New directions for resource management in New Zealand: Report of the Resource Management Review Panel: Summary and key recommendations

The Resource Management Review Panel was appointed by the Minister for the Environment, the Hon David Parker, to undertake a comprehensive review of the resource management system in New Zealand. The main focus was the Resource Management Act (the RMA) but we were also asked to review the relationship between the RMA, the Local Government Act (LGA), the Land Transport Management Act (LTMA) and the Climate Change Response Act (CCRA).

The specific aim of the review under our terms of reference was to improve environmental outcomes and better enable urban and other development within environmental limits.

This summary outlines the principal reasons which led to the review and the main recommendations in our report. The more detailed recommendations follow this summary but the report itself should be read for a full understanding

The key concerns prompting the review include:

• New Zealand’s natural environment is under significant pressure: the way we use land and
  water has proved to be unsustainable for the natural environment. The quality of our
  freshwater, coastal and marine environments is in serious decline, and biodiversity is under
  significant threat.
• Urban areas are struggling to keep pace with population growth: poorly managed urban
  growth has led to increasing difficulty in providing affordable housing, worsening traffic
  congestion, greater pollution, and reduced productivity.
• An urgent need to reduce carbon emissions and adapt to climate change: the impacts of
  climate change are already affecting where people live and how we use our environment. Our
  land and resource use patterns need to change to mitigate and adapt to the effects of
  climate change and we need a resource management system that supports New Zealand’s
  commitments to reduce greenhouse gas emissions.
• The need to ensure that Māori have an effective role in the system, consistent with the
  principles of Te Tiriti o Waitangi: when it was enacted, the RMA was a significant step
  forward for Māori, offering opportunities for shared management of the environment.
  However, it has failed to live up to its promise, leaving Māori out of critical decision-making.
• The need to improve system efficiency and effectiveness: significant criticisms of the RMA
  have been its increasing complexity, cost and delay caused by its processes, uncertainty, and
  lack of responsiveness to changing circumstances and demands.

When the RMA was introduced in 1991 it contained a number of valuable principles which it is important to retain. One of these was the principle of sustainability to ensure the needs of future generations are taken into account. However, in the ensuing period of nearly 30 years, the RMA has been subjected to numerous amendments designed to improve its effectiveness but which have instead resulted in a doubling of its original length and an unduly complex patchwork of provisions.

Rather than attempt to amend the RMA, the Panel has concluded that the Act should be repealed and replaced with new legislation which we propose be named the Natural and Built Environments Act (NBEA). This would have a substantially different approach from the RMA but would also incorporate some of the key principles of the previous legislation which remain appropriate. The aim of the NBEA would be to establish more enduring solutions and bring to an end the series of ad hoc interventions that have been an undesirable feature of legislative change to date.

The Panel has also recommended a new separate piece of legislation which we have called the Strategic Planning Act. The purpose of the Strategic Planning Act would be to set long-term strategic goals and facilitate the integration of legislative functions across the resource management system. These would include functions exercised under the NBEA, the LGA, the LTMA and the CCRA to enable land and resource planning to be better integrated with the provision of infrastructure as well as associated funding and investment. Our consultation found strong support for greater use of spatial planning to identify areas suitable for development as well as areas or features it is important to protect. Spatial strategies developed at regional level, encompassing land and the coastal marine area, would play a critical part in delivering the outcomes intended for the resource management system.

The preparation and approval of spatial strategies under this new legislation would be the responsibility of a joint committee comprising representatives of central and local government as well as mana whenua.

We expect this new approach to result in stronger coordination between these parties in developing long-term strategic planning for both the natural and built environments, with closer links between land and resource planning and associated funding and investment.

One criticism of the purpose of the RMA has been its focus on managing the adverse effects of activities on the environment rather than promoting more positive outcomes. The Panel proposes a new purpose for the NBEA: enhancing the quality of the environment to support the wellbeing of present and future generations. That purpose will be achieved by promoting positive outcomes for both the natural and built environments, ensuring that use, development and protection of resources only occurs within prescribed environmental limits and that the adverse effects of activities on the environment are avoided, remedied or mitigated.

