Environmental / Resource Management

An Update on the 2015 RMA Reforms

Rotary meetings seldom grab the national headlines but this all changed in late January. No it wasn't an installation of the hallowed 32 burner BBQ at the local park, but a topic just as hot - the Minister for the Environment's speech on reform of the Resource Management Act 1991 (RMA). The attention was justified.

Sure the speech was light on detail, but that is to be expected given policy development and work on a proposed Bill is continuing at pace. What it did provide was a sense of Minister Nick Smith's vision for the reforms and how that differs from the direction taken by the previous Minister. When considered alongside the February 2013 discussion document (Ministry for the Environment, Improving our Resource Management System Discussion Document) released by the previous Minister, the speech allows a map for the reforms to be drawn, albeit by inference.

The Reforms

The Minister has described the reforms as the "most significant overhaul of the Act since its inception 25 years ago". He identified five broad categories: updating the purpose and principles; streamlining plan-making and standardising plans; increasing collaboration and reducing litigation; greater recognition of property rights; and stronger national consistency and direction.

Purpose And Principles

The Minister considers the purposes and principles in Part 2 of the Act to be out-dated and ill-matched with today's resource management issues, in particular urban environment and housing development matters. While he has clarified that no changes will be made to the over-riding principle of sustainable management (section 5), he predicts the changes to Part 2 will remain the most contentious part of the reforms.

The Minister was silent on whether section 6 and 7 will be merged, but he did identify some primary changes to the provisions of those sections:

  • The inclusion of the management of significant natural hazards to reflect that New Zealand is one of the most natural hazard prone countries in the world. A complementary amendment to section 106 was also proposed in the 2013 discussion document to ensure natural hazards are appropriately considered in both subdivision and other land use consents, but this specific provision was not mentioned in the speech.
  • Express recognition of the urban environment. The Minister notes that while over 80% of resource consents concern urban matters, there is no direct mention of the urban environment in Part 2.
  • Recognition of economic growth, jobs and exports to enable decision makers to carefully weigh up the effects on the environment alongside the benefits of economic growth and jobs.
  • Recognising the importance of more affordable housing. This will require decision makers to explicitly consider housing supply and affordability alongside factors like amenity, natural character and heritage. Not mentioned by the Minister, but featured in the discussion document, was a proposal for tighter controls on time between the granting of subdivision consents, approval of survey plans and plan deposit, aimed at reducing the ability of developers and investors to land bank.
  • Inclusion of a provision for appropriate infrastructure.

The Minister has also suggested the text of Part 2 will be reviewed in the light of recent case law. Again no elaboration was provided, but this suggests the Minister is still digesting the full impact of recent case law on the operation of Part 2, notably the Supreme Court's decision in Environmental Defence Society Incorporated v The New Zealand King Salmon Company Limited [2014] NZSC 38.

Streamlined Plan Processes and Standardised Plans

The introduction of standard planning templates for planning documents has long been signalled, and the Minister has clarified that councils will be required to use these templates but will have discretion to choose from a range of templates to apply to different areas.

The nature and content of the templates remains to be seen. The 2013 discussion document proposed that a standard template be developed for a single plan which integrates district and regional level documents. The national template is likely to include both standardised terms and definitions and may also include content for specific standardised zones and rules for particular activities.

Questions remain as to the form and status of the templates, the timing of their introduction, and time allowances for plan development. The stated expectation in the 2013 discussion document was for councils to develop a single plan using the national template within five years, including the time taken to develop the template.

The Minister also signalled the plan making process in Schedule 1 will be simplified, but did not provide details. In addition, councils are to have available alternative plan making processes to the Schedule 1 process. Yes that is plural!

Again he didn't elaborate, but remarks made in the speech about the over-proliferation of plans suggest that the joint planning process outlined in the 2013 discussion document may remain part of the reforms. If pursued it would provide an alternative process for the preparation of single combined planning documents (i.e. including both regional and district components), possibly by using independent hearing panels, and with appeals to the Environment Court limited to where the Council deviates from the panel recommendations. Aucklanders should be familiar with this process as a similar model is being used for the Auckland Unitary Plan.

