Resource management reform - consultation underway on NBA exposure draft
Article date: 2021-06-29The next step has been taken in the multi-year process of reforming the Resource Management Act. Earlier today the Government released an exposure draft of the new Natural and Built Environments Bill for public consultation.
The next step has been taken in the multi-year process of reforming the Resource Management Act (RMA).
Earlier today the Government released an exposure draft of the new Natural and Built Environments Bill (the Bill) for public consultation. The resulting Natural and Built Environments Act (NBA) will be the main replacement law for the RMA, one of three new pieces of legislation set to do so. A Strategic Planning Act (SPA) and a new Climate Change Adaptation Act (CCA), both yet to be introduced to Parliament, round out the suite of proposed legislative changes.
The exposure draft:
Contains some of the structure and headings of the NBA, with key parts such as the replacement for Part 2 of the RMA fully drafted.
Does not contain details such as consenting processes, designations, proposals of national significance, Environment Court processes, water conservation, allocation methods, compliance, monitoring and enforcement and transitional arrangements which "will continue to be developed in parallel to the select committee inquiry," according to a briefing document on the reforms.1
Does not contain the process for preparing the new National Planning Framework (NPF) or natural and built environment plans.
Will a defined set of planning outcomes really guide the system?
The reform is based on the findings of the comprehensive review of the resource management system which was released last year. As part of its recommendations, the Review Panel amended the existing regime from being effects-based to an outcomes-focused system.2 The exposure draft includes a list of 16 outcomes which largely reflects the Review Panel's list of 21 outcomes, although the Government has placed greater emphasis on outcomes relating to housing supply.
There are a range of views on the efficacy of the outcomes-based approach. Parliamentary Commissioner for the Environment the Hon Simon Upton has expressed concern that “[the Review Panel's] attempt to focus on outcomes builds on a tendency to legislate for outcomes whether or not they lend themselves to legislative solution"3. While the Review Panel intended for the outcomes to identify those aspects of the natural, built and rural environments that warrant protection and enhancement, or issues that require a specified management approach,4 critics have warned that the approach does not acknowledge or resolve the issue of competing priorities:
“Those exercising powers under the Act are required to deliver 21 discrete, unprioritised outcomes. … The wide-ranging outcomes in play will inevitably come into conflict. In a democracy it is highly likely that political discourse will advocate multiple overlapping outcomes that are in the end incompatible with one another. Legislation can help expose those incoherencies … But simply spelling out a raft of new outcomes will not make them compatible or deliverable. We will need to be much more sophisticated than that to successfully tackle the underlying problems …."5
The Parliamentary Paper on the exposure draft recognises that resolving conflicts is a key role for the NPF and NBA plans. The exposure draft states that the NPF and NBA plans must include provisions to help resolve conflicts relating to the environment, including conflicts between or among the listed environmental outcomes. In addition, planning committees appointed to each region must have regard to the extent to which it is appropriate for conflicts between the listed environmental outcomes to be resolved generally by the plan or on a case-by-case basis by resource consents or designations. The Parliamentary Paper on the exposure draft notes that not all conflicts between outcomes can be foreseen and conclusively resolved in advance. It notes that the full Bill will therefore provide mechanisms for decision-makers to resolve conflicts at the consenting stage.6
The Parliamentary Commissioner for the Environment has on occasion referred to Part 2 as being “as close as environmental law gets to having constitutional status".7 Despite the content of the exposure draft being largely consistent with changes previously signalled by the Review Panel, the merits of this new 'purpose' clause will no doubt be closely scrutinised and fiercely debated in the coming months.
Next steps and timeframes:
A select committee inquiry into the exposure draft will occur in the second half of 2021. The select committee will call for the public to make submissions on the Bill at the beginning of July.8
The select committee will report its findings to Parliament and any changes will be made before the full Bill is formally introduced.
Other components of the full Bill that were not developed in time for the exposure draft will be considered by the Ministerial Oversight Group before being included in the full Bill.
The SPA will be developed in parallel to the Bill and will be closely aligned to the development of the CCA.
A standard legislative and select committee process will follow with the aim of the Bill and the SPA bill being introduced to Parliament in early 2022 and passed into law by the end of the current parliamentary term. The intention is for the CCA bill to be introduced to Parliament in early 2023.9
If you have any questions about the proposed reforms or the RMA reform process, contact the authors or your usual
Bell Gully adviser.
1 Cabinet paper – Reforming the resource management system. https://rmla.org.nz/wp-content/uploads/2021/02/Cabinet-paper-reforming-the-resource-management-system.pdf.
2 Resource Management Review Panel, 2020. New Directions for Resource Management in New Zealand. Wellington: Ministry for the Environment.
3 RMLA Salmon Lecture 2020, 'RMA Reform: coming full circle', Simon Upton, pg 8.
4 Resource Management Review Panel, 2020. New Directions for Resource Management in New Zealand. Wellington: Ministry for the Environment, para 120.
5 RMLA Salmon Lecture 2020, 'RMA Reform: coming full circle', Simon Upton, pg 9.
6 Natural and Built Environments Bill: Parliamentary paper on the exposure draft, pg 21.
7 RMLA Salmon Lecture 2020, 'RMA Reform: coming full circle', Simon Upton, pg 19.
8 About the exposure draft for the Natural and Built Environments Act | Ministry for the Environment
9 Natural and Built Environments Bill: Parliamentary paper on the exposure draft, pg 13.
