In one of the largest regulatory shake-ups in New Zealand history, our tired and failing master act for the environment is being replaced with three new ones. Jamie Morton explains what’s just been announced.
Our notoriously unwieldy Resource Management Act (RMA) has governed what can be built where in New Zealand for three decades.
First introduced by its architect, former prime minister Sir Geoffrey Palmer, the RMA was ground-breaking at the time of its 1991 inception, offering a much-needed linchpin between environment and economy.
Over time, however, it's become cumbersome, monolithic and misaligned with the myriad laws it intersects.
As developers and council planners have learned too well, it's often made simple projects needlessly too complex, costly and litigious.
That our country is now much more urbanised than it was 30 years ago – and with centres like Auckland, Tauranga and Hamilton straining with booming population growth, clogged highways and painfully-high house prices – a makeover couldn't be more overdue.
All of these headaches were catalogued by a panel chaired by retired Court of Appeal Judge Tony Randerson QC, which in 2020 recommended binning the RMA and creating three new acts.
Since then, policy-makers have been busy turning those recommendations into the shiny new bills the Government's set out today, with plans to pass all three before the next election.
In three words, the Government sums up its new system as "better, faster, cheaper".
We'll soon have purpose-built acts for spatial planning, building in our environment and adapting to the myriad issues that worsening climate impacts will bring.
Today, we got to see the guts of what will be the Natural and Built Environments Act (NBA) - the RMA's principle replacement – along with the Spatial Planning Act (SPA), while detail around the Climate Change Adaptation Act will come later.
Between all of these reforms, touted to save RMA users nearly $150m a year in costs, the number of planning documents used by councils will be squashed from 100 down to just 15.
The NBA comes with a new national planning framework to provide consistent policy, targets and bottom lines across the country.
But it’ll also mean each region must develop their own plans, through new regional planning committees comprised of local government and at least two hapu and iwi representatives.
As with the RMA, resource consents will stay the main way councils assess and approve land use activities, but it's expected the new plans will allow more to be done without consents, if it's within environmental limits.
Generally, future consents will be focused on riskier activities, or those with potential to do much environmental damage.
Some applications – particularly nationally-significant ones, or those likely to face high numbers of appeals - will also be eligible to be processed under alternative consenting pathways, such as through a board of inquiry.
Sitting alongside the NBA, the SPA will offer a separate strategic framework for environmental management and regional development, looking out 30 to 100 years into the future.
It'll also help anchor the NBA to other existing laws like the local government and land transport acts.
Whether the Government actually achieved its objectives of a "faster, cheaper and better" system would all depend on how it was rolled out, said Grace Hall of councils lobby Local Government NZ.
"We would like to see more clarity around the transition and when that will happen," she said.
"This would inform how councils should plan during the transition period, and how both transition and implementation will be resourced."
While there's no silver bullet to solve the housing crisis, the Government says the reforms should help slash consenting times and enable more affordable homes to be built.
It expects that its regional spatial planning approach will help pin-point local long-term infrastructure and housing needs in different places, while recently-introduced fast-track pathways will stay in place.
These pathways had already been shown to knock 15 months off consenting times, while enabling more medium and high-density housing in under-pressure places like Auckland, Christchurch and Queenstown.
The Government also anticipates that a new designations process – coming with a two-stage process for notices of requirement – should prove more flexible and available to more infrastructure providers.
Off-the-shelf standards for housing and infrastructure projects would also remove the need for bespoke specifications for each project, making future Transmission Gully-type projects easier and cheaper to consent, Environment Minister David Parker said.
Plans under the RMA have notably been too restrictive for developers, as well as costly: council fees soared by 66 and 124 per cent respectively for non-notified and notified consents between 2014 and 2019.
Infracom also estimates that about five per cent of infrastructure developers' project costs – or the collective equivalent of nearly $1.3b annually – was being poured into resource consents.
All the while, preserving "amenity" has been used as an excuse for NIMBYism, driving up urban land prices and helping make Kiwi homes some of the least affordable in the OECD.
Parker said amenity values had "been the crutch on which a lot of NIMBY-ism has rested"
"We have taken it out of the higher national direction part of the act."
This particular change was adopted from the housing accord Labour reached with National last year, leading to legislation to significantly increase urban density in cities.
Housing Minister Megan Woods said the legislation would include "the ability to protect heritage, but it can't be whole suburbs or whole streets".
"It's not saying that every piece of heritage in New Zealand is on the block."
The NBA set a clear expectation that regional plans should provide for housing supply that was substantially above anticipated demand, not unduly constrained by restrictions that led to inflated land prices, and opened up more choices for housing.
"Estimates suggest the new system will provide annual benefits from increased housing affordability of $146 million under a conservative scenario to $834.3 million," Woods said.
The Property Council New Zealand has welcomed the shake-up, but was nevertheless unimpressed at a lack of detail in today's proposals.