Another option, which is consistent with the Government's willingness to direct planning processes (as it has done through special legislation for Environment Canterbury, Auckland Council and Special Housing Areas) and with the tenor of the Minister's speech, is for an increased role for central government in the plan making process. For example, through a bolstering of the Minister's power to direct a plan change under section 25A of the RMA or the discretion to direct alternative processes be used.

An option proposed in the 2013 discussion document was for a stepped process which allows the Minister to direct plan changes provided criteria in the RMA are met. This power would allow the Minister to:

  • identify issues or outcomes to be addressed in plans;
  • direct the plan change, including the ability to specify the matters the authority must consider and/or outcomes to be achieved; and
  • directly amend an existing operative plan if one or both of the above steps were not adequately addressed by the authority.

The Minister also signalled a re-design of the paper based planning and consultation systems for the internet age.

Increasing Collaboration

The Minister has identified a need to re-engineer the RMA away from litigation towards collaboration. The proposal outlined in the 2013 discussion document combines greater up-front collaborative processes, and limited appeal rights on council decisions. The Auckland Unitary Plan process may provide the model, but is seems apparent that councils will retain discretion to choose the alternative collaborative process, with the limited appeals rights providing a potential incentive.

In addition the Minister signalled strengthened provisions to require parties to undertake alternative dispute resolution.

Greater Recognition Of Property Rights

The Minister considers property owners need "stronger protection from unnecessary bureaucratic meddling", and has indicated the reforms will include more explicit recognition of property rights. He states:

There always has to be a balance between the rights of a person to use their own land and the wider community interests, but the pendulum has swung too far. We are looking at amendments that limit the degree to which council officials can meddle in people's lives. We also want greater discretion for councils to waive the need for resource consents where the wider environmental effects are negligible.

To achieve this the Minister proposes council discretion to approve or exempt minor/technical rule breaches. More detail on this is found in the 2013 discussion document, which indicates the breach must be minor or very minor, and councils must have access to the information needed to make a quick decision. No detail has been provided on thresholds and whether they will be in the RMA itself or prescribed in regulations.

However, the emphasis the Minister has placed on property rights suggests the changes may go further, with a possible area of consideration being a change to the current presumption against compensation for the imposition of planning controls - a position advocated by the ACT Party, Federated Farmers and Business NZ.

Stronger National Consistency And Direction

The Minister has indicated a strengthening of national direction. He proposes to achieve this by enabling the promulgation of National Environmental Standards or regulations under the RMA after a single round of national consultation, and for these instruments to have the power to be implemented immediately and impose an instant fine regime. By way of example, he plans to have such a regulation in place by July 2017 to ban dairy cows from streams and rivers.

Streamlined consenting

A notable omission from the speech was any direct mention of streamlined consenting. However given the broad political support for simplifying the consent process, and the streamlining done to date (for example the 6 month consent and nationally significant proposal processes), the '10 day consents' pathway for non-contentious consents appears to be a natural fit which we expect to remain part of the reforms.

Again using the 2013 discussion document as a guide, this would require consent authorities to process straight-forward consents within 10 working days where criteria prescribed in the RMA are met. The prescribed criteria will be an area of keen interest for councils and may include the following:

  • Non-notified controlled and restricted-discretionary activities which have few breaches;
  • Clear and complete application;
  • Necessary written approvals lodged with the application; and
  • Pre-lodgement agreement between applicant and Council that the application meets all criteria in the RMA, regulations, and plans.

Other potential changes not mentioned by the Minister include changing consent appeals from de novo to Environment Court appeal by way of rehearing, specifying some applications to be non-notified, limiting the scope of consent conditions, fixed council consent fees and provision of estimates for additional charges, and memorandum accounts. We will await with interest to see whether any of these proposals are included in the reforms.

Timing

So when will all this happen? The Minister's target is to have a Bill drafted and introduced in the first half of 2015, with referral to a Select Committee later in the year and passage into law by the end of 2015. With the extent of the changes, this timeline suggests that policy development and drafting processes are ongoing. Given this, the passing of a Bill this year appears typically ambitious from Minister Smith.

Watch this space for further information and commentary as the RMA reform process unfolds.

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