Transformation in short supply as new environment and planning bills echo previous legislation

16 November 2022

Long-awaited legislation to overhaul New Zealand’s resource management regime has arrived – but large parts of the Natural and Built Environments Bill (NBA) mirrors the often-criticised legislation that it will replace.

Introduced into Parliament on 15 November, the Spatial Planning Bill (SPA) and NBA could have reflected a transformative environmental management and planning system to support the complex challenges facing our society. Instead, they largely represent the status quo, with numerous parts of the NBA identical to the equivalent provisions in the existing Resource Management Act (RMA). Some may argue this is an efficient approach, but surely there was an opportunity to consolidate and refine existing processes and provisions to reduce the length of the NBA which is currently over 800 pages.

There have been some areas of change which warrant attention, and those engaging with the planning system will want to consider the implications of these. Those with broader ambitions for the review may also wish to consider further participation in the select committee submission process.

Diagram: an overview of the new planning system.

Key changes

Ten of the most significant changes to emerge are as follows:

1. Changes to the purpose and principles ‘Part 2’

The purpose of the NBA is both to recognise and uphold te Oranga o te Taiao1 and enable the use, development and protection of the environment in a way that:

  • supports the well-being of present generations without compromising the well-being of future generations;
  • promotes the outcomes for the benefit of the environment;
  • complies with environmental limits and their associated targets; and
  • manages adverse effects.

The Government intends the NBA to reflect a move away from an effects-based regime under the RMA to an outcomes based regime. In practice, this should support greater focus on how plans and projects are assisting to achieve the sixteen outcomes identified in the NBA.

In terms of the incorporation of te Tiriti, all persons exercising powers and performing functions and duties under the NBA must “give effect to” the principles of te Tiriti o Waitangi – rather than “take into account” these principles under the RMA. As confirmed by the Supreme Court, “give effect to” means “implement” and is a strong directive, creating a firm obligation on the part of those subject to it. The recent High Court Te Korowai decision about the Te Tiriti test under the COVID-19 Recovery (Fast Track Consenting) Act 2020 (COVID-19 Recovery Act) in the context of a proposed hydrogen hub at Kapuni highlights some of the challenges in implementing a similar directive in practice – for iwi, applicants, and decision-makers.

2. National Planning Framework

A National Planning Framework (NPF) is proposed to provide a single consolidated, comprehensive framework and direction to those developing Regional Spatial Strategies and NBA plans.

The NPF is a positive step forward: one of the issues under the RMA has been the development of national policy in siloes and a failure to reconcile conflicts between competing national priorities and direction.

3. Regional Spatial Strategies

Under the SPA every region must have a Regional Spatial Strategy (RSS) to be renewed at least every nine years after it is adopted.

An RSS will set out the vision and objectives for the region’s development and change and set out the actions that need to be taken as a matter of priority to achieve its vision and objectives.

While long-term spatial planning is welcomed, it needs to be coupled with meaningful implementation plans and agreements if it is to be effective in practice. In addition, it is critical that issues relating to infrastructure funding and financing are resolved – a topic which is not tackled by these reforms.

4. NBA Combined Plans

Every region must have a Natural and Built Environment Plan (NBA Plan) instead of separate regional and district plans. This means there will be 15 plans for the whole of Aotearoa New Zealand, rather than the 100 plus regional policy statements and regional and district plans we currently have. This change should assist in making the system more navigable and reducing costs and complexities.

The NBA Plan will give effect to the National Planning Framework (NPF) and be consistent with the regional spatial strategy. Hearings on submissions on NBA plans are to be held by Independent Hearing Panels, with final decisions made by Regional Planning Committees (RPCs) as outlined below.

5. Regional Planning Committees

An RPC is to have a minimum of six members, but no maximum and be supported by a secretariat. The RPC may include at least one member from each local authority and must include two members appointed by one or more Māori appointing bodies of the region. Local authorities and the iwi and hapū committee in the region must reach agreement on the composition of the RPC. We can anticipate the composition of certain RPCs will be legislated for, where this is required to uphold Treaty settlements.