"Today's announcement is merely a foundation for building a system that may or may not stack up," said the developers' lobby's chief executive, Leonie Freeman.
"Without context and the input of those who actively use the system on a daily basis, it is very difficult to foresee how the proposed Acts might work cohesively together.
"We have dubbed it the Wasgij of planning systems; we have several pieces of the puzzle but no idea what the picture on the front of the box might look like once configured."
The NBA's national planning framework will also set environmental bottom lines – separate to those in National Policy Statements already guiding councils – that can't be breached.
These limits won't just apply to land, but also air, biodiversity, coastal and freshwater and native biodiversity – but not all will be in place when the new system takes effect.
Spatial plans will pin-point those spots to be ear-marked for protection and restoration, and people or companies applying for consents will still need to demonstrate positive outcomes for nature.
Parker said the most significant change to environment protection would be a shift from an effects-based approach to one based on outcomes.
"Put simply, an effects-based approach often saw many small adverse effects accumulate into significant environmental degradation – most notably with water quality and loss of biodiversity," he said.
"The NBA will focus on outcomes, setting limits to maintain current environmental levels and targets where degradation need to be restored."
At the system's core is Te Oranga o te Taiao, a concept recognising the relationship between environmental health and its capacity to sustain life and the economy.
Environmental Defence Society president Gary Taylor saw plenty of positives in the reforms: namely the new limits and targets.
"That said, we think that changes are still needed through the parliamentary process to strengthen environmental protections in the bills."
Although "minimum targets" for improvement beyond the status quo were required, Taylor noted that relied upon the minister being satisfied that the status quo was an "unacceptable degrading" of the natural environment.
As well, he was worried the "outcomes" which needed to be achieved came with no heirachy or clear weighting, leaving much discretion to pick and choose development outcomes over core environmental protections.
The Climate Change Adaptation Act, meanwhile, will consider issues like land ownership, property rights, and acquisition and management; liability; and social and cultural ties to land.
That includes the vexed issue of managed retreat – where homeowners or whole communities need to move out of the way of rising seas or flood zones – and questions around funding and financing.
The overhauled system will be required to give effect to principles of Te Tiriti o Waitangi, in the same way our Conservation Act does, while honouring more than 70 treaty settlement arrangements the RMA dealt with.
Māori would be part of the decision-making process at national, regional and local level, while a new entity will be formed to monitor and ensure treaty principles are being followed.
"Treaty settlements over the past 40 years have shown the significant role Māori have across the Resource Management system and this Bill maintains that role," Associate Environment Minister Kiritapu Allan said.
"We know the current resource management system has not supported Māori housing and development opportunities and this Bill is an opportunity to turn that around."
Associate Professor Linda Te Aho, of Waikato University's Te Piringa law faculty, pointed out iwi leaders have raised concerns about whether these new approaches would be as strong as the status quo.
"There will need to be more engagement on these particular points."
Elsewhere, the NBA Bill proposes to set up a new Freshwater Working Group to provide recommendations on matters around freshwater allocation, as well as a new process for Crown and iwi and hapu to address that issue.
It's expected that water allocation will among the most contentious points of the reforms.
A frequent complaint made of the current water system – especially among Māori land users - was that the first-come approach has locked-out some people from making use of water resources.
It's also meant that some land has been unable to reach its productive potential because it couldn't be adequately irrigated.
National and Act, both of which have long backed serious reform in the environment and planning space, are underwhelmed with what Labour's brought to the table.
National's spokesperson Chris Bishop was sceptical about reforms' ability to ramp up house-building and address our infrastructure deficit, while pragmatically protecting the environment.
"The new bills will add yet more bureaucracy, add more complexity to the system, introduce significant legal uncertainty, and risk repeating the mistakes of the past," he said.
"More centralisation, bureaucracy and control is not the answer."
Act's David Seymour dismissed the NBA and SPA as a "retread" of the RMA.
"The reality of this reform is that a new and more centralised bureaucracy will write plans with different headings but the same basic content," he said.
"Little really changes from the point of a property owner."
Like Bishop, Seymour also a risk of carrying over the RMA's problems.
"It is not clear who has the right to do what on their land and who has the right to object," he said.
"That means projects will still be held up by years of hearings, appeals, consultants' reports, and iwi consultations."
The Green Party, meanwhile, had its own objections: namely that the reforms didn't go far enough to protect the environment.
"Business as usual is simply not an option. However, what the Government has come up with as a solution also falls short of what is required," spokesperson Eugenie Sage said.
"Instead of coming up with new laws that put nature and the climate at the heart of our planning and resource management system, the Government seems to have bought into the outdated idea that there is a trade-off between quality infrastructure and good environmental outcomes.
“This just isn’t true.”
It's understood a NZDF aircraft and multiple helicopters are involved.