Resource management reform - Phases 2 and 3

These follow from the Government’s Phase 1 repeal of both the Natural and Built Environment Act 2023 and Spatial Planning Act 2023 completed in December 2023.

Phase 2

RMA Amendment Bill 2

The Government proposes to make focused changes to address key Government priorities with its soon-to-be introduced RMA Amendment Bill 2. These key priorities are:

doubling available renewable energy;
enabling the delivery of high-quality infrastructure;
unlocking development capacity for housing; and
enabling primary sector growth and development.

Scope


Reduce delays and improve efficiency in consenting	Improve certainty and simplify designation process	Extending certain coastal permit durations for port companies	Enable housing growth

Amend interface between RMA and Fisheries Act	Better outcomes for heritage buildings	Improving system effectiveness	Improving natural hazard and emergency provisions

Key proposals – highlights

National planning documents/ regulations / ministerial intervention National planning documents including National Policy Statements (NPSs) and National Environment Standards (NESs) are proposed to be amended including the following changes:
	Enabling cost recovery for councils for nationally directed consent reviews. NPSs to include direction on their own implementation (i.e. which planning processes to use). Ministerial power to direct councils to change documents required by national planning documents. Ministerial power to direct councils to use a specific plan change process to address non-compliance with national planning documents. New Emergency Response regulation making powers if there is a declaration under Civil Defence Emergency Management - valid for three years. Provisions to allow for more recognition of industry organisations in delivering Fresh Water - Farm Plan certification and audit services. New regulation making power to add to the list of Long-lived Infrastructure activities.
Planning and consenting Amendments proposed to planning and consenting processes include:
	Removing the Minister from decision making under the Streamlined Planning Process and limiting appeal rights – can only allow appeals where Independent Hearings Panel recommendations are rejected by a council – no Supreme Court appeals. Tier 1 Councils (e.g, councils in Auckland, Wellington and Christchurch) can opt-out from implementing the Medium Density Residential Standards, which are standards that allow up to three homes with a maximum of three storeys to be developed on a property without resource consent. Amendments to the discharge rules under s 70 of the RMA to align with changes to s 107 through RM Bill 1, that allowed a council to grant a discharge permit or coastal permit even where there are significant adverse effects on aquatic life (provided they can impose conditions to reduce the effects). One-year consenting (with exceptions) for renewable energy and wood processing consents. MfE has indicated that it intends to specify that a consent application has to be processed in one year (unless the applicant requests a longer period). No additional penalties are likely if this one-year period is not achieved. Amendments to streamline resource consent decision-making processes, including proportionality considerations for further information requests and hearing decisions. Ability for councils to return abandoned applications. Formalisation of requests to review draft conditions. 35-year default duration for Long-lived Infrastructure and renewable energy (with some exceptions). Lapse period increases to 10 years for renewable energy (with exceptions). Councils can decline land use consents if there is significant natural hazards risk.
Interface with the RMA The Government has proposed amendments to the RMA in relation to the interface between the RMA and other regimes, specifically in relation to fisheries and heritage:
	Fisheries Act 1996 – clarify and constrain the extent to which councils can control fishing for biodiversity purposes under the RMA. Heritage – clearer direction to councils on the listing/delisting of heritage building and structures.
System improvements and designations MfE has also indicated that amendments will be made to the RMA to improve existing systems. Amendments will also be made to the provisions relating to designations under the RMA. Examples include:
	Adopting compliance measures which were provided for in the Natural and Built Environment Act 2023: increased penalties; amendments to access to jury trials; and better enabling cost recovery. Enabling regulators to consider a person’s compliance history for resource management authorisation decisions. Increasing default lapse period for designations (no specific timeframe was provided). Considering application of consideration of alternatives test, including by aligning the alternatives assessment with resource consent applications where a requiring authority owns the land subject to the Notice of Requirement.

Process for RM Bill 2

National Planning Documents

Based on the update from MfE, we are likely to see six to seven new national planning documents (NPSs or NESs) developed and 14 existing instruments amended, with targeted amendments to national planning documents through four packages:


Infrastructure and energy	Housing	Farming and primary sector	Emergencies and natural hazards

Below is a summary of the scope of the changes to national planning documents that the Government intends to make, as indicated by MfE. As MfE is currently in the policy development phase of this reform, we do not yet have clarity as to the exact nature of the amendments proposed.

Infrastructure and Energy

	Amendments to the NES-Telecommunications Facilities.
	New national direction to enable energy and infrastructure projects, including a new NPS-Infrastructure and subsequent standards for different types of energy generation and infrastructure.
	Amendments to the NPSs for Renewable Electricity Generation and Electricity Transmission so that they are more directive and enabling of renewable electricity and transmission.
	Amendments to the New Zealand Coastal Policy Statement.

Housing

New national planning documents for:

granny flats;
papakāinga; and
heritage.

Farming and Primary Sector

This will see a wide sweep of changes to NPSs and NESs relating to freshwater, indigenous biodiversity, commercial forestry, drinking water, and marine aquaculture, as well as stock exclusion regulations.

Emergencies and Natural Hazards

New national planning documents for natural hazards management.

Process for national planning documents

MfE has indicated that the national direction work programme will follow the process outlined in the figure below.

MfE officials explained that they are aware of the practicalities of achieving consistency between national planning documents and are hopeful that input through consultation will assist with achieving integrated national direction.

Phase 3

Cabinet has released 10 principles that will guide the development of proposals for Phase 3 of the reform which focusses on a top-down approach to the resource management system. The principles are covered in our earlier article here.

Cabinet considers its guiding principle for resource management reform to be the enjoyment of property rights which is consistent with its principle to narrow the scope of the resource management system and the effects it controls. Based on the recently released Cabinet Paper ‘Replacing the Resource Management Act 1991’, we are likely to see the establishment of two Acts, one to manage environmental effects arising from activities and another to enable urban development and infrastructure.

Process for Phase 3

Conclusion

MfE officials have made it clear that the Ministry is still very much in the developmental stage of much of Phases 2 and 3 of the Government’s proposed resource management reform. With a focus on individual property rights, the narrowing of the scope of the resource management system and the effects it controls, and increased direction from national policy statements, the Government seeks to centralise much of New Zealand’s environmental decision-making.

If you have any questions about the matters raised in this article, please get in touch with the contacts listed or your usual Bell Gully adviser.

Disclaimer: 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.