Phase three of the Resource Management Reforms

Another amendment Act, in a long line of RMA amendment Acts, came into force on 24 October 2024.  The Resource Management (Freshwater and Other Matters) Amendment Act 2024 (Act) makes the following key changes to the RMA: Freshwater The “hierarchy of obligations” in clauses 1.3(5) and 2.1 of the National Policy Statement for Freshwater Management 2020 (NPSFM) are no longer considerations for resource consent decisions. This applies to resource consent applications lodged before commencement if the consent authority has not, before commencement, served notice of its decision on the application. Provides that councils are not to notify “freshwater planning instruments” (giving effect to the NPSFM) before the a new NPSFM has been published or the end of 2025. This is a year later than the RMA previously required.  Exemptions from this delay can be sought in certain circumstances. Section 107 of the RMA has been amended to clarify that councils can grant resource consent for discharges that would result in significant adverse effects, provided conditions reduce effects over time. This is a direct response to the Environmental Law Initiative’s successful judicial review of a discharge permit in mid Canterbury. Freshwater / Farming The Act removes the use of low slope maps under the Resource Management (Stock Exclusion) Regulations 2020 that restricted the grazing of beef, cattle and deer on low slope areas near water bodies. Low slope maps are to be replaced with freshwater farm plans and/or regional plans wherein Regional Councils can determine where stock grazing needs to be excluded on a case-by-case basis. Further, the Act repeals the permitted and restricted discretionary activity regulations and associated conditions for intensive winter grazing in the National Environmental Standards for Freshwater (NES-F). The Act replaces these with standalone regulations on riparian setback and critical source areas. Significant Natural Areas Local authorities have an obligation in the National Policy Statement for Indigenous Biodiversity (NPS-IB) to identify and include new significant natural areas (SNA) by 4 August 2028. These identification and incorporation requirements are suspended for three years by the Act which amends the timing provisions for when councils must publicly notify a proposed plan or plan change that gives effect to the NPS-IB.  This change seeks to provide sufficient time for Government to undertake a thorough review of how SNAs operate. Coal Mining The NPS-FM, NPS-IB and the NES-F all provide a consent pathway for mining activities in or near wetlands and SNAs, except for new coal mining activities.  The Act aligns the consenting pathway for new coal mining activities with the pathway for other mineral extractive activities across the NPS-IB, NPS-FM and the NES-F. National Direction The Act enables the Minister for the Environment to amend national direction (excluding the New Zealand Coastal Policy Statement) without using the standard process where the amendment is for a range of purposes including to give effect to international obligations and to change timeframes.

On Friday 18 October 2024, the Environment Committee reported back on the Fast-track Approvals Bill which was introduced on 7 March 2024. We take a look at what’s changed, what stays the same, and the road ahead. What’s changed? The Environment Committee has recommended the following key changes. The purpose of the Bill has been re-framed as “to facilitate the delivery of infrastructure and development projects with significant regional or national benefits”. Timeframes are amended slightly to provide the Expert Panel with 10 working days (rather than five) from their appointment to issue an invitation for written comments, and to provide those invited to comment with 20 working days (rather than 10) to provide those comments. Expert Panels no longer include an iwi appointee. However Expert Panels must include at least one member who is suitably qualified in te ao Māori and Māori development. The Expert Panel (not Ministers) will make final decisions on substantive applications. When considering applications, the Expert Panel must give the “greatest weight” to the purpose of the Bill. The Expert Panel may decline an approval if it forms the view that the activity or activities for which the approval is sought would have one or more adverse impacts, and those adverse impacts are sufficiently significant to outweigh the purpose of the Bill even after any conditions that the panel may set in relation to those impacts are taken into account. The lapse provisions have been amended to allow some discretion. Lapse periods must be at least two years, and if not specified, a default lapse period of five years will apply. What’s stayed the same? The Bill is still an ‘omnibus’ bill which covers a wide range of processes, not just resource consents. A person who has applied for an approval under another Act must withdraw that application before lodging a substantive application that seeks a corresponding approval under the Bill for the same, or substantially the same, activity. The Expert Panel still has a window of 25 working days from the closing date for comments to issue its decision, which is significant given the scale and complexity of many of the projects listed (although suspensions are provided for and there is the ability to extent that timeframe). Appeal rights are available to the High Court on a point of law only. Rights of judicial review are not affected by the Bill. The road ahead The Bill still refers to Schedule 2A and 2B (with provisions for Part A listed projects and Part B listed projects), despite the Minister’s announcement on 6 October 2024 that “Because of the unprecedented level of interest in this process, it became clear that so many projects were suitable for 2A that having a separate list for Schedule 2B became unnecessary, so it will be deleted from the Bill.” Presumably this will be amended as the Bill progresses through Parliament. For listed projects, the immediate issue will be resourcing the processing of those. With 149 projects selected for listing in the Bill, it remains to be seen how many will convert into lodged applications (and how quickly). There is also a mandatory requirement to consult specified persons before lodging the substantive application with the EPA. Once applications are lodged, Experts Panels will need to be formed to process applications. Overall, the fast-track process is likely to be resource intensive for all participants. Seeking referral for fast tracking is still possible (as was the case with the COVID-19 (Fast-track) Consenting Act 2019). However, the question will be the extent to which there is capacity within the system for the processing of referral applications, and referred projects, in light of the volume of listed projects. The Bill is expected to become law before the end of the year. For any questions, please contact one of the below who all have experience with fast-track applications.

