RMA Round Up

The Government signals a radical transition with less red tape for resource management. Last week, the Expert Advisory Group’s Blueprint for Resource Management Reform was released, along with a cabinet paper discussing the Group’s proposal. This is a major step forward in the Government’s Resource Management Act 1991 (RMA) reform agenda. Some of the proposals (such as the focus on property rights) were foreshadowed, however others offer some intriguing insights into the Government’s approach to shaping the RMA of tomorrow. Below, we delve into the Blueprint and what the Government has said so far. Format of the replacement The Government has proposed two new Acts to replace the RMA: The Planning Act, which proposes “to establish a framework for planning and regulating the use, development and enjoyment of land”; and The Natural Environment Act, which proposes “to establish a framework for the use, protection and enhancement of the natural environment”. The two new Acts will be based on enjoyment of property rights while focussing on the concept of “externalities” – being the costs or benefits resulting from activities that fall on a third party. Effects borne by the person undertaking the activity will not be controlled. Each Act will also contain a set of decision-making principles, to guide decision making. This is a notable new concept which is not present in the RMA. Examples of the proposed decision-making principles include recognising the positive effects of development and balance these against costs, providing guidance as to how to resolve conflicts within documents, and consider whether adverse effects should be minimised, remedied, offset, or mitigated. Key points The Blueprint proposes new approaches to many matters, however, some aspects bear strong resemblance to the short lived Natural and Built Environment Act 2023, such as the proposals around national direction, environmental limits, and spatial planning.  Below we outline some of the key proposals. Permitted activity presumption – the two Acts will have starting presumptions that a land use is enabled unless there are significant impacts on either the ability of others to use their own land or on the natural environment. National standardisation of the RMA system – including nationally set land-use zones, rules, and policies. This will allow spatial and regulatory plans to be collated and accessed as “one national e-plan for New Zealand”. No more regional policy statements – these will be eliminated and partially replaced by spatial plans made under the Planning Act. A single regulatory plan per region – the regional council will prepare a natural environment plan, and district councils will each prepare a chapter of a combined district plan. No more first in first served – where a resource approaches overallocation, or an environmental limit will soon be breached, the relevant community must agree a timeframe and approach for making improvements and settle on an alternative allocation method to ‘first-in-first-served’. Changes to consent processes: Alternative consent processing tracks, such as direct referral and nationally significant proposals, are not proposed to be included in the Planning Act. The two Acts will raise the bar for when a person is considered to be affected, with only those ‘materially affected’ by an activity able to participate in consent processes. When an application is fully notified, the Blueprint proposes that notification be limited to the district within which the activity is located. Changes to activity classes, including: Making greater use of permitted activities; Removing controlled activities; Greater focus on the use of restricted discretionary activities; Removing non-complying activities; Narrowing the scope of prohibited activities and providing direction on how they are to be used. Environmental limits – the Natural Environment Act will require environmental limits to protect the life-supporting capacity of the natural environment. A new Planning Tribunal – to offer quick, low-cost conciliation and administrative review of council functions. Of note is a proposed new route to challenge notification decisions by way of administrative review – with challenge of notification decisions only available by way of judicial review to the High Court at present. Reverse sensitivity will be no more – the Blueprint proposes that the Planning Act will clarify the protection of existing use rights, including that those who ‘come to the nuisance’ will not be able to complain about it. Landscape and amenity effects – do not have a role in the new system, beyond protecting outstanding features and landscapes, and areas of high natural character. Treaty settlements and Te Tiriti purpose – the Government has confirmed that provisions honouring existing Treaty settlements will be included in the Acts. The Blueprint recommended the existing s 8 RMA clause and the requirement to ‘take into account’ the treaty principles be carried forward, however, the Government has said that the departure from the recommendation was due to having “a different view as a Government”. A copy of the press release, including the Blueprint and cabinet paper, can be found here. The bold goals of the Government for RMA reform mean users and practitioners are in for some interesting times. If you have any questions or wish to discuss the RMA reforms, please get in touch with our resource management team.

