New Zealand’s planning and environmental laws have for a long time struggled with finding the balance between protecting our natural environment and level of urban amenity, while also providing sensible mechanisms to promote development and economic growth. To tackle this the Government has introduced the Natural and Built Environment Bill (NBE Bill) and the Spatial Planning Bill (SP Bill) to Parliament as proposed replacements for the Resource Management Act 1991 (RMA).
Introduction
These proposed reforms have significant implications. While they apply largely the same processes as the RMA, the Bills have a different philosophy and seek to apply different values, most notably a more centralised and “top down” approach to planning and land use. If enacted as drafted the Bills will require many organisations to relearn what they know about environmental and planning law.
Below is a guide to some aspects of the Bills. Please note that submissions to the Environment Select Committee close 30 January 2023.
A new mindset
No to sustainable management
When enacted in 1991 the RMA introduced what was then considered the world leading concept of sustainable management into New Zealand’s environmental law. The purpose of the RMA was to promote the sustainable management of natural and physical resources, and it established structures and processes designed to promote that purpose.
Yes to a range of new purposes
The NBE Bill has dual purposes. The first purpose of the NBE Bill is to enable the use, development, and protection of the environment in a way that:
- supports the well-being of present generations without compromising the well-being of future generations; and
- promotes outcomes for the benefit of the environment; and
- complies with environmental limits and their associated targets; and
- manages adverse effects; and
The second purpose is to recognise and uphold te Oranga o te Taiao.
The introduction of the concepts of protection of and benefits to the environment suggests an expectation that use and development and natural resources contribute positively to the environment. This signals a move away from the more focussing only on whether adverse effects can be avoided, remedied or mitigated.
Te Oranga o te Taiao
Te Oranga o te Taiao is defined to include the health of the natural environment, the essential relationship between the health of the natural environment and its capacity to sustain life, the interconnectedness of all parts of the environment, and the intrinsic relationship between iwi and hapū and the environment.
New roles and funding mechanisms for Māori engagement
The NBE Bill requires all persons exercising powers and performing functions and duties under it to give effect to the principles of Te Tiriti o Waitangi (which are undefined).
The Bill also establishes a National Māori Entity to provide independent monitoring of decisions.
Consent authorities have new powers to recover costs on behalf of relevant Māori parties for engagement in consenting processes.
System outcomes
The proposed regime introduces a “system outcomes” approach requiring:
- The protection or, if degraded, restoration, of the ecological integrity, mana, and mauri of air, water, and soils, the coastal environment, wetlands, estuaries, and lakes and rivers and their margins, and indigenous biodiversity.
- Reduction of greenhouse gas emissions, removal of greenhouse gases from the atmosphere, and reduction of risks arising from, and better resilience of the environment to, natural hazards and the effects of climate change.
- Well-functioning urban and rural areas that are responsive to the diverse and changing needs of people and communities in a way that promotes the use and development of land for a variety of activities, including for housing, business use, and primary production, and the ample supply of land for development, to avoid inflated urban land prices, housing choice and affordability.
- The availability of highly productive land for land-based primary production.
- The recognition of, and making provision for, the relationship of iwi and hapū and the exercise of their kawa, tikanga (including kaitiakitanga), and mātauranga in relation to their ancestral lands, water, sites, wāhi tapu, wāhi tūpuna, and other taonga.
- The protection of protected customary rights and recognition of any relevant statutory acknowledgement.
- The conservation of cultural heritage.
- Enhanced public access to and along the coastal marine area, lakes, and rivers.
- The ongoing and timely provision of infrastructure services to support the well-being of people and communities.
Decision making principles
The NBE Bill provides that decision makers must provide for the integrated management of the environment and actively promote the above systems outcomes.
Decision makers must recognise the positive effects of using and developing the environment to achieve the outcomes. They also must manage the effects of using and developing the environment in a way that achieves, and does not undermine, the outcomes. They also must manage the cumulative adverse effects of using and developing the environment. They must also adopt a precautionary approach when the information available is uncertain or inadequate.
Further, all persons exercising powers and performing functions and duties under the NBE Bill must recognise and provide for the responsibility and mana of each iwi and hapū to protect and sustain the health and well-being of te taiao in accordance with the kawa, tikanga (including kaitiakitanga), and mātauranga in their area of interest.
Strategic planning
Spatial planning
The SP Bill aims to facilitate long-term, strategic spatial planning through the development of regional spatial strategies (RSS). Each RSS is required to set the strategic direction for the use, development, protection, restoration enhancement of the environment for at least a 30 year period.
RSS will be prepared by regional planning committees (RPC), comprising of local government, Māori and central government members. The NBE Bill provides that local authorities and the iwi and hapū committee in each region are to agree on the composition of each RPC. Where there is disagreement the Local Government Commission will decide who gets to sit on the RPC.
National Planning Framework
The existing system of national policy statements and standards is to be replaced by a national planning framework (NPF). The NPF is intended to provide an integrated approach to the management of the environment in relation to matters of significance or to ensure consistency.
