September 2023

It has been a long and winding road, but the Government has achieved its aspirations to reform the resource management system in New Zealand. The replacement legislation, the Natural and Built Environment Act (NBEA) and the Spatial Planning Act (SPA) was given Royal Assent on 23 August 2023.

While the NBEA and SPA will repeal and replace the Resource Management Act 1991 (RMA), it is not yet time to say goodbye to the RMA. The complete transition to the new system is expected to take more than a decade, with the new system taking effect region-by-region as new planning documents are completed.

This long transition and the chance that the NBEA and SPA could be ‘gone by Christmas’ have left many practitioners wondering if it is worth reading the ~1000 pages of new legislation.

Regardless of the outcome of the general election on 14 October, there are parts of the new legislation that take effect the day after Royal Assent (24 August 2023). The six big ticket changes are:

1. Fast-track consenting

The NBEA’s new fast-track consenting process has come into effect. Aspiring consent applicants could seek Ministerial referral of any ‘eligible activity’ (which includes certain infrastructure and housing activities), which would then be considered by an expert consenting panel under the NBEA.

However, during the wider NBEA transition process (while the National Planning Framework, Regional Spatial Strategies and Natural Built Environment plans (NBE plans) are being developed), consent applications and expert consenting panel decisions will be processed and made under RMA planning instruments.

2. Shorter term for freshwater resource consents

Once the transition to the NBEA is complete, resource consents to take, use, dam or divert freshwater, or discharge to freshwater will have a maximum term of 10 years (rather than 35 years, under the RMA).

To prevent long-term consents being granted during the transition, any application made from the day after Royal Assent until the NBEA takes effect cannot be granted for a term exceeding 5 years after rules in a NBE plan take effect in a region. There are exceptions for certain infrastructure activities.

While such consents will be granted for shorter terms, they may be easier to obtain. Such applications are precluded from being publicly notified, so must be processed with either limited notification or non-notification.

3. Freshwater planning instruments

The NBEA amends section 80A of the RMA (which relates to the freshwater planning process). The amendments widen the meaning of a ‘freshwater planning instrument’ (to include particular provisions of a proposed regional plan or regional policy statement where they relate to freshwater) and change which instruments must, or may, use the freshwater planning process.

Among other things, the changes clarify that an entire regional policy statement could use the freshwater planning process, if the relevant council is satisfied that doing so is necessary to achieve integrated management of the natural and physical resources of the whole region.

4. Compliance, management and enforcement

New compliance and enforcement tools which come into force after Royal Assent include:

• an increase in maximum fine penalties under the RMA – the maximum fines have increased from $300,000 to $1,000,000 for individuals and from $600,000 to $10,000,000 for companies;
• changes to abatement notice provisions – to allow notices to be issued for breach of consent notices and covenants imposed by the conditions of a resource consent; and
• new powers for excessive noise directions – if an enforcement officer considers that excessive noise is being emitted from any place, an excessive noise direction may be issued, requiring the noise to be immediately reduced to a reasonable level.

5.  Contaminated land

The ‘polluter pays’ principle applies from the day after Royal Assent in relation to contaminated land. This sets a presumption that polluters are to bear the costs of managing pollution to prevent damage to human health and the environment. The principle empowers the Environmental Protection Authority (EPA) and the relevant local authority to recover all actual and reasonable costs from the polluter. Other changes that come into effect straight away include the Minister’s power to classify or declassify an area as a significant contaminated land site. If a site is classified as significant, the EPA becomes the lead regulator of that site.

6.  Aquaculture

The Minister of Aquaculture (currently the Minister for Oceans and Fisheries) has extended powers under the NBEA which also come into effect on 24 August 2023. These include the Minister’s power to:

• suspend consent applications for aquaculture for the purpose of managing a biosecurity concern or for the purpose of upholding the Crown’s settlement obligations under the Māori Commercial Aquaculture Claims Settlement Act 2004 (Settlement Act);
• make new regulations; and
• make decisions on the allocation of aquaculture space.

Regional and unitary councils also have responsibilities to update the mapping of aquaculture settlements areas in certain circumstances (i.e., for the purpose of preserving space for aquaculture activities under the Settlement Act).

Comment

While it will be some time before the full effects of the NBEA and SPA are felt (if ever!), these immediate changes are important and should not be overlooked.

If you have any questions about the NBEA or SPA, or the transition to the new system, please contact your lawyer.