March 2023

The planet hitting a recent population milestone of over 8 billion people is certainly good timing for New Zealand’s updated resource management framework, with the introduction of the Spatial Planning Bill and the Natural and Built Environment Bill (NBE).^[1] These Bills are currently open for submissions.

Main changes

The new Acts will create a new system for environmental management in New Zealand and will replace the Resource Management Act. The main changes include:

1. A National Planning Framework (’Framework’), providing the leading direction for the new spatial strategies and plans (current district and regional plans) will undergo a complete rewrite. The current national direction instruments will remain, and more will be created. The Framework can be seen as a higher-level planning tool.^[2] A Framework rule will prevail over a plan rule (unless the plan is more stringent).^[3]
2. Environmental limits – there will be environmental limits (being the minimum tolerance or the maximum amount of harm or stress) set for:^[4]
   1. air;
   2. indigenous biodiversity;
   3. coastal water;
   4. estuaries;
   5. freshwater; and
   6. soil.

The purpose of an environmental limit is to prevent the degradation of the ecological integrity of the natural environment and to protect human health.^[5]

3. Targets are set directly in the Framework or under the new Plans. The purpose of a target is to help improve the state of the natural and built environment.^[6] Targets must be measurable, have a specified time limit for their achievement, and be designed to assist in achieving an outcome.
4. Regional Planning Committees – which will develop the spatial strategies and plans.
5. Consenting – there will be more direction on what type of consent is needed, who is considered affected and who needs to be notified. There will also be fewer categories of consenting activity, eliminating non-complying and restricted discretionary consents. The categories are:^[7]
   1. permitted;
   2. controlled – activities that align with outcomes and the effects are known;
   3. discretionary – activities where the effects are generally unknown, and more information is needed; and
   4. prohibited – activity should be declined.

Spatial Planning Bill

The purpose of this new Act is to provide for regional spatial strategies (‘Strategy’) that assist in achieving the purpose of the NBE, including by recognising and upholding Oranga o te Taiao (see below); the system outcomes as set in the NBE; and promote the integration of the NBE, the Land Transport Management Act 2003, and the Local Government Act 2002.^[8]

Every region is required to have its own Strategy^[9], which is to be for a time period of not less than 30 years,^[10] and renewed every nine years (as is the Framework and the Plans). The planning committee is set up under the NBE.

The Strategy must include a range of information, including but not limited to areas that may require protection, restoration or enhancement, cultural heritage, where urban development could take place, areas that are appropriate for developing natural resources, rural areas, coastal marine areas, major infrastructure corridors, natural hazards, vulnerable areas for natural hazards and climate change.^[11]

There is the ability for the Regional Planning Committee to extend these topics if the matter is of sufficient significance.^[12] This allows flexibility to the planning committee on a region by region basis.

For Waikato in particular, Te Ture Whaimana is deemed to be a part of any Strategy that affects the Waikato or Waipā Rivers.^[13]

When preparing the new Strategy, the planning committee must have particular regard to government policy statements, any planning documents recognised by iwi and any statements of regional environmental or community outcomes.^[14]

The planning committee must have regard to spatial strategies, plans or other instructions made under other legislation.

The creation of a new Strategy may include a hearing, but this is not an essential  requirement. The Strategy creation process does, however need to encourage participation.

Engagement agreements are a new concept, under which the Regional Planning Committee and at least one Māori group will record how the groups are going to participate in preparing the Strategy for the region.^[15] Cross Regional Planning Committees may also be established if issues cross over boundaries.^[16]

Powers are granted to the Minister for the Environment, who can request information and investigate the Regional Planning Committee or local authority.

Natural and Built Environment Bill

The Natural and Built Environment Bill (NBE) replaces the RMA, and operates together with the Spatial Planning Bill. The purpose of the NBE, outlined at clause 3 of the Bill, is that the use and development of the environment be supported for future generations, that outcomes are promoted, environmental limits and targets are complied with, managing adverse effects and recognising te Oranga o te Taiao. This te ao Māori concept speaks to the health of the natural environment, the essential relationship between the health of the natural environment and its capacity to sustain life, and the interconnectedness of all parts of the environment.^[17] Anyone exercising powers and performing functions and duties under the new Acts is to ’give effect’ to the principles of te Tiriti o Waitangi, as is the case under the Conservation Act 1987.

We comment on some of the changes below:^[18]

Natural and built environment plans (Plans)

The Plans will replace and effectively combine the current collection of regional policy statements and regional plans.  Each Plan will include environmental limits and targets, and will control the use, development and protection of land (similar to how plans govern use now) to give effect to the national planning framework.

Regional Planning Committees

These committees will set the Strategy and the Plans. The committees will be independent of local authorities comparable to the role of an Independent Commissioner. Each committee will have a minimum of two Māori members and six members overall.

Developing the Plan

The Plan development process will assist early collaboration by providing for an ’enduring submission’. An enduring submission can be lodged before notification of plans and continues in effect and throughout the plan hearing process. Statements of community outcomes will be drafted by territorial authorities to express the views of the local communities. Statements of regional environmental outcomes will be prepared by regional councils to outline environmental issues faced by the region. The report on the Plan evaluation, is required to be more plain-language, and encourage a cost-effective process. The Ministry for the Environment will have an auditing role in the Plan process. Hearings will remain similar, in that an independent panel will hear submissions.

