both major parties now declaring they will replace the RMA if elected, it finally looks like the RMA’s days are really numbered.

This article takes a quick look at what a post-RMA world might look like and its implications for NZ businesses.

RMA Review Panel Report provides insight into a Post-RMA world

While the exact form of an RMA replacement will depend on who wins the election, any reform is likely to be informed by the recent report of  the Resource Management Review Panel (chaired by retired Court of Appeal Judge, Hon Tony Randerson QC).

The Review Panel’s report titled “New Directions for Resource Management in New Zealand” is non-binding on future Governments, but represents the most considered thinking to date and clearest articulation of what a post-RMA world might look like – particularly if Labour were to be re-elected.

Major changes recommended

Some of the major changes the Report recommends are:

• Replacing the RMA with a new Natural and Built Environments Act that focuses on “achieving positive outcomes” rather than “avoiding adverse effects”: The new Natural and Built Environments Act (NBEA) would still retain the same integrated approach for land use planning and environmental protection as the RMA, but with a revised purpose and focus on achieving positive outcomes for both natural and built environments rather than “avoiding adverse effects”. In practical terms we can expect more directive legislation, both in terms of positive outcomes for the built environment, as well as mandatory environmental limits (bottom lines) specified for biophysical aspects of the environment, such as freshwater, coastal water, air, soils and habitats for indigenous species.
• Giving effect to the Treaty, providing for greater participation for Māori in resource management decision making and alignment with Te Ao Māori (Māori world view): Stronger direction requiring decision-makers to “give effect to” the principles of Te Tiriti o Waitangi (current requirement is “to take account”) and to provide Māori with greater ability to be involved in resource management decision making. Greater scope for the Māori world view (Te Ao Māori) to influence planning process and resource management decisions. As an example of this, the intended purpose of the new NBEA recognises and incorporates the concept of “Te Mana o te Taiao” which is defined as the importance of maintaining the health of air, water, soil and ecosystems and the essential relationship between the health of those resources and their capacity to sustain all life.
• Use of long term spatial planning to create “blue print” for Regions under new a Strategic Planning Act: In addition to the NBEA to replace the RMA, a new Strategic Planning Act (SPA) is recommended to provide for long term integration of land use planning with the provision of infrastructure funding and investment. Under the new SPA, long-term regional spatial strategies (encompassing both land and the coastal marine area) would set long-term objectives for urban growth and land use change for regions responding to climate change and identifying areas inappropriate to develop. These strategies would serve as high level “blue prints” for a region and align functions across other legislation.
• Streamlining Local Authority Plans – Creating a single Regional Unitary Plan: Combining regional and district plans and replacing these with a single mandatory plan for each region, consistent with their long-term spatial strategies. This would reduce the number of plans from 100 down to 14.
• Greater focus on Climate Change and Natural Hazards: The New NBEA would also be used to reduce greenhouse gas emissions, not just manage natural hazards that result from climate change. In addition, a dedicated Managed Retreat and Climate Change Adaptation Act is recommended to provide for managed retreat and establishment of a climate change adaptation fund. This would be supplemented by mandatory national direction on climate change mitigation, adaptation, and reduction of risk from natural hazards. These matters would also be addressed at a strategic level through regional spatial strategies.

• Increased focus on national direction: Greater use of mandatory national direction from central Government on a range of core matters to set objectives, policies, standards and methods as well as environmental bottom lines and targets to ensure continued improvement, in respect of matters of national significance.
• Allocation of resources: A move away from the ‘first in, first served’ principle, allowing allocation principles of sustainability, efficiency and equity to be included in the NBEA, with a more balanced approach to prioritisation of existing users.

How will this affect business?

One of the “sea change” shifts in planning and the environment is the movement towards the central government having a far stronger hand in directing and specifying the type of outcomes it wishes to see, rather than being content to rely on market led forces to determine the outcome and focusing on managing and avoiding adverse effects.  We see a strong trend towards this in the Report, and we would expect at least some of this to be carried into the new RM legislation.

How a new RM regime will affect business is likely to depend on whether that business is provided for under the new RM replacement law, and subsequent national direction and Regional spatial strategies.  For example, core infrastructure, low carbon, renewable energy, green technologies and urban development that fits into areas and forms which are foreseen and directed by Regional spatial strategies are likely to benefit with easier and more streamlined consenting processes.

In contrast some industries not provided for may find a new regime more difficult than the RMA. In addition, development outside of areas which are not provided for in Regional spatial strategies or in areas where there may be a greater climate or hazard risk may find it more difficult to obtain consent, and/or be subject to more onerous conditions.

Finally, while consenting may become faster and more streamlined under a new RM regime, it is likely that there will be less allowance for adverse effects on the environment, and that ongoing monitoring and reporting for biophysical effects will become greater and compliance stricter.  This is in line with an international sustainability movement and a requirement for greater reporting and transparency.  Processes may improve, but compliance and reporting requirements are most likely to increase over time.

Unknowns

One of the biggest unknowns is how a new legislative framework will achieve the balance of providing for greater environmental protection, faster consents for developments and facilitating greater and better urban growth and much needed infrastructure – no easy task.

The balance set will ultimately depend on which party (or coalition parties) drafts the RMA’s successor, and how that framework is then implemented and resourced.