Government to repeal and replace the RMA – Expert Reaction

The Government has signalled its intention to scrap the 30-year-old Resource Management Act (RMA) and replace it with three new pieces of legislation.

Comprising more than 800 pages, the RMA is one of the most complex pieces of law in New Zealand. The three new acts to replace it would be the Natural and Built Environments Act (NBA), the Strategic Planning Act, and the Climate Change Adaptation Act. The announcement follows an independent review of the RMA last year.

The SMC asked experts to comment on this announcement.

Professor Troy Baisden, Environmental Research Institute, University of Waikato, comments:

“The Minister for the Environment, David Parker, has today signalled the next big steps in reform of New Zealand’s environmental management legislation. The Resource Management Act will be broken into three logical pieces, as proposed in a review completed in July last year. In general, these changes should make it easier to develop and use science to manage the environment. It will make it easier to understand how processes work and how to take action to protect the environment, while making decisions about activities that have environmental impacts.

“The most clearly signalled change is the Climate Change Adaptation Act, which will enable better responses to issues known to science, such as sea level rise. The Strategic Planning Act and other changes will presumably make the complexity of Regional Council Plans regulating the environment more comprehensible, by consolidating over 100 documents into as few as 14. There is potential for much less time spent litigating the high-level planning process, and clearer, more uniform targets for science and communities to engage with.

“What remains is the core functions of the RMA folded into a Natural and Built Environments Act, which still must manage the tradeoff between our wellbeing and economy in built and productive environments, including agriculture, and impacts on natural ecosystems including lakes and streams.

“The information so far indicates there has been a major motivation to install clearer processes to take environmental limits into account. That will provide a contrast to the RMA, in place for three decades, which mainly focusses on local perceptions of tradeoffs between costs and benefits to manage individual activity.

“Across the three new acts, the devil will be in the details. There is reasonable hope there will be better and clearer points of engagement and decision-making for input from communities as well as science and research, and a more manageable and effective role for iwi and hapū in line with Te Tiriti o Waitangi.”

No conflicts of interest

Dr Nicholas Kirk, Environmental Social Researcher, Manaaki Whenua – Landcare Research, comments:

“Today’s decision to repeal and replace the Resource Management Act is the most significant legislative development in New Zealand’s resource management for a generation. The RMA’s effects-based management system was initially perceived as an elegant way of ensuring that resource development occurred within environmental limits. In practice, managing the effects of different activities on the environment was difficult for local governments, and in response, local governments developed larger and more complex plans.

“The shift from a complex effects-based management system towards one that focuses on the achievement of positive outcomes within environmental limits is to be lauded. These outcomes will need to be general enough to represent the enormous diversity in New Zealand’s built and natural environments, while also being specific and attainable. When trying to achieve this balance while setting positive outcomes, there is a risk we set unambitious outcomes that fail to redress the multiple overlapping problems New Zealand’s built and natural environments are experiencing.

“Another positive development is the requirement for central government, local government, and Māori to work together to develop long-term spatial strategies. This reform process presents an opportunity for the Crown to engage Māori as Tiriti partners in resource management. However, some iwi already struggle to participate in local government planning and consent processes, with different iwi having different capacities to contribute. To effectively partner with Māori, central and local government will need to recognise how past decisions have disempowered tangata whenua and made it more difficult for them to participate in decision making processes, while also providing mechanisms that enable Māori to contribute more easily to planning and policy processes.

“One further risk is that the institutional knowledge developed through thirty years of RMA case law will be lost. These new legislations could potentially result in relitigating resource management decisions in the courts. I remain concerned that we risk repeating the lengthy period it took to develop plans, limits, and targets as occurred when the RMA was first introduced in 1991.”

No conflicts of interest

Dr Judy Lawrence, Senior Research Fellow, Climate Change Research Institute, Victoria University of Wellington, comments:

“The Minister’s announcement is real progress on implementing the recommendations of the Randerson Review of the RMA.

“However, progress on all three proposed Acts is essential in tandem.

“The Climate Change Adaptation Act, first mooted by the Randerson Review, is critical for addressing the significant barriers to implementing the mandates and practice on climate change effects under the Natural and Built Environment Act and the Strategic Planning Act.

“Aligning resource management with the Local Government Act, the Land Transport Management Act and the Climate Change Response Act will facilitate better decision-making that can avoid the climate change risks identified in the National Climate Change Risk Assessment.

