Bridget Bailey

The Government has introduced the two Bills that are intended to replace the Resource Management Act 1991 (RMA), these being the Natural Environment Bill (NEA) and the Planning Bill (PA). The intention appears for these bills to read for the first time in the coming week, and for them to be enacted in mid-2026. This article focuses on the implications of the new Bills for the consenting process. You can also read our article on the structure and new policy and planning framework of the Bills here. Consenting is managed under both Bills generally following the existing split between consents/permits managed by regional councils (managed under the NEA) and consents managed by district councils (managed under the PA). Resource consents are out, resource and planning permits are in The consenting framework under the Bills align with the Government’s goals of enabling development and reducing regulation. These changes impact what effects can be considered and who can be involved in resource consent processes. A change in language will occur as some resource consents will become resource permits. The key changes to the way of changes in which resource permits and considered and made are: Activity statuses: Controlled and non-complying activity classifications cease to exist. At this time it is unclear if controlled activities would become permitted or restricted discretionary under the system. Effects: The consideration of effects of an activity will be curtailed by the Bills. Positive effects, cumulative effects and natural hazards are now included. The following effects are excluded: visual amenity, financial viability, precedent effects, internal effects and less than minor adverse effects (unless they give rise to a cumulative effect that is more than less than minor). Permitted activities: The objective is for more activities to be permitted activities, subject to conditions. This is reflective in the prescriptive wording of the Bills’ guidance on classification of activities which provides that an activity should be permitted if it is acceptable, anticipated, or achieves the desired level of use, development, or protection of the natural environment or the adverse effects of the activity are known and can be managed (i.e. by way of conditions in a permitted activity rule). Affected persons: Only those who are materially affected can participate in a permit application process. Limited notification will only occur if effects are more than minor, which is a distinct lifting of the threshold required under the RMA which provides that a person is effected if the effects on them are “minor or more than minor”. Public notification: The threshold for public notification has also been lifted and will only occur where the adverse effects of the proposed activity on natural resources or persons (NEA) or built environment (PA) are significant. Consent terms: Carried over from reforms made to the RMA in mid-2025 permits associated with long lived infrastructure and renewable energy generation: Have a starting point of a 35 year duration; and In the case of structures in the coastal marine area or beds of lakes and rivers have a maximum duration of 50 years. For other activities associated with renewable energy generation or long lived infrastructure (i.e. permits relating to water) the NEA makes it clear that the maximum duration is 35 years. What does this mean for existing resource consents? Existing consents will carry over into the new system. This provides important continuity for consent holders. The question then arises – what happens to my resource consent application? A transitional consenting process will apply from the period one month after the Bills receive royal assent and once the Order in Council repealing the RMA is made – this is referred to as the transitional period. This transitional process provides that the traditional RMA process for consent application is to be followed, albeit with some modification: The Bills’ procedural principles are to be adhered to. Certain effects are excluded from the scope of what can be considered. The “special circumstances” criteria is removed from the public notification test. Spatial plans and national standards are to be considered, once they are developed. If an application is lodged and granted pre-transition period then it will be treated as a resource consent under the RMA. If an application is lodged pre-transition period, but a decision is made post-transition period then it will be treated as a permit under either the PA or NEA. The return of the Planning Tribunal The Planning Tribunal is getting a second-wind although only in name as the scope of its jurisdiction is different to the Planning Tribunal of years gone. This new tribunal will be established as a division of the Environment Court and will address administrative matters during the consent consideration process including, but not being limited to: requests for further information, interpretation of permit conditions, notification decisions, and striking out permit conditions that are deemed to be out of scope. The Planning Tribunal will not hear appeals on plans, applications for notified permits (where there are third party participants, designations – nor will it deal with enforcement actions. Automatic consent extension Additionally, the Government introduced the Resource Management (Duration of Consents) Bill on 9 December 2025, which was passed under urgency on 10 December 2025 – the only stage left before it becomes law is for it to be given royal assent. This Bill seeks to automatically extend resource consents that are due to expire before the new Bills are in force, and to deem that recently expired consents are reinstated and their expiry automatically extended. The Bill provides that: Resource consents that would otherwise expire before 31 December 2027 are automatically extended until that date. Recently expired resource consents (where an application for a replacement consent has been made under section 124 of the principal Act, but not yet determined) are deemed to be reinstated and extended until 31 December 2027. Consents relating to freshwater are excluded from extension beyond a total duration of 35 years. The resource management space is rapidly changing in New Zealand. We will continue to provide updates as the changes process. If you would like to know more about how these changes will affect you, or you would like assistance drafting a submission (once the submission period dates are announced), please contact one of our Resource Management team members below.

