RMA Reform: Key Elements and Key Questions
By Iain McManus
This article provides an overview of the resource management framework proposed to replace the Resource Management Act (“RMA”).
I have prepared a separate article discussing the resource consent process and the promise of faster, cheaper consents (spoiler alert – don’t hold your breath).
Bye Bye RMA, Hello SPA, NBEA and CAA
The Government proposes to replace the RMA with three Acts as follows:
- The Spatial Planning Act (“SPA”) which will set out the process for development of Regional Spatial Strategies (“RS strategies”);
- The Natural and Built Environment Act (“NBEA”) which (amongst other things) will set out the processes for development of a National Planning Framework (“NPF”), Natural and Built Environment Plans (“NBE plans”) and resource consent applications; and
- The Climate Adaptation Act (“CAA”) which will seek to address the complex issues associated with managed retreat and the funding of climate adaptation.
The SPA and NBEA were introduced to Parliament in November 2022 and are expected to be passed before the election in October 2023.
The CAA is expected to be introduced to Parliament sometime before the election but may not be passed until after the election.
Key Elements of the New Regime
National Planning Framework
The Government will create a NPF which will consolidate and extend existing national direction including the existing national planning standards (which guide the structure and content of plans), national policy statements and national environmental standards. The NPF will also include the Medium Density Residential Standards required under a recent amendment to the RMA and currently being incorporated into plans.
The NPF will sit at the top of the hierarchy of documents prepared under the new legislation (with RS strategies and NBE plans below). As such, RS strategies and NBE plans will need to comply with the NPF.
The NPF must be notified within 6 months after the NBEA is enacted.
Regional Spatial Strategies
RS strategies will provide long-term (30+ years), high-level strategic direction on the key issues and opportunities facing a region. They will identify areas that are suitable for development, require protection or restoration, require infrastructure and are particularly vulnerable to the effects of climate change and natural hazards.
RS strategies will be prepared by regional planning committees comprising central government, local government and mana whenua representatives (see separate commentary on regional planning committees below).
RS strategies must be publicly notified either on a date set by the Minister by Order in Council or (if no date is set) seven years after the SPA is enacted. RS strategies will need to be reviewed every nine years.
Natural and Built Environment Plans
NBE plans will be combined regional and district plans like the Auckland Unitary Plan, prepared on a regional rather than territorial authority basis. As a consequence, 15 NBE plans will replace more than 100 regional and district plans.
Like RS strategies, NBE plans will be prepared by regional planning committees comprising local government and mana whenua representatives but this time without central government representatives.
NBE plans must be notified within two years of a resolution by the regional planning committee to begin drafting a plan, however, the legislation does not appear to specify a timeframe within which regional planning committees must pass such a resolution. Once a plan is notified, the submission, hearing and recommendation processes must be completed within two years (which is a very tight timeframe by RMA standards).
Regional Planning Committees
Regional planning committees must comprise at least six members including at least one member from each local authority and at least two members appointed by an “iwi and hapu committee” set up by iwi and hapu.
The composition of regional planning committees must be agreed between the local authorities and the iwi and hapu committee in the region. If the parties cannot agree, it will be decided by the Local Government Commission.
The process of appointing iwi and hapu members onto a regional planning committee has the potential to be fraught with so many iwi and hapu in each region (in the Bay of Plenty, for example, there are 39 iwi and 260 hapu) and could lead to some very large committees which could in turn make decision-making slow and difficult.
Regional planning committees will be supported by secretariats drawn from local government staff and submissions on RS strategies and NBE plans will be heard by independent hearing panels. Regional planning committees, local authorities and others will be able to request changes to RS strategies and NBE plans.
New Purposes and Principles
The purpose and principles of the RMA will be replaced with new purposes for each Act, new “system outcomes” and new “decision-making principles”.
The stated purpose of the SPA is to provide for regional spatial strategies that:
- Assist in achieving the purpose of the NBEA and the system outcomes in the NBEA; and
- Promote integration in the performance of functions under the NBEA, the Land Transport Management Act and the Local Government Act.
The stated purpose of the NBEA is to:
(a) enable the use, development, and protection of the environment in a way that—
(i) supports the well-being of present generations without compromising the well-being of future generations; and
(ii) promotes outcomes for the benefit of the environment; and
(iii) complies with environmental limits and their associated targets; and
(iv) manages adverse effects; and
(b) recognise and uphold te Oranga o te Taiao.
Te Oranga o te Taiao is defined as:
(a) the health of the natural environment; and
(b) the essential relationship between the health of the natural environment and its capacity to sustain life; and
(c) the interconnectedness of all parts of the environment; and
(d) the intrinsic relationship between iwi and hapū and te Taiao
The NBEA also specifies a long list of “system outcomes” that the NPF and NBE plans must provide for (and which, by virtue of the cross-reference in the purpose of the SPA to the NBEA, RS strategies must “assist in achieving”). Notably, there is no prioritisation of the system outcomes. Given the long list of outcomes, there will inevitably be conflicts between outcomes, and the resolution of those conflicts seems likely to be an area ripe for litigation.
The NBEA also introduces a list of “decision-making principles” that the parties making decisions under the Act must abide by. These include a requirement to:
“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.”
This could have interesting and perhaps unintended consequences for the processing of resource consent applications, as discussed in my separate article on the resource consent process.
Key Questions
What are the next steps in the reform process?
The Government has promised to pass the SPA and NBEA before the election, which has been set down for October 2023. Following that,
the government will need to finalise the NPF and local authorities will need to set up regional planning committees to start the process of
preparing RS strategies.
Will Auckland Council have to replace the Unitary Plan?
Yes, the Unitary Plan will eventually be replaced with a RS strategy and a NBE plan. Until then, the Unitary Plan will continue to
apply.
How long will the whole process of replacing RMA plans take?
A long time – potentially up to 10 years – with the timeframe likely to vary significantly from region to region.
Will resource consent applications (and decisions) need to address RS strategies before NBE plans are adopted?
This is not made clear in the legislation.
The NBEA states that resource consent applications will be processed under the RMA until the regional planning committee notifies its decisions on the NBE plan for the region.
However, the Bill does not explicitly exclude a RS strategy from consideration under RMA processes. As such, it could be argued that RS strategies are relevant under section 104(1)(c) of the RMA, which requires consideration of “any matter relevant and reasonably necessary to determine the application”.
This could create difficulties if the strategic direction under the RS strategy is different to that under the RMA plans. On the
flipside, a failure to have regard to RS strategies could lead to land uses being approved during the intervening period that are not in
keeping with the RS strategy.
Will the reforms reduce the number of resource consent applications lodged with councils?
The government says that the reform will see more activities identified as permitted activities subject to performance standards and that this will reduce the number of applications that need to be processed by councils.
In my opinion, this is unlikely to happen – councils have always had the power to permit activities subject to performance standards and have used the power sparingly. The government will need to use the NPF to significantly change that.
Furthermore, even if the reform does ultimately lead to fewer resource consents being required, this is likely to be offset by an increase
in the number of certificate of compliance applications, as the expansion of permitted activities subject to performance standards increases
the need to confirm and document activity status at the time of an activity’s establishment.
Will the reforms enable faster and cheaper resource consents?
That is what the government is promising but don’t hold your breath – there are lots of fishhooks in the new legislation that in my opinion are likely to lead to the opposite outcome. I have written a separate article on this question.
Feel free to contact us if you would like to discuss the implications of the reforms for your upcoming projects.
