Draft RMA replacement Bill 1st step on long march

It will be subject to a three month select committee inquiry, the Terms of Reference for which include coming up with specific recommendations to make the existing RMA system less complex.

The deadline for submissions is 4 August 2021 and the committee must report back to the House by 18 October 2021. 

Exposure draft

The exposure draft is limited to the matters currently covered by Part 2 of the RMA and includes the NBEA’s proposed purpose, outcomes and approach to the national planning framework. It sets the scene for a more centralised planning structure with environmental bottom lines and an enhanced role for tangata whenua.

Environment Minister David Parker said the purpose of the inquiry was “to test and improve the contents of the Bill before it goes into the formal Parliamentary process”, expected next year.

He has also committed to consolidating New Zealand’s more than 100 existing plans and policy statements into around 14 regional plans across the country.

Committee Terms of Reference

The inquiry is to provide feedback on the extent to which the provisions in the exposure draft will support the objectives to:

• protect and where necessary restore the natural environment
• better enable development within environmental biophysical limits (including freshwater, coastal waters, estuaries, air, soil and biodiversity)
• give effect to the principles of Te Tiriti o Waitangi
• better prepare for adapting to climate change and risks from natural hazards, and
• improve system efficiency and effectiveness, and reduce complexity, while retaining appropriate local democratic input (the committee has been instructed to pay particular attention to this objective).

It has also been asked to collate a list of ideas for making the new regime more efficient, more proportionate to the scale and risks associated with the given activities, and more affordable for the end user.

To prompt the committee’s thinking on possible directions for system efficiencies the Parliamentary paper, Appendix 2, provides a number of examples under six themes:

• increased central direction and tools – e.g., increased accountability for councils, centralised digital tools and platforms, national standards and templates, standardised methods for assessing significance or determining technical matters
• efficiency in plan development and content, including streamlined consultation requirements for plan development, written submissions rather than oral, and stricter controls on the use of expert evidence
• reframing the RMA definition of adverse effects, including strengthened proportionality requirements for obligations to avoid, remedy or mitigate adverse effects on the environment
• simplified consent processes – e.g., limiting the information that can be requested, less use of discretionary activity status, national consenting pathways, standardising consent conditions, design guidelines and use of urban design panels for medium and high density developments, pre-consented model or multiple-use house/townhouse designs
• enabling more effective dispute resolution including reviewing the role and processes of the Environment Court and simplifying first instances processes such as Board of Inquiry or direct referral, and
• measures to speed up the delivery of infrastructure – removing statutory hurdles to designations and consents, classifying specified infrastructure as a controlled activity (e.g., for climate change mitigation and adaptation or to comply with health and safety requirements), and streamlining the Public Works Act objections process and the designation appeals process.

Our comment

Although some aspects of the proposed NBEA draw from the existing RMA framework, the extent of wider changes is significant and will have material implications for those that deal with the ‘environment’.

Successful engagement with elements of the inquiry will require a measure of technical expertise. Chapman Tripp will be happy to assist you with preparing a submission.

The terms of reference do not address critical policy around consenting, designations, plan making, public participation or the transitional provisions for bridging the NBEA and the RMA. We expect these important matters will be the subject of submissions nonetheless.

We note a few potential points of interest among the proposed provisions in the exposure draft:

• there is an emphasis on adopting a “precautionary approach” when setting environmental limits, preparing the National Planning Framework and preparing NBEA Plans
• a specific outcome is provided for “urban areas” but the scope of this term is not defined, suggesting that plan making committees may need to demarcate those areas
• mitigation captures offsetting and compensation when it’s explicitly provided for in an NBEA Plan or proposed by an applicant for consent
• the Government has favoured use of the terms ‘protect’, ‘restore’ and ‘enhance’ when referring to the purpose of the NBEA and the proposed environmental limits and outcomes. Given the significant case law that has been required to understand similar (but different) concepts under the RMA, we anticipate that there will be a lot to unpack to understand what those terms mean and how they should be implemented.

From here

Following the current submission process, a consolidated Bill will be introduced to Parliament in early 2022, at which point the public will have a second opportunity for input.

The further resource management package will also include:

• a Strategic Planning Act to be put to Parliament alongside the full NBEA, and
• a Climate Change Adaptation Act which will be consulted on in early 2022 to align with the National Climate Change Risk Assessment and is expected to be introduced in early 2023, although the Government has signalled that it may not be passed within the current term.

Our thanks to Charlotte Aspin and Amy Hill for writing this Brief Counsel.