Resource Management Reforms Edge Closer to Law

Mary Hill

Partners

Partner

Phone: +64 7 927 0590
Email: mhill@clmlaw.co.nz

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Bachelor of Arts, Bachelor of Laws (First Class Honours), University of Canterbury

Master of Commercial Law (First Class Honours), University of Auckland

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Rachael Zame

Special Counsel

Special Counsel

Phone: +64 7 927 0522
Email: rzame@clmlaw.co.nz

LinkedIn

Bachelor of Laws, Bachelor of Science, University of Otago 

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Jemma Hollis

Solicitors

Solicitor

Phone: +64 7 927 0528
Email: jhollis@clmlaw.co.nz

Bachelor of Laws Hons (1st class); Bachelor of Science

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Kate Stubbing

Senior Associate

Senior Associate

Phone: +64 7 927 0595
Email: KStubbing@clmlaw.co.nz

LLB / BCom, University of Otago

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Yesterday the Environment Select Committee released their final report on what is shaping up to be a game changing suite of resource management legislation. You can read our article on the first iteration of the Natural and Built Environments Bill (NBEB) here. Below, we highlight some of the key changes proposed by the Committee to both the NBEB and the Spatial Planning Bill (SPB).

A key change recommended by the Select Committee is to provide for a single purpose in the NBEA: to uphold te Oranga o te Taiao. That purpose must be achieved in a way that protects the health of the natural environment, and (subject to that outcome) enables the use and development of the environment. The Committee has also made explicit a key objective of the reform: to reduce the reliance on resource consent processes through proper upfront planning.

Other key changes to the NBEB

Which outcome prevails, continued – how to manage potentially competing outcomes (e.g. protecting wetlands vs providing housing) has been a huge topic of conversation, with the first version of the NBEB providing limited assistance. The Committee has recommended a number of principles to follow when providing for system outcomes and considering conflicts:   

  • The health of the natural environment and its capacity to sustain life must be protected
  • Not all outcomes must be achieved in all places or at all times
  • Outcome conflicts must be identified at the highest practicable level in the planning regime - i.e. the National Planning Framework (NPF), then in NBE plans
  • Achieving outcome compatibility must be preferred over achieving one outcome at the expense of another
  • Achieving outcomes must be preferred over avoiding conflict

In their comments regarding the shortcomings of the Bill, the Green Party note that the large number of outcomes and the lack of priority for environmental outcomes, together with the decision-making principles, risks a return to the subjective “overall broad judgment” approach by decision makers which has been removed by the courts.

One area where the Committee has provided specific guidance relates to the outcome concerning supply of land for development. Wishing to avoid a perception of promoting urban expansion, the outcome seeking an “ample supply” of land for development now seeks “development capacity” which ensures demand does not outstrip capacity. ‘Development capacity’ now includes both brownfields and greenfields development. In addition, the system outcomes have been amended to reflect the objective of the new National Policy Statement for Highly Productive land, being that highly productive land is protected for use in land-based primary production both now and for future generations. 

Limits and targets - the purpose of limits and targets has been broadened, with separate purpose statements for minimum acceptable limits, mandatory targets, and discretionary targets. The Select Committee notes that limits will seek to prevent any ecological degradation, and targets will drive improvement. For mandatory targets, the Committee recommends a “maintain and improve” approach, similar to that of the National Policy Statement for Freshwater Management. Discretionary targets are expected to be used for additional social, economic, and ecological outcomes relevant to achieving system, framework or NBE plan outcomes. The Committee has recommended removing interim limits, which under the first draft of the Bill were to be imposed through the NPF.

All polluters must pay - The “polluter pays” principle was a notable introduction to the contaminated land provisions in the first version of the NBEB. Under this principle, those who pollute should bear the costs of preventing damage to human health and the environment. To ensure that cost considerations are addressed at the most appropriate level, the Committee recommends that decision makers apply the principle during development of the NPF and NBE Plans as a general consideration not limited to contaminated land.

Urban trees – tree protections have been strengthened further. The Committee has recommended that City and District Councils have a general and unrestricted obligation to protect trees and the urban canopy. Trees needn’t be specifically identified as requiring protection, but specific tree protection rules will have immediate legal effect. The NPF will provide mandatory direction on protecting urban trees.

No new RMA plans - The Committee recommends making it clear in the NBEB that councils must not initiate full RMA plan reviews in the period between the bill’s Royal assent and before the Regional Planning Committee (RPC) starts preparing the NBE plan.

Māori interests - The Committee has recommended amending the definition of tikanga to include customary law, in line with other legislation and a growing body of common law. In response to concerns raised by the Chief Justice, the Committee has agreed that the proposed new National Māori Entity should not be able to monitor courts or tribunals, but it can comment on how the courts are applying the law. Also, the obligation to “give effect to” the principles of te Tiriti o Waitangi will not apply to the courts.

Climate Change - key changes include:

  • More direct references to the greenhouse gas emission (GHG) targets in the Climate Change Response Act in system outcomes and the link between natural hazard risk and the effects of climate change. 
  • Enabling existing use rights to be changed or extinguished where natural hazards, climate change or contaminated land rules reduce, mitigate or adapt to risk. 
  • A regional planning committee must ‘have regard to’ the national adaptation plan  and the emissions reduction plan.
  • Subdivision consent can be refused where necessary to avoid, reduce or mitigate current and future risks and the effects of climate change.
  • The Minister can decline a ‘fast-track’ resource consent application if the project could have significant adverse environmental effects, including GHG emissions.

SPB – key changes include:

  • Promoting integration between the Government’s water reform proposals and the spatial planning changes, by incorporating the Water Services Entities Act 2022 in the SPB.
  • Including highly productive land as an example of the kind of land that may be appropriate to set aside for rural use.
  • Enabling RPCs to consider the infrastructure and land use changes that may be needed to support the production of renewable energy and the reduction of greenhouse gases.
  • Clarifying that RPCs must adopt their first spatial strategy within 3 years after the RPC is established, although they can apply to the Minister for an extension.

Next Steps
Both National and Act have expressed significant dissatisfaction with the Bills, citing increased bureaucracy, cost and complexity, and National have pledged to repeal the changes after October’s election if voted into power. For now, the Bills are still on track to be passed into law in the Labour Government’s current term. We continue to await the introduction of the Climate Adaptation Bill, which is intended to address more complex adaptation issues, such as managed retreat. 

Our specialist Resource Management Team has been following the reforms closely and are well placed to help you understand the changes. If you have questions about the proposed reform, please get in touch with a member of our Resource Management team.

 

 

Latest Update - 29 June 2023

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