“It will also address the entrenched risks and settlement patterns that are increasingly being exposed to climate change effects. The ongoing costs of climate change impacts to communities and the taxpayer can be addressed through the three statutes together; links between them is essential for local government to manage those risks effectively.

“Where and how we develop our settlements and the supporting infrastructure will have significant impacts on our ability to meet the Government’s climate change targets and adaptation goals. We have an opportunity to get this right now.”

Note: “I am a Climate Change Commissioner but the views are my own as an adaptation expert.”

Associate Professor Caroline Miller, Resource & Environmental Planning Programme, School of People, Environment & Planning, Massey University, comments:

“The Minister for the Environment has announced, surely to the relief of the many critics of the present RMA, that the process of replacing it will begin. As expected, the three-act structure proposed by the Randerson Review of 2020 has been confirmed as the model on which the new system will be based. This will see the RMA replaced by a Natural and Built Environments Act (NEA) to cover land use and environmental regulation, a Strategic Planning Act (SPA) to develop long-term spatial strategies, and a Managed Retreat and Climate Change Adaptation Act (CAA) to address our response to the effects of climate change.

“That latter act is likely to prove the most problematic to implement given the expected impacts of sea-level rise on our long, well-populated coasts, which are dotted with increasingly expensive coastal developments. The time, effort, and difficulties generated in trying to deal with the contained Matata managed retreat issue is a signpost to the time and costs of addressing only part of this new act’s implementation.

“Sensibly, the Minister has recognised that this is not the time for a rushed process to replace the RMA, regardless of this being the preferred solution for many of the RMA’s critics. Building new and effective legislation takes a great deal of time and effort, something the development of the RMA provided a perfect example of. That is particularly the case where there is a clear desire to institute revolutionary rather than evolutionary changes to the way we plan and manage our resources. The RMA was itself a product of just such revolutionary change, which ultimately proved less than successful. As a result, it was constantly amended to the point where it failed to provide a comprehensive and integrated planning and resource management system. So it’s definitely a time to adhere to the Roman adage of festinate lente—to make haste slowly.

“However, one of the more worrying aspects of the reform is the move to create spatial and other plans at a regional level, rather than the local level where land use planning has always been based. The logic is that this will see 100 district and regional plans replaced by 14 spatial plans. Seductive as this seems, it is a model that may serve the needs of the major urban centres such as Christchurch, Wellington, and the cities of the Golden Triangle (Auckland, Hamilton and Tauranga) well, but is likely to be less successful outside these centres.

“Regional council boundaries are, after all, based on water catchment boundaries, which often make little sense for urban land use planning, which the Minister has identified as having been poorly served by the RMA. The RMA’s arrival was accompanied by local body reform and amalgamations, and this may again be needed to create sensible local government units for the new planning system.

“Equally, while it is true there will only be 14 plans, they are likely to be hefty documents given the diversity they will need to address. Planning provisions for Palmerston North for instance, will hardly be suitable for [the nearby towns of] Marton or Bulls. There is also a desire to try to ensure that ‘entrenched subjective amenity values’ are swept away to ensure they no longer contribute to ‘rapidly increasing land prices’. That will require individuals and communities to become more selfless and community focused, which seems to clash with our long attachment to housing as an investment opportunity that is expected to yield a healthy capital gain. If land costs are to be addressed, it can only be hoped that the issue of land banking is also addressed, given that it is never in a developers’ interest to flood the market with sections if that drives down the price of those sections.

“The focus on fewer plans and greater uniformity will require a bigger and more ‘hands-on’ role for central government in the planning system, something it has not had since the mid-1980s. That will mean great resourcing of both the EPA and MfE, which has always been a small advisory ministry. Covid-19 has brought a greater government involvement in the day-to-day lives of New Zealanders, so this may ensure that the government is more comfortable with taking on this enhanced role and resourcing it and the public in accepting the surrender of aspects of local democracy. There is a clear commitment to ensuring that the implementation of the new system is supported and resourced, something that was not done with the RMA, ensuring its early implementation was problematic. Of particular importance here will be the need to support and resource Māori to ensure the stronger and more central role they will have in these new acts is actually achieved.

“So clearly, this is the beginning of a time of significant change in the way we undertake land use planning, planning for other resources and planning to actively address the consequences of climate change. However, it is important to not create public expectations that the replacements for the RMA will be with us any time soon, or that they will prove to be a panacea for the issues around housing supply and affordability. To believe that would surely be to believe in miracles.”

No conflict of interest.