The Government intends to introduce its second RMA amendment bill and a suite of changes to national direction to “drive economic growth and productivity”, RMA Reform Minister Chris Bishop says. Following the first RMA amendment Bill introduced to Parliament earlier this year, the next stage of the Government’s RMA reform, prior to full replacement, is aimed to be achieved by a second RMA amendment bill (RM Bill 2) and a suite of national policy changes through introduction of a ‘national direction package’. The intention is for the RM Bill 2 to be introduced to Parliament before the end of this year, and then passed into law by mid-2025.  The national direction package will follow the same timeline and this bill. The Government has divided the RM Bill 2 and the national direction package into four categories: infrastructure and energy, housing, farming and the primary sector, and emergencies and natural hazards. The reforms proposed under each topic are as follows: Infrastructure and Energy Improved delivery of renewable energy development by giving effect to National’s Electrify NZ. The Electrify NZ policy can be found here, which intends to “cut red tape to drive investment in renewable electricity generation.” A new NPS for Infrastructure which intends to ensure that resource management decisions consistently enable infrastructure to be development, operated, and maintained whilst also managing its effects on the natural environment. Amendments to the NES for Telecommunications to keep it up to date with developments and give telcos greater certainty and reduced consenting costs as they upgrade their infrastructure. Changes to the resource management system to ensure a consistent approach to quarrying. Inclusion of port operators and emergency service providers as requiring authorities. Extension of the default designation lapse period from 5 years to 10 years. Extension of the duration of port coastal permits by 20 years. Housing Delivery of the ‘first pillar’ of the Government’s Going for Housing Growth policy. We discussed this policy, and the objectives of the first pillar, in our previous article here. Development of a new NES for Minor Residential Units (i.e. granny flats). Development of a new national direction for papakāinga housing, that will require each district plan to contain provisions to enable more papakāinga housing.  Simplifying the way that heritage is managed. Farming and the Primary Sector Immediate national direction changes will be made to enable development of renewable energy, indoor primary production and greenhouses on highly productive land. We discussed the changes to the NPS on Highly Productive Land in our earlier article here. Further announcements are expected from the Government’s Agriculture and Primary Sector team on what changes will be made to this sector under this second tranche of reforms.  Minister Bishop has indicated that these will largely give effect to a collection of promises made in the National Party’s manifesto and coalition agreements. Emergencies and Natural Hazards To further develop the NPS for Natural Hazards so that it will provide a comprehensive, nationally consistent framework for addressing the risks posed by natural hazards, including increased risk from climate change. The NPS for Natural Hazards will provide direction to councils on how to identify natural hazards, assess the risk they pose and respond to that risk through planning controls. The RM Bill 2 proposes to better enable rapid responses to disasters by improving emergency provisions including a new regulation making power for emergency responses. Alongside these four packages, a range of technical changes are proposed to improve the resource management system’s coherence.  Whilst the precise form of these changes is yet to be released, what is apparent is that the coalition Government is being consistent with its position to undertake vast and quick reforms of our resource management system. Holland Beckett is experienced in providing advice to clients on the current reforms to New Zealand’s resource management system.  If you have any questions about these reforms, please feel free to contact us.