First published on the RMLA website, Monday 11 September 2017.
There have been widespread calls to reform the Resource Management Act (RMA), by separating urban land development provisions and environmental protection. Whether or not reforms are embarked upon, any such reform will take time, and we suggest there is a need for an interim solution for the timely delivery of infrastructure.
Our perception is that land supply constraints have been substantially removed under the Unitary Plan and Special Housing Areas (SHA) legislation. Other constraints to development are now to the fore including supply of infrastructure, development funding, land banking and increasingly, construction capacity constraints. Of these, only infrastructure is a planning issue.
Auckland’s housing affordability crisis and the land that has been released for development mean there is an urgent need to facilitate infrastructure rollout to support housing development. There is no need to wait for new urban planning laws to be consulted on, drafted, enacted, and tested.
Further, there can be inadvertent and perverse outcomes with new legislation. This is due to decision-makers needing to interpret new concepts, rather than apply tried and tested concepts developed under the RMA.
We consider responsive and faster planning can be achieved in the short term by sticking to what we know but providing for a fast track process for infrastructure, perhaps with amended information expectations.
There are already a number of streamlined processes available under the RMA. These include a Board of Inquiry process with a nine month statutory timeframe for decisions. However, this process entails comprehensive and often prolonged hearings with evidence and cross-examination on issues which under other processes would usually have been resolved by people "having their say", or through mediated outcomes. Similarly, there is an option to apply for direct referral and have a project heard directly by the Environment Court. This is appropriate for certain projects, but may not be the best forum to handle at first instance the numerous infrastructure projects that are required now.
We have also seen the introduction of specific fast track processes such as those for Special Housing Areas, the Auckland Unitary Plan, and the Christchurch Replacement Plan.
Of these, in our view, the Special Housing Areas legislation has been particularly effective and efficient in terms of releasing urban land for housing development in a timely manner. Unfortunately the release of land at a planning level has not translated to developed section sales, including for the reasons identified above.
To support and facilitate release of this increased land supply, we propose a similar process for certain types of infrastructure under the RMA so there is an independent hearing panel process, with limited rights of appeal.
For designations, appeals would be limited to only those aspects of a panel's recommendations that are not accepted by the requiring authority.
Rewind the information expectation clock for designations
We think it would be beneficial if the information requirements for designations are reset.
RMA decision-makers have an on-going and ever deepening love affair with certainty. Similarly, community groups or those opposing developments often want to lock in clear outcomes. But anecdotally the increasing specificity in conditions can preclude better environmental and economic outcomes from being achieved at detailed design, and this is adding additional time and cost to both initial processes and where alterations to designations are required, including because of specificity of information provided at first instance.
Decision-makers undoubtedly expect and require more information to support applications compared to expectations at the time the RMA was enacted. New projects set new and higher benchmarks and expectations. As a consequence, requiring authorities are often locked into detailed conditions. However, these information expectations should and can be reset, particularly as there is a mandated outline plan process to provide additional detail to the relevant council once detailed design for a project has been undertaken. This is especially relevant to route protection for infrastructure which is not likely to be built for many years but where the location needs to be identified now to ensure pending development is appropriately integrated and efficient outcomes are not precluded by that development.
Still scope for overhaul in the future
Many organisations (including, amongst others, the Property Council, Infrastructure New Zealand, and the Environmental Defence Society) are calling for a comprehensive review of the RMA, and an overhaul of the environmental management and planning system for NZ. This review and reform is likely to take a number of years. This can happen in parallel with amendments to the RMA, SHA, or separate legislation, to fast-track regulatory approvals for much needed infrastructure to support housing development.
Any review of the RMA or new regime will need to carefully consider the best balance between certainty and flexibility, how to enable innovative approaches, and ensure the system is more responsive to both environmental pressures and development needs. Particular care will need to be taken to ensure that conflicting outcomes (dealing with environmental protection and urban land supply and planning respectively) are avoided.
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.