The Minister for the Environment must set limits in the NPF for air, indigenous biodiversity, coastal water, estuaries, freshwater and soil, and may also set limits on other aspects of the natural environment. The purpose of limits is to prevent the ecological integrity of the natural environment from further degradation, and to protect human health.
The Minister also has discretionary powers to set targets for achieving environmental outcomes. Targets must be measurable, have a specified time limit for their achievement, and be designed to assist in achieving an outcome.
National Built Environment Plans
All existing Regional Policy Statements, Regional Plans, and District Plans are to be replaced by 15 National Built Environment Plans (NBE Plans). It is estimated that this process will take seven to ten years to complete meaning that organisations that operate nationally will find themselves operating under the two systems for quite some time.
The RPCs will be responsible for preparing and determining the content of the plans. Local authorities can submit on the NBE plans applying to their region or district. Local authorities will be required to administer and implement NBE plans.
Resource consents, designations, and notifications
Changes to resource consents
The NBE proposes three alternative pathways for planning and consenting. Proposals of National Significance and Direct Referral to the Environment Court will continue to be provided for and the fast-track process introduced to stimulate the economy during Covid will continue for specified housing and infrastructure projects.
Although the overall approach to consenting is retained there are some significant changes proposed:
- Consent categories are reduced from six to four – permitted, controlled, discretionary and prohibited (i.e. with non-complying and restricted discretionary activities removed).
- The permitted activities have been broadened. Some permitted activities may require a “Permitted Activity Notice” to cover the costs compliance, monitoring and enforcement.
- Controlled activities cover activities where the effects are well understood and there will be a limited ability to decline (currently these cannot be declined only have conditions imposed).
- There are greater powers for consent authorities to review consent conditions and cancel consents, especially to ensure compliance with limits or targets.
- The NBE Bill allows central Government or regional planning committees to make rules establishing allocation methods for resources, to address inefficient and inequitable allocation (this is a change from the current first, in first served approach to the allocation of scare resources).
- Issues that have been of particular importance to local communities under the RMA regime, such as scenic views and social housing have been explicitly excluded as a valid matter for consideration.
Notification
New notification rules are more tightly based around activity status. Controlled activities must be non-notified and discretionary activities must be publicly notified unless there is a contrary rule in the NPF or a NBE Plan.
New rules also apply to the tests for public and limited notification. The test of whether an effect is “minor” will no longer apply. Instead, public notification will be required where:
- there is sufficient uncertainty as to whether an activity could meet or contribute to outcomes, or the activity would breach a limit;
- there are clear risks or impacts that cannot be mitigated by the proposal;
- there are relevant concerns from the community; or
- the scale or significance (or both) of the proposed activity warrants it.
Limited notification will be required where:
- it is appropriate to notify any person who may represent public interest;
- there is an affected person in relation to the activity; or
- the scale or significance (or both) of the proposed activity warrants it.
Challenges to notification decisions will be considered by the Environment Court, rather than judicial review to the High Court.
Changes to designations for infrastructure
The designation provisions in the NBE Bill differentiate between route protection requirements and a design and build scenario. Assessments of alternatives will no longer be required if the infrastructure has been included in an RSS.
Enforcement and compliance
The NBE Bill includes fundamental changes to the environmental enforcement and compliance regime and signals a far more aggressive approach than under the RMA:
- District councils, regional councils and the Environmental Protection Authority have greater powers to require remediation of contaminated land and recover actual and reasonable costs from the polluter.
- Maximum fines for non-compliance are set to increase significantly from $300,000 to $1,000,000 for individuals and from $600,000 to $10,000,000 for companies.
- A new “polluter pays principle” requires landowners to actively manage land used for high-risk activities – which includes reporting on and actively managing contamination.
- The NBE Bill would prohibit individuals and companies insuring against such fines. This would have significant implications for insurers and insureds alike (as well as for local authorities who rely on typically being paid 90% of fines under the RMA to cover enforcement and clean-up costs).
Summary
There is a lot to digest in the proposed legislation. The RMA took an approach that favoured local participation in planning on the basis that the “bottom up” model resulted in better and more enduring environmental outcomes. The SP and NBE Bills instead take a top-down approach that consolidates control more centrally.
Whether it delivers on the Minister’s aspirations for a faster, cheaper, better resource management system remains to be seen. This may depend on the ability of participants in the new system to weave together the diverse strands of thought represented by the new purposes, the concept of Te Oranga o te Taiao, the principles of Tiriti o Waitangi, systems outcomes, RSSs, the NPF, limits and targets, and mandatory decision-making principles.
If you would like to understand the implications for your business or property or would like assistance making a submission, then please get in touch.
Disclaimer. The information in this article is intended to provide a summary of the topic covered and is for general information only. It is provided without charge, is not comprehensive, and does not provide legal advice or other advice. Please seek independent advice before acting on any information in this article.