Fulfilling its promise, the Government introduced the two Bills that are intended to replace the Resource Management Act 1991 (RMA), these being the Natural Environment Bill (NEA) and the Planning Bill (PA). The intention appears for these Bills to read for the first time in the coming week, and for them to be enacted in mid-2026. This memorandum will address the policy and planning structure of the new system. For information about changes to the consenting process please see our article here. By in large, the Bills follow the recommendations made in the blueprint for RMA reform produced by the Expert Advisory Group in March 2025. Each Bill serves an interrelated although distinct purpose but both seek to establish a framework for how the new system will operate, being: For the NEA, for the use, protection, and enhancement of the natural environment; and For the PA, for planning and regulating the use, development, and enjoyment of land. How is the new system structured? The Bills establish a hierarchy of instruments, similarly to that under the RMA. Each instrument must implement the instrument directly preceding it in this hierarchy (and must only implement a higher instrument if there is a requirement to do so in that higher instrument). This hierarchy is as follows, in descending order: Goals National Policy Direction National Standards Regional Spatial Plan Land Use Plans and Natural Environment Plans As was, and is, the case for the RMA the devil lies in the detail so it is likely that the detail of matters such as the allocation of resources, status of particular activities, etc will be fleshed out in greater detail in the national level documents. It will be important to stay abreast of the changes being made so that you can participate in all relevant stages of implementation of the new system (where you are able to) to ensure that your particular interests are put forward and preserved. Goals Comparatively to the expansive purpose of the RMA, the purposes of the Bills are intended to be deliberately straightforward and descriptive. Instead of an overarching purpose, the substantive direction for the system is provided by the goals in the Bills which must be sought to be achieved when undertaking functions or duties or exercising powers under the Bills. The goals sit at the top of the hierarchy but there is no inherent hierarchy within the goals themselves. These goals are intended to define the outcomes that the systems are trying to achieve – The PA’s goals are centred around matters such as separation of incompatible land uses, enabling development of land, planning for infrastructure demand (current and future) and protecting outstanding natural features and landscape, and significant historic heritage. On the other side of the coin, the NEA’s goals focus on use and development of natural resources within environmental limits, safeguarding the life supporting capacity of these natural resources, and achieving a no net loss of indigenous biodiversity. Some RMA matters of national importance have been carried over into these goals, albeit with modification. Notably absent are goals concerning amenity values, climate change related effects, and the relationship with Māori with the environment. There is also no “principles of Te Tiriti o Waitangi” provision, as the goals instead provide for Māori interests to be accounted for by way of consultation and participation in the process of creating the planning instruments. This is a pivot from the Te Tiriti provisions in the RMA, and the Bills are prescriptive in how they meet the Crown’s Te Tiriti obligations. Notably, the Bills provide for negotiation between the Crown and PSGE as to how existing and new Treaty settlements will operate under this new system. National Policy Direction A combined National Policy Direction under each Bill will be prepared centrally and will particularise the goals and direct how they must be achieved. National Policy Direction will also address how conflicts between the NEA’s and PA’s goals are to be resolved. The Ministry for the Environment has advised that the first package of National Policy Direction will be released at the end of 2026. National Standards National Standards, like National Policy Direction, will be prepared centrally and will be intended to be an instrument that provides procedural, regulatory, and administrative consistency, specific direction on how a NEA or PA goal is to be achieved in relation to a matter that is not controlled or covered by a National Policy Direction. In our view these standards will have the most impact on how the lower level instruments will be formed. Most notably, these standards will set some environmental limits and give direction as to the nation’s standardised zoning which for all intents and purposes are “rules” that must be implemented. With respect to environmental