The High Court’s recent decision in Environmental Law Initiative v Director-General of Conservation that an authority under the Wildlife Act 1953 (Act) authorising the killing of protected wildlife was unlawful may have major flow on effects across the infrastructure and development sector. The High Court set aside the “killing” aspect of Waka Kotahi’s s 53 wildlife authority associated with the development of the Mount Messenger Bypass in Taranaki (Project) on the basis that it was unlawful and should not have been granted by the Director General of Conservation in the first instance.  The Project was located in various areas of native habitat and ecological mitigation and offsetting was proposed which included relocation of protected wildlife species.  Authority was also sought by (and granted to) Waka Kotahi to kill protected wildlife during the construction of the Project as it was considered impossible to capture and relocate every individual of the various protected species from the Project’s footprint. Background: Waka Kotahi obtained an authority under s 53 of the Act to capture and kill 46 protected species during construction of the Project (s 53 Authority).  The s 53 Authority was granted in December 2021 and construction began in October 2022.  That same month the Environmental Law Initiative (ELI) queried the lawfulness of the killing authorised by the s 53 Authority which prompted Waka Kotahi to then apply under s 71 of the Act for an authority (s 71 Authority) to undertake the same capture, relocation and killing authorised under the s 53 Authority.  The s 71 Authority was granted in August 2023 on the same conditions (with some additional reporting requirements) as the s 53 Authority. ELI did not oppose the Project, nor did it challenge the granting of the s 53 Authority to the extent that it authorised the capture of protected wildlife.  Rather its two challenges related to: The Director-General of Conservation’s decision to grant the s 53 Authority to kill protected wildlife (ELI accepted that the capturing component was lawfully authorised); and The Minster for Conservation’s and the Minister for Transport’s decision to grant the s 71 Authority which authorises the same capture and killing activities as the s 53 Authority. Te Runanga o Ngāti Tama also joined the proceedings as an interested party to ensure that their reo was heard. Decision: The High Court found the s 53 Authority to be ultra vires and unlawful as it allowed the killing of protected species for the duration of construction of the Project with the individual killings not having a protective element.  The s 53 Authority was set aside to the extent of the killing aspect.  The reasons for the Court’s decision were as follows: Inconsistent with Act’s purpose - In upholding the first cause of action, the Court followed the Supreme Court’s direction in Shark Experience Ltd v PauaMAC5 Inc [2018] NZSC121 that the principal purpose of the Act is the protection of wildlife. The killing aspect of the s 53 Authority did not provide a protective benefit to wildlife that it authorised to be killed and was ultimately held to be inconsistent with the purpose of the Act. Nexus between Act’s purpose and the killing activity - The Court rejected Waka Kotahi’s and Ngāti Tama’s submission that the Act’s purpose is to be assessed in connection with the overall scope of the Project and instead held that a direct nexus is required between each individual act of killing authorised by the s 53 Authority and the purpose of the Act, being protection of wildlife (in doing so the Court considered it was following the decision in Shark Experience Ltd). The Court held that the interaction with wildlife authorised by s 53 authorities need not solely or primarily be aimed at protecting wildlife and a wildlife authority can have other purposes so long as each individual interaction with wildlife has a protective purpose. The Court upheld the s 71 Authority granted to Waka Kotahi as authorities under this section can be obtained in limited circumstances where the activity is otherwise subject to one of the pieces of legislation listed in Schedule 9 of the Act.  The Government Road Building Powers Act 1989 is one of those Acts which meant that Waka Kotahi could obtain a lawful wildlife authority under this section. Result: DOC has since confirmed that it is considering the High Court’s decision and what this means for how it manages its responsibilities for wildlife authorities (its press release is here).  Its advice to operators that currently hold authorities involving the incidental killing of wildlife is to continue to undertake activities consistent with the conditions of their wildlife authorisations and to take all reasonable steps to ensure wildlife is not harmed. Depending on the circumstances DOC (and ELI) have confirmed there might be a possible defence to such unlawful killing under s 68AB of the Act where the killing was not intentional and where the person doing the act resulting in the killing took all reasonable steps to ensure that killing did not occur. Nonetheless, operators may want to undertake careful review of existing wildlife authorities that purport to authorise the killing of protected wildlife to ascertain whether any issues arise. Holland Beckett is experienced in providing advice to clients on authorities under the Wildlife Act 1953.  If you have any questions about what this case may mean for you, please do not hesitate to contact a member of our resource management team.

The Government is aiming to deliver on its promise to deliver a new fast-track consenting regime before the end of 2024.  The Fast-track Approvals Bill has passed through its third reading in Parliament on 17 December 2024 and we would expect it to be given royal assent before the end of 2024 meaning that it will become law. At the committee of the whole house stage the Minister Responsible for Resource Management Reforms, Chris Bishop, introduced an amendment paper which tabled various substantive amendments to the bill.  These amendments were incorporated into the bill through the committee of the whole house stage with little amendment. The amendments are largely favourable to applicants. The significant changes that have been made to the bill since the Select Committee’s report are as follows:  The listed projects have now been included  in Schedule 2.  The projects listed were not a surprise as they has been previously announced by the Government towards the end of the Select Committee stage. There are new provisions that allow the Minister for Infrastructure (currently Minister Bishop) to determine that a project is a ‘priority project’.  An applicant can apply to the Minister for its project to be given priority, or the minister can make this decision of their own initiative.  Panels must be set up for priority projects before non-priority projects. Applications cannot be lodged before 7 February 2025. There are some changes to the information requirements, with a focus on providing information to show how a project is consistent with the purpose of the bill (i.e. to facilitate delivery of infrastructure and development projects with significant regional or national benefits). Before declining an application, a panel must provide its draft decision to the applicant before it is finalised.  At this stage, the applicant can propose modifications or conditions to its application which functions as a pseudo ‘second chance’ to adapt an application to address a panel’s concerns. The scope for the reasons for declining an application has been expanded to include where there is a breach of s 6 of the Resource Management Act 1991 (which relates to Treaty settlements). The timeframe in which a Panel must make its decision has been increased from 25 working days to 30 working days from the date specified for receiving comments, but the power for a panel to extend the timeframe for making a decision beyond 30 working days from the date comments were to be received has been removed.  However, the panel convener can set a timeframe that is longer than 30 working days if they consider that to do so is appropriate given the scale, nature and complexity of the approvals sought. The eligibility criteria for the panel convener has changed so that it can now be a senior lawyer with expertise in resource management.  There is no longer a requirement for the panel convener to be a retired or active judge. As set out above, applicants will have to wait until 7 February 2025 to lodge an application with the Environmental Protection Authority.  It will then be interesting to see how quickly panels are set up.  2025 is sure to be an interesting year for consenting in New Zealand, with many complex and exciting projects included in Schedule 2.