A further purpose of the NBEA would be to recognise the concept of Te Mana o te Taiao which is an expression of the importance of maintaining the health of air, water, soil and ecosystems and their capacity to sustain life. A similar concept is already incorporated in section 5(2)(b) of the RMA.

The concept of wellbeing has long been embedded in planning legislation and is also a feature of other legislation including the LGA. In the new legislation it would continue to be widely defined to include social, economic, environmental and cultural wellbeing as well as health and safety. The environment would also be broadly defined to include the natural and built environments, whether in rural or urban areas.

In brief, the revised purpose and principles would establish a system designed to deliver specified positive outcomes for both the natural and built environments. The use and development of resources would be enabled so long as this can be achieved sustainably and within prescribed minimum limits to protect natural resources such as water, air, soils and natural habitats. The new legislation would also require the setting of targets to achieve ongoing improvement of the quality of both the natural and built environments.

Protecting and enhancing the natural environment

The revised purpose and principles under the NBEA now recognise an expanded range of outcomes that are to be provided for in respect of both the natural and built environments. Those relating to the natural environment include many of the features recognised under the RMA such as the protection of the coastal environment, wetlands, lakes and rivers, outstanding natural landscapes, improving the health of ecosystems and avoiding further loss of biological diversity. To improve certainty, the new Act requires the Minister to identify through national direction natural features that are of national significance. Regional councils would identify features that are of regional significance.

In addition, we have proposed the setting of mandatory environmental limits (sometimes referred to as bottom lines) for biophysical aspects of the environment including freshwater, coastal water, air, soil and habitats for indigenous species.

We expect the changes we propose in the NBEA will provide a greater level of protection for features of the natural environment which we know are highly valued by New Zealanders and, over time, for the restoration of resources such as our waterways which have become degraded.

Managing urban growth

Another criticism of the RMA has been the lack of provision for managing urban growth. This has become particularly urgent in larger urban areas experiencing substantial increases in population but insufficient capacity to accommodate growth. The Panel proposes this be addressed in several ways. The revised purpose and principles of the NBEA will provide for specific outcomes for the built environment, including the availability of development capacity for housing and business purposes to meet expected demands, and the strategic integration of infrastructure with land use.

These outcomes would be supported by the use of national policy statements such as those currently in use, the greater use of economic instruments and, importantly, by the Strategic Planning Act we propose. We expect that spatial strategies prepared on a regional basis under the Strategic Planning Act would identify areas suitable for urban growth (as well as areas not suitable for development) and would also facilitate the provision of infrastructure necessary to support growth. Effective ways to achieve this integration have been a missing element of the resource management system to date.

The new purpose and principles under the NBEA would further improve certainty in the resource management system by requiring the resolution of any potential conflicts between the identified outcomes through national direction by the Minister for the Environment or in the combined plans we propose at local government level.

The need to address the effects of climate change has been a particular focus of the Panel’s work. The Panel has concluded that the resource management system should complement the CCRA and the emissions trading scheme to help New Zealand achieve the agreed targets for reduction of greenhouse gas emissions. As well, the resource management system needs to enable adaptation to the impacts of climate change and reduction of risk from natural hazards.

The Panel has recommended these issues be addressed in a number of ways, including by providing outcomes in the purpose and principles of the NBEA designed to reduce risks from natural hazards, improve resilience, reduce greenhouse gas emissions, promote activities that mitigate emissions or sequestrate carbon and to increase the use of renewable energy. This would be supported by mandatory national direction and through combined plans at local government level. We also expect the regional spatial strategies developed under the proposed Strategic Planning Act will be an important means of identifying areas at risk of inundation as well as climate change mitigation measures consistent with the CCRA.

Finally, we propose a new discrete piece of legislation which we have called the Managed Retreat and Climate Change Adaptation Act. This would establish an adaptation fund to enable central and local government to support necessary steps to address the effects of climate change and would also deal with the many complex legal and technical issues involved in the process of managed retreat.

We expect these recommendations to result in a much improved and better coordinated response to these challenges.

