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Brief Counsel

Phase Two RMA reforms – bigger than Ben Hur?

14 December 2011

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The Phase One reforms to the Resource Management Act (RMA) in the Government’s first term were substantial but Phase Two, scheduled for next year, promises to be bigger.  

This Brief Counsel looks at the likely shape of the reform programme.

The RMA’s principles

Previous reform rounds have occasionally dabbled with the RMA’s principles but have left them largely untouched.   We expect that is about to change.

The Act’s “sustainable management” purpose is still out-of-bounds.  But the “RMA Principles” Technical Advisory Group (TAG) has been directed to consider how sections 6 and 7 of the Act can be adapted to improve management of the urban environment, infrastructure planning and the natural hazard issues arising from the Canterbury earthquakes.

The “protection” principles in sections 6 and 7 – relating to such things as outstanding landscapes and natural character, access to the coast, historic heritage and Māori cultural associations – have been a source of considerable debate and contest over the 20-year history of the RMA. 

We expect sections 6 and 7 will be significantly refined, and re-focussed.  The identified lack of recognition for urban environment priorities and infrastructure is likely to be addressed.   The plethora of items listed is likely to be culled.  Provisions which have been a significant source of litigation are likely to be evaluated for whether they are truly delivering value. 

The outcome could be to align Part Two much more to New Zealand’s current and emerging environmental priorities across the three arms of the RMA triangle - use, development and protection.

Unitary plans

National’s post-election deal with ACT includes commitments to reduce the “clutter” of planning documents and to simplify the planning process by legislating to ensure that there is only one plan – a “unitary” plan – for each district.

But it is hard to see how this can be achieved without radical change to the shape of local government because, if it is to be a voluntary option only, the level of uptake may be small. 

The single Auckland Council was achieved only with central government intervention and other examples of intra-council co-ordination are thin on the ground.  There is the Wairarapa Combined District Plan, the Manawatu One Plan, the Greater Christchurch Urban Development Strategy involving the Canterbury Regional Council, the territorial authorities and the New Zealand Transport Agency, and a similar initiative in the Bay of Plenty – but that is about it. 

Generally the record shows that, without a strong push from central government, parochialism will trump co-operation almost every time. 

The local government policy National took into the elections contained a commitment to promote greater collaboration between local councils within a region through regular Mayoral and Chief Executive Forums and to secure more efficient service delivery through shared services and regional infrastructure investment. 

The fact that Nick Smith has now picked up Local Government to go with his Environment portfolio will strengthen his ability to promote structural reform.  Smith has long favoured unitary councils over the district/regional hierarchy we now have.  It’s also interesting that the emergence of the Auckland Council has created stirrings in other regions toward a similar model – most notably Wellington, although this is still in the very early stages.

RMA planning processes

The Auckland Council spatial plan, the Environment Canterbury transition reforms, and the CERA earthquake recovery strategy point to the likely direction of future RMA planning reforms, at least for our urban centres.  All involve a far more collaborative strategic approach, including central and local government coordination in leadership, and much less scope for rounds of hearings and appeals. 

Related to that, we expect the Phase Two reforms will once again tackle the issue of the nature and scope of appeals on regional and district plans. 

Planning process reforms were a major part of the Phase One reform agenda, but the most significant changes were knocked back by the Select Committee.  That was for good reason.  The intended removal or narrowing of Environment Court appeal rights across the board was not properly thought through.  Given the impact plans can have on access to public resources and on property rights, there is a need for some assurance of quality in hearings processes. 

But the national significance “Board of Inquiry” model, providing for a single quality-assured hearing track, has in at least in one case so far, enabled a plan change to be accomplished within months, rather than years.  The Waitaki Water Allocation Plan hearing of several years ago took a similar approach and also delivered an operative plan within a relatively short time.  These are possible pointers to what we might see in the shape of things to come. 

Officials will report to the Government on policy options for the Phase Two amendments in March with legislation due in the House by July.

Six-month timeframe for “regional-sized projects”

A six-month statutory time limit will be imposed on the consenting of notified medium-sized projects such as new industrial developments, new subdivisions, new retail developments and new regional infrastructure.  Around 1600 such consents are processed each year.

This Bill will be introduced in March.

Chapman Tripp comment

Also on the Government’s ‘to do’ list in what is shaping up to be a very busy term on the resource management front are the water reforms and the new consenting regime for off-shore oil and gas and minerals exploration.

Changes to RMA infrastructure provisions, including the opening up of designation powers to electricity generation projects, and Public Works Act reforms to assist in the urban renewal and strategic urban planning are also likely to come through.

For further information, please contact the lawyers featured.

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