Under the NBA, if the RPC accepts the Independent Hearings Panel’s (IHP) recommendations, appeals can be made to the High Court on a question of law only; alternatively, if the RPC rejects the IHP’s recommendations and makes an alternative decision, appeals may be made to the Environment Court in respect of the differences between the alternative decision and the IHP recommendation. Appeals can also be made to the Environment Court where the RPC accepts the IHP’s recommendations are beyond the scope of submissions.

6. National Māori Entity

A National Māori Entity will be established which will:

  • provide independent monitoring of decisions taken under the NBA and SPA to inform and support positive progress at the national, regional or local levels, as relevant, in managing the environment; and
  • monitor and assess the cumulative effect of the exercise of functions, powers and duties under the NBA and SPA by monitored entities in giving effect to the principles of Te Tiriti.

As was made clear in a recent urgent hearing in the Waitangi Tribunal, there is a strong view that the Government should be engaging with iwi and hapū directly in respect of the performance of the Crown and other entities in giving effect to the principles of Te Tiriti, rather than engaging with a national entity.2

There is a risk that the Government does not meaningfully engage and partner with iwi and instead defers to the National Māori Entity for feedback and input.

7. Fast track consenting pathway for eligible infrastructure and specified housing

The NBA includes a fast track consenting model similar to that set out in the COVID-19 Recovery Act. The process does not require notification (unless required by the NPF or relevant plan), nor hearings to be held. It therefore represents a significant change in the process for the consenting of eligible activities. These activities include renewal of consents for renewable energy generation, wind or solar energy generation, housing developments that meet certain thresholds, and a range of infrastructure projects and government assets.

There is a two-year lapse date, which means the process is only applicable to projects that are “construction ready”.

8. Amendments to designation provisions

The NBA makes it clear a requiring authority can use a route protection process to confirm a designation before a primary Construction and Implementation Plan (CIP) is submitted prior to construction.

A primary CIP must identify the anticipated construction and operation activities, the associated effects, and how the requiring authority intends to manage those effects. A secondary CIP replaces the outline plan process and must show details about the project or work, but the requirement to provide it may be waived.

If the infrastructure concerned has been spatially identified in a regional spatial strategy, then there is no requirement to consider alternative sites, routes or methods of undertaking the work. An interest in land must be treated as not being taken or injuriously affected by any provision in a regional spatial strategy unless the SPA provides otherwise.

There are also a list of matters a RPC must not have regard to, including effect on scenic views from private properties, and any adverse effects arising from the use of the land by people on low incomes or people with special housing needs.

9. New regime for contaminated land

The NBA proposes a fundamentally different approach to the management of contaminated land in New Zealand.

At its core, the NBA introduces a ‘polluter pays principle’ whereby those who produce pollution should bear the costs of managing it to prevent damage to human health and the environment. If land is contaminated to an extent that it poses an unacceptable risk to human health or the environment, then landowners are required to notify the regional council of the contamination and take steps around managing, investigating and monitoring the contamination to appropriate levels.

The NBA includes a new regime for the classification of significantly contaminated land, including identifying contaminated sites of national significance.

10. Clearer notification process and new dispute resolution processes

The NBA provides that the NPF or plans are to establish the notification status of activities, or state the notification status will be determined subsequently. If the NPF or plans do provide clarity as to notification then this will provide greater certainty to applicants as to how their application will be processed, compared to the current approach which provides for case-by-case assessments by local authorities.

The NBA includes an Alternative Dispute Resolution process for controlled, non-notified, or limited notified activities that relate to matters that are discrete or confined to a particular location. There is also the ability for local authorities to refer matters to mediation. These processes should assist in making the system less adversarial for straight-forward applications.

Next steps

There will be an opportunity to make submissions to the Select Committee, but the closing date has not been announced.

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

1 The NBA defines Te Oranga o te Taiao to mean the: health of the natural environment; intrinsic relationship between iwi and hapū and te taiao; essential relationship between the health of the natural environment and its capacity to sustain life; and interconnectedness of all parts of the environment.

2 The Interim Report on Māori Appointments to Regional Planning Committees, Wai 2358, Waitangi Tribunal Report 2022.