Chapman Tripp | Election Insights 2023 - Resource management uncertainty to be prolonged

National will reverse the Natural and Built Environment Act and the Spatial Planning Act “by Christmas”, reverting to the Resource Management Act 1991 until it has developed, consulted on and passed alternative legislation.

No-one knows how long that will take, but the journey toward Labour’s two Acts began in 2019 and we are still awaiting the “finisher” in the trifecta – the proposed Climate Adaptation Act.

The effect of the immediate repeal will not be as dramatic as the announcement would suggest because, even had the Acts been retained, the RMA would have remained substantially in force, for up to 10 years in many cases, as the various planning and other implementation documents were prepared.

And Labour invited a strongly political response from National by pushing the two Bills through the House in the dying days of the last Parliamentary term with the result that they are not quite “there” in our view.

The unknown status of the RMA, however, will drag on for longer despite all the main parties agreeing that major reform of the RMA is needed, and despite policy fatigue among those stakeholders who have already invested significant time and resources in the reform exercise.

The details of what National will do instead are relatively scarce at this stage. They have said they will reduce red-tape and promote fast track consenting, and they have announced specific initiatives to speed consent timeframes for renewable energy and climate change projects (see our commentaries on climate change policy and energy policy).

But another full round of technical advisory groups, reports and select committee processes seems on the cards.

Medium density legislation also to be diluted

National is also committed to watering down the Enabling Housing Supply Act 2021 by giving local councils “flexibility” in relation to the medium density residential standards (RDRS) designed to curb NIMBY-ism.

This is despite the fact that it began life as a bipartisan initiative brokered by Housing Minister Megan Woods and National Deputy Leader Nicola Willis and that local authorities and other participants have invested significantly in these processes to date – a reversal will only invite another round of ‘planning churn’.

ACT and NZ First

In terms of National’s potential coalition partners, ACT’s position is very much aligned with the laissez-faire ethos adopted in other policies – a greater emphasis on property rights, and less local council regulation. ACT would replace the RMA with a new Environmental Protection Act and an Urban Development Act.

New Zealand First would return to a ‘Town and Country Planning Act’ approach (based on the English and Irish legislative model), which effectively means fewer third-party rights and reduced public participation.

Chapman Tripp comment

We hope that the new government can find a way to avoid tossing the baby out with the bath water. A fairly consistent theme from stakeholder feedback – councils, iwi, business and environmental groups – was that the reforms wouldn’t achieve the step change needed to the RMA and that the drafting created scope for unnecessary complexity and expense.

But there are surely some aspects of the new regime that National can endorse so that the effort that went into the Labour reforms isn’t entirely wasted. Elements we think are worth refining and keeping include:

At a general level, adoption of a more ‘top down’ and strategic perspective that focuses on positive outcomes, supports integrated planning across the system and promotes regional long-term infrastructure and growth;
The consolidation of RMA national direction into a single, cohesive, national planning framework, including a particular enabling chapter on infrastructure. Many of the current system’s failures are attributable to a lack of such cohesion. That said, a clearer and more comprehensive approach is needed than the draft released by Labour for consultation on 2 October 2023;
An extended fast-track process, built on the mechanism introduced by Labour as part of its COVID response;
Requiring one consolidated plan for each region – meaning just 16 plans rather than the more than one hundred we have now;
Supporting plan rationalisation with much greater standardisation through the National Planning Framework. The Enabling Housing Act provisions have shown that even a relatively small amount of discretion for local councils will lead to widely different approaches to manging the same issues. This is unnecessary and inefficient; and
Greater emphasis on the national importance of infrastructure and addressing climate change.

There are also a host of process improvements that, with some further thought and refinement, could be beneficial. Streamlining consenting processes and ‘right sizing’ participation in approvals is one. Addressing council conservatism by providing more structure and guidance on information and assessment requirements is another. These have been significant contributors to the delays and uncertainties under the RMA.