By Paul Rogers, partner, Adderley Head.
The Resource Management Review Panel (Panel) chaired by Tony Randerson QC has released its report on resource management reform and it recommends significant and wide-ranging changes to our current resource management law and processes.
Before releasing its report, the panel received and considered submissions and consulted widely with a broad range of interested parties. The report is both a sizeable and comprehensive document.
In this short article we identify the Panel’s major recommendations for change.
Extensive and lengthy debate has occurred on identification of deficiencies in our current law and processes and whether the best option to remedy those deficiencies was to amend the Resource Management Act 1991 (RMA) or alternatively start afresh.
Many interested parties considered that the current system including the RMA is neither appropriately protecting the environment nor adequately providing for the needs of business and communities.
The Panel recommend repealing and replacing the RMA with three Acts. They are a Natural Built Environments Act, (NBEA) a Strategic Planning Act (SPA) and finally a Managed Retreat and Climate Change Adaptation Act (CCAA).
The NBEA would effectively replace the RMA. The purpose of the NBEA expressed by the Panel is to enhance the quality of the environment to support the well-being of both future and present generations.
Achieving that purpose will occur by promoting positive outcomes for both the natural and built environments ensuring that the use, development and protection of resources only occurs within prescribed limits. The approach of avoiding, remedying or mitigating adverse effects of activities on the environment is recommended to be retained.
The Panel found an issue with the RMA was its focus on managing and adverse effects. The Panel considered this focus resulted in insufficient consideration being given on achieving positive outcomes. The Panel recommended a shift toward a strong focus on achieving positive outcomes.
The Panel report discusses and considers in-depth how the RMA and its processes have not appropriately reflected the constitutional significance of the Treaty of Waitangi. The Panel recommends incorporating the overarching concept of Te Mana O Te Taiao (Aotearoa New Zealand Biodiversity Strategy 2020) as an expression of the fundamental importance of natural resources such as air, water and soil and sustaining life.
The Panel recommends decision-makers be required to give effect to the ‘principles’ of the Treaty, which is a significant change from the RMA which requires the principles of the Treaty to be taken into account by all persons exercising functions and powers under the RMA.
Complementing this recommendation relating to the Treaty, the Panel also recommend the establishment of a National Maori Advisory Board charged with monitoring the performance of both central and local government in giving effect to the Treaty and providing for integrated partnership processes between mana whenua and councils.
A very significant recommendation from the Panel is that regional and district plans should be combined and replaced with a single plan for each region described as a combined plan. The Auckland Unitary Plan perhaps provides a working example of such a plan.
The Panel considered that the number of planning documents currently in play make the planning system and process complex. At times inconsistency between plans is also an issue. The Panel considered reducing the number of planning documents to 14 from the more than 100 that exist now would be a beneficial change.
As well as reducing the number of plans the Panel recommend streamlining the plan preparation and change processes. The panel promotes the approach of establishing a joint committee which would have the authority to prepare and notify a combined plan. A combined plan would be a combination of a regional and district plan. The joint committee would comprise representatives of central government, the regional council, all constituent territorial authorities in the region, mana whenua and a representative of the Minister of Conservation.
Mandatory environmental limits
The absence of environmental bottom lines within the RMA and its processes has been a common criticism. In response the Panel recommends the NBEA includes mandatory environmental limits for the biophysical aspects of the environment including freshwater, coastal water, air, soil and habitats for indigenous species. Making provision for mandatory national direction to guide how these matters must be in reflected in plans utilising targets was also recommended.
The Panel, recognising the needs of businesses and communities, recommended the NBEA focus also on outcomes for the built environment as well as the natural environment. For the built environment the Panel recommended provisions be included to ensure that there is sufficient development capacity for both housing and business land.
A greater emphasis on dealing with the effects of ‘climate change’ according to the Panel should also be included as part of the NBEA. The Panel recommended a focus to reduce greenhouse gas emissions rather than focusing only on natural hazards that result from climate change.
The recommended SPA seeks to address a shortcoming the Panel identified by providing and setting long-term strategic goals including the facilitation and integration of functions across resource management systems and processes. This integration seeks to better connect planning legislation with other legislation namely the Local Government Act 2002, Land Transport Management Act 2003 and the Climate Change Response Act 2002.
The Panel recommended that committees comprising representatives of central government, regional councils, territorial authorities in the relevant region, mana whenua and an independent chair be appointed to prepare the regional spatial strategies required by the SPA.
The proposed CCAA seeks to address the effects of climate change including the establishment of an adaptation fund to respond to climate change effects. The Panel recommends that the CCAA and the NBEA synchronise with the objective of a managed transition over time to a low carbon economy. In addition, providing adaptation funding and implementation under the CCAA address the challenges providing for the consequences of climate change.
Summary of major recommendations
The panel’s proposals for change, while far reaching, recognise and provide for many of the RMA ’is well supported and accepted planning approaches. Rather than completely start afresh, the Panel builds on the best of our planning processes while at the same time identifying and making recommendations to deal with deficiencies.
The next steps
The release of the Panel’s report is a significant step in the reform process. However, until the elections occurs little real action will take place.
However, the election is timely as elections provide opportunity for discussion and debate around any differing positions adopted by the political parties on planning reform.
Once the business of government returns to normal, assuming no further consultation, then following the elections work will be needed to draw up a draft reform bill or bills for a first reading in parliament. As we know the work to express the Panel’s recommendations into a bill to present to parliament will take some months.
Following usual public consultation process, the bill would then be referred to a select committee for receipt and consideration of submissions from the public. That process can take a number of months particularly for legislation that will have wide-ranging effects. We can anticipate there will be a significant number of submissions, resulting in the select committee timeframes being reasonably lengthy.
Following the select committee hearings and report to parliament the second and third reading follow. The parliamentary process provides opportunity for amendments to the bill.
Even if the panel’s recommendations are enacted into law unchanged and even accepting some fast tracking it will take time for the new law to be implemented. Still all good things take time.
Disclaimer: This is a brief summary for information purposes only and is not legal advice.