RMA replacement – the exposure draft is out!

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Over the past decade there has been no shortage of criticism of the RMA from environmentalists and developers alike. Now is your chance to have a say on the RMA’s replacement. The first 14 pages of the Natural and Built Environments Bill have been released for public comment. The exposure draft does not cover the full Bill. The 25 clauses in the exposure draft cover the purpose of the Natural and Built Environments Act (NBEA), the national planning framework and the plan making process.

The purpose

The new purpose at the centre of the NBEA is twofold:

  • to enable Te Oranga o te Taiao to be upheld, including protecting and enhancing the natural environment – this concept is new, very broad and includes the health of the natural environment, iwi, hapu and te taiao relationships, the interconnectedness of the environment and its capacity to support life; and
  • to enable people and communities to use the environment in a way that supports the well-being of present generations without compromising the well-being of future generations – ‘well-being’ is broadly defined and this concept is similar to, but differently worded from the first part of section 5(2) of the RMA.

The new purpose section is longer than section 5 of the RMA and contains some very broad concepts which will no doubt be open to interpretation. It places the new concept of Te Oranga o te Taiao at the heart of the purpose of the new Act. The concept of ‘sustainable management’ is no longer referred to, although many of its concepts still appear in the new Act.

To achieve the purpose:

  • environmental limits will be used;
  • outcomes for the benefit of the environment must be promoted; and
  • adverse effects must be avoided, remedied or mitigated (this concept has been rolled over from the RMA and, interestingly, ‘mitigation’ is defined as including offsetting and environmental compensation).

The current requirement “to give effect to” the principles of te Tirirti o Waitangi rather than the current “take into account” requirement in section 8 of the RMA. New environmental limits and outcomes are also proposed. Clause 7 requires environmental limits to be prescribed in the national planning framework (NPF) for the purpose of protecting the ecological integrity of the natural environment and/or human health. The provisions aim to establish ‘environmental bottom lines’ by requiring the limits to articulate minimum biophysical states or the maximum amount of harm or stress that may be permitted. Environmental limits are mandatory for air, biodiversity, habitats and ecosystems, coastal waters, freshwater; soil, and any other purpose that protects the natural environment or human health.

Clause 8 sets out a long list of environmental outcomes that the NPF and all plans must ‘promote’. Many of these outcomes are conflicting, ranging from specifying elements of the natural environment that are required to be “protected, restored or improved” to development focused outcomes such as urban areas that are well-functioning and responsive to growth and a housing supply to provide choice to consumers. The emphasis on restoration and improvement begs the question of who will pay for this work. On the climate change front, the outcomes require greenhouse gas emissions to be reduced and an increase in the removal of those gases from the atmosphere. There is also a focus on supporting an increase in the generation, storage, transmission and use of renewable energy.

The National Planning Framework

The new NPF will sit at the top of the plan hierarchy and will be issued as regulations (likely preceded by a Board of Inquiry or independent hearing panel process). Under clause 10 its purpose is to provide for matters of national significance, matters for which national consistency is desirable or matters where some consistency is required across parts of New Zealand. Environmental limits may be prescribed in the NPF, or the NPF may prescribe requirements to set such limits. A precautionary approach must be applied in setting such limits. The definitions section defines what is required when adopting a precautionary approach and this requirement appears a number of times throughout the exposure draft.

The NPF must direct outcomes in relation to the long list of environmental outcomes in clause 8 but may also address any other matter that accords with the purpose of the NPF. This change represents a significant move away from the effects based regime in the RMA. In an effort to address the inevitable conflict that will occur between the various environmental outcomes, the NPF must include provisions to resolve conflicts between those outcomes. The question remains, however, as to whether the very long list of conflicting environmental outcomes in clause 8 will encourage decision makers to revert to a broad overall approach in weighing conflicting considerations.

The NPF must also include strategic goals such as, for example, outlining the vision, direction and priorities for integrated management within environmental limits and how the well-being of present and future generations is to be provided for in the relevant environmental limits. The purpose of these strategic goals is not clear. How do they differ from the environmental outcomes in clause 8? Are they essentially the same as ‘objectives’?

Provisions in the NPF must be given effect to through the plans or the regional spatial strategies or may have direct legal effect without being given effect to through those documents. Clause 18 contains a set of implementation principles for the NPF but the drafting is only indicative at this stage. Presumably these implementation principles would be secondary to the purpose of the Act and the environmental outcomes but it is not clear exactly where they sit in the hierarchy.

National and built environments plans

New national and built environment plans (NBEPs) will be prepared for each region prepared by regional planning committees (comprising an appointee by the Minister of Conservation, mana whenua members and representatives of the local authorities). The NBEP must state environmental limits, give effect to the NPF, promote the environmental outcomes of section 8, be consistent with the regional planning strategy and help resolve conflicts between the environmental outcomes. There is also a placeholder in the exposure draft that contains indicative wording requiring NBEPs to manage the same parts of the environment and activities that regional and district councils currently manage. Like current regional and district plans, NBEPs may set objectives, rules, processes, policies and methods. Clause 22 also states that NBEPs may identify land for which a stated use, development or protection is a priority.

Have your say

The exposure draft will be referred to a two-step select committee enquiry process. The select committee will set a date by which it must receive submissions on the exposure draft and a process for hearing those submissions. There will be a second opportunity to submit to the select committee when the full Bill is introduced to Parliament in early 2022. The new legislation provides an exciting opportunity to contribute to how New Zealand’s environment is managed into the future.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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