The new Resource Management legislation unveiled yesterday is probably the most fundamental and complex legislative reform put before Parliament in decades.
The new Acts — and there will be three of them — will not be in place until the end of 2022.
There will be a Natural and Built Environments Act which will be the core of the new system and which will be what guides the administration of planning consents.
There will be a Spatial Planning Act which will provide for regional planning for things like transport, services infrastructure and bigger issues like population and demographic change.
And the third Bill will be Climate Change Adaptation Act which will deal with planning for and the legal consequences of the effects of climate change.
Environment Minister Parker will redefine what the purpose of planning is; he will give substantially more power to Maori but smaller local authorities stand to lose out as he shrinks the number of local authority plans from over 100 to 14 by forcing smaller councils to group with others to prepare their plans.
To get all this legislation in place, he is going to employ an unusual process which will seer Parliament’s Environment Committee essentially write some of the legislation and then have a second look once it has been introduced into Parliament.
He has traded a quick fix (which National is proposing) designed to cope with the current housing crisis for substance and the chance to draft legislation which will endure.
He frankly admits it’s unlikely to affect the housing market till possibly 2024 or 2025.
But he will win widespread applause for playing a longer game; thus ending what one prominent RMA lawyer called the “death by a thousand cuts” that had marked National’s constant amendments to the original act.
Fundamentally Parker’s legislation is aiming for more consistency across the country in planning rules (which he will partly achieve by more centralised directives) and at the same time reducing our current 100 plans to around 14.
Some small local authorities fear this will be a challenge which may even throw in doubt their very existence.
Local authorities will join together to prepare their regional plan in much the same way the four Auckland cities prepared the city’s Unitary Plan.
But Parker told a media conference yesterday he did not think it would end up becoming local body amalgamation by stealth.
“Local government will still be preparing those plans,” he said.
“We’re not taking that function off them.
“There are lots of countries in the world that have shared services or have shared planning frameworks, but still have local democracy.”
Parker said the Government would experiment with c couple of regions to help them through the process in advance of the legislation being completed.”
“I think they’ll find that the residential zone rules are pretty similar from region to region, although it would be possible to have a regional plan that had different regional residential rules and one district compared with another district, they’ll actually naturally coalesce to something that’s common,” he said.
Once the councils have agreed on their joint plan, it will be up to each council to issue consent and administer the plan.
When they are preparing their regional plan, the Councils will need to recognise that the Natural and Built Environments Act — which will be the key act of the three proposed — will have as its purpose “to promote the quality of the environment to support the wellbeing of present and future generations and to recognise the concept of Te Mana o Te Taiao.”
In a Cabinet paper released by Environment Minister David Parker yesterday, he said: “I also propose that the purpose is achieved by ensuring; the use, development and protection of natural and built environments are within biophysical limits; positive outcomes for the environment are identified and promoted and “ the adverse effects of activities on the environment are avoided, remedied or mitigated.”
He said that the hierarchy was such that the first two objectives must be met before any consideration of the management of adverse effects.
“This is a major shift from the RMA, which focuses on individual adverse effects (rather than outcomes) and has not adequately protected our environment,” his Cabinet paper said.
Parker told his media conference the proposed act would “better protect and, when necessary, restore the natural environment.
“It will enable more development within natural environmental limits, and this will improve future outcomes for towns and cities, including in relation to housing supply and affordability.
“It will do this by focusing more on biophysical outcomes and less on the subject of amenity considerations, matters of taste which often favour the status quo.”
Sitting on top of the regional plans will be a National Planning Framework which looks like replacing the current National Policy and Environmental Standards which have previously been promulgated to lay down national requirements for issues as diverse as forestry to urban development.
However, all this raises questions about the fate of Part Two of the current act which sets out its purpose and principles.
These sections are widely considered to be the heart of the current system.
A report prepared last June for Parker by retired Appeal Court Judge Tony Randerson argued that the purpose and principles of the current act offered insufficient protection for the natural environment at the same time as it lacked recognition and strategic focus for development.
Randerson also found that there was insufficient recognition for the Treaty of Waitangi and te ao Maori as well as an insufficient focus on outcomes and lack of clarity on intent and implementation.
So he proposed that the purpose of the new NBA be “to enhance the quality of the environment to support the wellbeing of present and future generations and to recognise the concept of te Mana o te Taiao.”
But speaking in Parliament yesterday, Parker said there were views “that have been expressed by some, including the Parliamentary Commissioner for the Environment (Simon Upton) that, inadvertently, the drafting has brought back into too great a focus amenity values.”
(The Ministry for the Environment defines amenity values as those “natural or physical qualities and characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes.”)
“Those issues I’m wanting to work through with other political parties, as well as through the select committee process so that we gain the objectives—which I think we all want—which are the protection of natural values but the enabling of development,” he said.
The role of Maori in the planning process has been controversial with the Maori Party managing to get a Mana Whakahono a Rohe inserted into National’s 2017 reforms as its price for its support for the legislation.
The Mana Whakahono a Rohe provision provided a mechanism for iwi authorities and local authorities to discuss, agree and record ways in which tangata whenua might participate in resource management and decision-making processes.
Randerson made some important recommendations relating to Maori and the planning process.
Fundamentally he said the legislation should change the current phrasing which requires people using the RMA “to take into account the principles of the Treaty of Waitangi” to read: “to give effect to the principles of Te Tiriti o Waitangi.”
Randerson has also deliberately used the title of the Maori version of the Treaty, whereas the current act refers to the English version.
That introduces the important difference between the two versions where the Maori version does not acknowledge that Maori ceded sovereignty to the Crown.
Parker is supportive of Randerson’s overall recommendations.
“That’s something that the government’s looking at very seriously; we’re well disposed towards that,” Parker told the media conference.
“We are liaising with iwi and Maori groups in relation to the articulation of the intergenerational environmental test as well.”
He also suggested the position of Maori in the planning process might change.
Currently, most Maori involvement comes when specific consents are referred to local iwi.
But Parker says Maori involvement is now likely to be shifted to the “front end” (the plan preparation phase).
“We should be front-ending involvement of the likes of iwi authorities, not just in the preparation of plans under natural, built environment environments, but also under the Strategic Planning Act,” he said.
“So we’ve got we’ve got to work the detail of that through, but we’re well disposed.”
There is a great deal of water to go under this bridge yet because of the process that Parker is proposing which will begin with the draft Natural and Built Environments Bill going to the Environment Select Committee probably in May.
The Committee will then begin a formal inquiry into the draft, and the Bill for introduction into Parliament will be drafted and then sometime next year, like all legislation, go back to the Select Committee for more hearings.
The Committee will then report back to Parliament with the final draft of the Bill which may still be amended during its Committee stages in Parliament.
In effect, Parker is sending the Bill to the Select Committee twice. The Committee is chaired by Green MP, Eugenie Sage and has six Labour MPs, two National and one each from ACT and the Maori Party. The Government thus has a 6-3 majority on the Committee with the Maori Party neutral.
The Managed Retreat and Climate Change Adaptation Sct will follow a conventional legislative route but Parker in his Cabinet paper said he wants the Spatial Planning Act passed with the NBA — which he expects will be before the end of 2022.
A partner in an Auckland law firm told POLITIK that even this timetable was ambitious.
“This is a bottom-up review of not only the law but the Resource Management system,” he said.
“It’s important to get it right, and it’s a massive job.
“We actually think that that is quite an ambitious time frame given the water that needs to go under the bridge. “