Review of Plans and plan changes

The Regional Planning Committees will be required to review the Plan every nine years. The Regional Planning Committee, local authority or anyone else can initiate a Plan change. There will be three different types of Plan changes^[19]:

• the ‘standard’ process;
• a proportionate process for issues such as local rezoning, local centre planning, amending a heritage schedule, or localised natural resource issues; and
• an urgent process, subject to specific criteria.

Consenting

Councils will continue to be the consent authorities for resource consents, certificates and registering for permitted activities. There are changes to the types of activity status as noted above.

Notification

Clause 200 allows for the national planning framework or Plan to state the notification status of the activity or provide for the consent authority to determine the notification status. The National Planning Framework and Plan can also identify who is an affected person. The consent authority is not required to hold a hearing for notified consents, even if an applicant or submitter wishes to be heard.

Clause 204 outlines that a discretionary activity must be publicly notified unless a Plan or the Framework states that no notification or limited notification is required. 20 working days is now the time frame to submit for public or limited notified applications.

A regional alternative dispute resolution process can be used when the resource consent application has been made, but not determined. If this process is used, the adjudicator’s decision cannot be appealed.^[20]  If the alternative dispute resolution process is used for a Plan, the decision may be appealed.^[21]

Notification decisions made by consent authorities (if delegated by NBE Plans) can be challenged in the Environment Court by way of declaration. This is a positive change, as currently challenges can only be made via judicial review to the High Court, which creates extra cost and delay.

Affected applications

The Planning Framework or the Plan can direct consent applications to be dealt with as an ‘affected application’. An affected application follows a different process as outlined in Clauses 304 to 314 and it will relate to an activity specified in a plan rule.

Specified housing and infrastructure fast-track consenting process

There is an alternative consenting process for:

• communications;
• energy;
• housing;
• transport;
• water; and
• other central and local government assets.

Consent applications or notices of requirement for these eligible activities go to the Environmental Protection Authority, and the Minister for the Environment decides whether to accept them. The decision on the application or notice of requirement is made by an expert consenting panel. The panel decides whether it is appropriate to hold a hearing. This is similar to the Covid-19 Fast-Track process.

Existing uses

^[22]

Existing uses are protected provided they comply with rules that give effect to the national planning framework. There will be additional flexibility to council authorities when there are poor environmental outcomes. Plans will be able to make rules that will affect existing rights and land use consents when there is harm to the natural environment or risks associated with natural hazards, climate change or contaminated land. Consent authorities will be able to cancel land use consents through a review process on similar grounds.

Compliance, monitoring, and enforcement

Councils will carry out compliance, monitoring and enforcement. Some of the changes include:

• insurance will not be able to cover fines;
• compliance history will be reviewed by the local authority when applying for consent;
• monitoring of permitted activities can incur costs which are allocated to the operator; and
• consents will be able to be revoked.

Subdivision of land

Little to no change has been made to the subdivision provisions.

Freshwater

A Freshwater Working Group^[23] will be established to make recommendations on matters relating to freshwater allocation, and on a process for engagement between the Crown and iwi and hapū, at the regional or local level, on freshwater allocation. Freshwater will have environmental limits set. Freshwater farm plans that are being developed now will carry over to the new Act and are required to be certified.

Conclusion

The changes, including the new Plans, will take a while to be implemented and operative. The Bills themselves may see changes once the submission process has been completed. The final Acts may look a little different, but it is likely the concepts will remain the same.

 

[1] The Climate Adaptation Act is to be released in 2023.

[2] Clause 5 of the NBE outlines the system outcomes that the Framework and all plans must provide. Clause 33 of the NBE outlines the purpose of the National Planning Framework.

[3] Clause 89 NBE

[4] Management units must be set for environmental limits as well. Clause 54 NBE.

[5] Clause 37 NBE

[6] Clause 47 NBE.

[7] Clause 153 NBE

[8] S 3

[9] 12

[10] 15(1)(a)

[11] 17(1)-(2).

[12] Clause 18, Spatial Planning Bill.

[13] Clause 21, Spatial Planning Bill.

[14] Clause 24, Spatial Planning Bill.

[15] Clause 37, Spatial Planning Bill.

[16] Clause 42, Spatial Planning Bill.

[17] Clause 3, Natural and Built Environment Bill.

[18] There are a lot of changes. This article does not look at: Water and contaminated land management, Contaminated land, Coastal matters, Designations, Heritage protection orders, Places of national importance, including places of significant biodiversity and areas of highly vulnerable biodiversity, reclamation Esplanade reserves, esplanade strips, and access strips, Compliance and enforcement, the 15 schedules.

[19] Schedule 7, clauses 6-7.

[20] Clause 244, Natural and Built Environment Bill.

[21] Clause 252, Natural and Built Environment Bill.

[22] Clauses 26-30, Natural and Built Environment Bill.

[23] Clauses 689-693, Natural and Built Environment Bill.