Resource Management Act replacements unveiled

They are the first step as the Government replaces the Resource Management Act 1991 (RMA) with two new Acts:

• the Natural Environment Act, focused on managing the impacts from the use of natural resources and protecting the natural environment from harm; and
  
  
• the Planning Act, focused on enabling development and regulating how land is used.

We attended the Government’s announcement relating to the Bills at Parliament today. While we are taking the time to work through the detail, several key changes are clear from the announcements and fact sheets released with the Bills, which will be of immediate interest to users of New Zealand’s environment and planning system.

We summarise some of the most relevant excerpts from the fact sheets below:

Immediate action: extending the life of existing consents

The Resource Management (Duration of Consents) Amendment Bill will be introduced to Parliament this afternoon and passed under urgency this week. It will extend the life of existing consents to provide continuity through the transition to the new system.

Under the Amendment Bill, the expiry dates of consents expiring before replacement legislation is in place will be extended by two years to 31 December 2027. When the Natural Environment and Planning Bills are passed next year, those consents are proposed to be extended again to mid-2031 (two years after the end of the transition period for the new system). Consent holders will have flexibility to either apply for replacement consents under the transitional regime or wait until the new planning system is in place. The new planning system is intended to be fully operational by 2029.

These extensions will not apply if they would create consent durations longer than 35 years for water-related consents, and they will not apply to wastewater network consents, which remain subject to specific requirements under the recent wastewater standards.

Transition to the new planning system: new consent applications will follow a transitional RMA process

The Bills will enable new consent applications to be lodged during the transition period under a tailored RMA process. That transitional process will adopt selected features of the new system ahead of time, including limits on the test for public notification and the scope of effects that can be considered. The transitional process will also introduce some core national standards to provide consent-free activity pathways and procedural principles, such as proportionality, that will have immediate effect. These changes are intended to ensure a smooth transition to the new system.

Continuity of rights: existing consents will carry over 

Existing consents will carry over into the new system. This provides important continuity for consent holders.

Regulatory relief (rather than regulatory taking) where planning controls bite 

The new system will introduce a regulatory relief framework that requires councils to consider the impacts of certain planning controls on landowners when developing plans and to provide relief where the impact is significant. The threshold for relief will be lower than under the RMA. The controls covered include land-based indigenous biodiversity and significant natural areas, significant historic heritage (including sites of significance to Māori), outstanding natural features and landscapes, and areas of high natural character in the coastal environment, wetlands, lakes and rivers and their margins. This is a shift from the originally proposed ‘regulatory takings’ initially contemplated by the Government.

Councils will have a suite of tools to provide relief, including cash payments, rates relief, bonus development rights, no-fee consents, land swaps, and access to grants or expert advice. A new Planning Tribunal will have a role in resolving disputes about how councils have provided relief.

Fewer and faster consents and permits

Officials estimate that up to 49% of consent and permit applications required under the RMA could be removed under the new system, representing between 15,000 and 22,000 consents no longer needed (based on 2023/2024 data). Changes to achieve fewer and faster consents and permits include:

• The new system will no longer include the RMA categories of non-complying and controlled activities. Most consents will be restricted discretionary activities.
  
  
• More activities will be permitted without the need for a consent or permit, particularly those with less than minor adverse effects.
  
  
• The new system will change the way people can participate in consenting processes. The Bills propose to:

• • Only allow people who are materially affected to participate in the consenting and permitting process.
    
    
  • Raise the bar for targeted notification to where the effects are more than minor.
    
    
  • Only allow public notification under the Planning Bill where you cannot identify all affected parties.
    
    
  • Raise the bar for public notification under the National Environment Bill to be where effects are significant and you cannot identify all affected parties.

More certainty for faster infrastructure, including special pathways for essential infrastructure.

The new planning system is designed to speed up all development, including infrastructure, providing more certainty about what can be built and where.

Key changes include:

• An extended duration of permits for long-lived infrastructure of up to 50 years, providing more certainty for infrastructure operators.
  
  
• Councils must deliver infrastructure. The government advises that councils cannot block development because of a lack of infrastructure but must deliver it in a timely way. National standards will set rules about when councils are allowed to consider if there is enough infrastructure to support a development.
  
  
• The introduction of special pathways for essential infrastructure – critical projects that exceed environmental limits and can't be located elsewhere. Such infrastructure, such as ports, airports, major transport projects and energy networks, may qualify for an exception under the Natural Environment Bill. In these cases, the environmental limit will still apply and an action plan will need to address it. National instruments (rules) will provide ways for essential infrastructure to be approved in areas that are normally protected.

National Direction coming soon

National policy direction under the new system will be finalised within nine months of the Bills becoming law. Mandatory national standards will be delivered in stages and aligned with council plan-making needs.

Conclusion

We are conducting an in-depth analysis of the Natural Environment and Planning Bills and will provide further insights on their implications in the coming weeks. 

If you have any questions about this article, please get in touch with the contacts listed or your usual Bell Gully adviser.

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Disclaimer: This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.