Improving engagement with Māori

Our consultation processes have highlighted the need for a significantly greater role for Māori in the resource management system.

In the revised purpose and principles for the NBEA we have recommended that those involved in the administration of the legislation should give effect to the principles of Te Tiriti o Waitangi rather than taking them into account as currently provided in the RMA. To provide clarity about what this means in the context of the NBEA, the Panel has recommended that the Minister for the Environment be required to give national direction on how the principles of Te Tiriti will be given effect through functions and powers exercised under the NBEA.

The Panel is also recommending that mana whenua should participate in decision-making for the proposed regional spatial strategies and in the making of combined plans at local government level. These are important changes that will give Māori an effective role in decision-making on resource management issues at a strategic level.

The Panel has also recommended the creation of a National Māori Advisory Board to advise central and local government on resource management from the perspective of mana whenua and an integrated partnership process between mana whenua and local government to address resource management issues at local government level.

We expect the combination of these provisions to provide a significant and effective role for Māori in the resource management system.

In our report we have highlighted deficiencies in the resource management system, including undue complexity and inefficient processes leading to unnecessary expense and delay. We have also commented on the provisions of the RMA tending to favour the status quo and which hinder the ability of the system to respond to change.

To address these issues, we have proposed:

• greater use of mandatory national direction by the Minister for the Environment to guide planning at local government level
• the use of combined plans which would bring together the plans prepared by regional councils and territorial authorities in each region
• a more streamlined process for the preparation and change of plans
• a much greater focus on the quality of plans which is expected to provide clearer guidance and a reduction in the time and effort spent on individual resource consent processes
• providing greater clarity about notification of resource consent applications
• an alternative process to deal with resource consents raising localised issues such as boundary issues between neighbours
• an improved ability to have more serious disputes over consents referred directly to the Environment Court
• improvements in the designation process including extending the default lapse period to better protect opportunities for the provision of public infrastructure
• a wider range of mechanisms guided by specified principles to allocate resources such as freshwater and the use of coastal space
• more focus on the use of economic instruments to complement regulatory land use controls
• enhancing the ability of regional councils to modify or extinguish resource consents for natural resources such as discharges into freshwater where environmental limits are threatened
• giving territorial authorities the ability to change land use consents in narrowly defined circumstances, such as where necessary to implement a managed retreat process as part of adapting to climate change
• improving enforcement under the resource management system, including the use of regional hubs to coordinate enforcement effort in each region and introducing stronger penalties for offences
• improving monitoring and oversight of the resource management system, including through a new national environmental monitoring system and an enhanced audit and reporting function for the Parliamentary Commissioner for the Environment.

Perhaps the greatest single process change is our proposal for mandatory combined plans in each region. At present there are well in excess of 100 policy statements and plans in existence throughout the country. Under our proposal for combined plans, the number of plans would reduce to just 14. Preparation of these combined plans would be undertaken by a joint committee comprising representatives of the regional council, the constituent territorial authorities in the region along with representatives of mana whenua. The Ministry for the Environment would have an auditing role to ensure quality and consistency.

An independent panel, chaired by a sitting Environment Judge, would hear submissions, review the combined plan and make recommendations on its provisions. Decisions would then be made by the joint committee, and a streamlined appeal process would follow based on the model recently used for the Auckland Unitary Plan.

Our proposals for plan making are expected to have significant beneficial results:

• a simplified and more efficient process
• better quality plans
• the resolution of uncertainty arising from overlapping functions of regional councils and territorial authorities
• greater clarity in plans including by minimising potential conflicts between the outcomes specified in the purpose and principles of the NBEA
• fewer resource consent applications as a result of clearer guidance in plans.

Cabinet is responsible for making all decisions about how to progress our report and recommendations. Cabinet has indicated that a broad, open process of public consultation will follow its consideration of our proposals. Wide engagement with New Zealanders and stakeholders is anticipated for the introduction of any new legislation.

• Hon Tony Randerson QC, Chair
• Rachel Brooking
• Dean Kimpton
• Amelia Linzey
• Raewyn Peart MNZM
• Kevin Prime ONZM