limits these must be set for air, freshwater, coastal water, land, soil, and indigenous biodiversity and are to be put in place to protect human health and the life-supporting capacity of the natural environment. An important objective of the new system is the establishment of greater consistency between council plans across New Zealand through greater standardisation which will be driven for the large part by National Standards. This will be implemented by a National Standard that specifically addresses standardisation. Mechanisms are in place whereby a councils can depart from the standardisation which requires provision of a justification report, detailing why a departure is warranted. Regional Spatial Plan In the new system, there must be a combined plan for each region at all times, which will consist of a Regional Spatial Plan and a natural environmental plan (under the NEA) for the region and a land use plan (under the PA) for each district in the region. These are the main point of integration between the PA and NEA regimes. Unlike national level documents, Regional Spatial Plans are more akin to your “boots on the ground” RMA instrument, and are intended to set strategic direction for development and public investment in a particular region for a period not less than 30 years. With respect to environmental limits prescribed in National Standards, Regional Councils are to implement these into their Regional Spatial Plans and if a less stringent limit is so be established, the Council must first provide a justification report to the Minister. No justification report is required if a Regional Council wants to establish a more stringent environmental limit. Land Use Plans Land Use Plans are established under the Planning Bill and regulate the use and development of land within a district and are by all means replacements of district and city plans under the RMA. Natural Environmental Plan This plan is prepared under the NEA by Regional Council and its purpose is to enable and regulate the use, protection, and enhancement of natural resources in a region and to assist Regional Councils in carrying out their functions and responsibilities under the NEA – these are akin to and replace regional plans under the RMA. Under a NEA a regional council will be responsible for allocating natural resources which can be done through permitted activities and permits granted: In the order in which applications are lodged (i.e. the status quo of first in first served); Market-based consenting centred around auctions and tenders. This form of allocation is not permitted to be used until specified in a national standard which can also operational details as to how the process if to be followed; or Comparative consenting which involves an assessment of applications that will use the same resource against one another taking into account the merits of each application and criteria set out in the relevant plan or a national standard. What is the timeframe? The RMA will continue to survive for the time being, until such time as the Minister is satisfied that the combined plans for every region have been notified. At such time, an Order in Council will be made that specifies the “transition date” which will bring to an end the “transitional period” (the transitional period begins one month after both Bills obtain royal assent). On the transition date the RMA will be repealed, the NEA and PA come into full force, and legal effect will be given to all Land Use and Natural Environment Plans. The PA specifies that the transition date cannot be later than 31 December 2027 and no sooner than 6 weeks after the Order in Council comes into force. Whilst not confirming a specific date, the Government’s intention is that this entire process (i.e. final decisions on all plans are made) should be completed in 6 years (although depending on when the Order in Council is made, the RMA may only survive for a portion of that 6 year period). Environmental limits We touched on environmental limits earlier, but this is an important change in the new system as it has a big impact on use of finite resources. Environmental limits are: Human health limits, set by the responsible Minister in national standards; and Ecosystem health limits, set by regional councils in its natural environment plan. The detail of how these limits are to be set will be set out in the national standards. These environmental limits can require: An action plan (being a plan developed by a Regional Council setting out decision making processes, reviews of permit conditions, and preparations of rules in a natural environment plan); A cap on natural resource use (i.e. a maximum amount of a particular resource, e.g. water from a River, that Regional Council may allocate through plan rules and permits); or Both an action plan and cap. Regional Council is required to avoid breaching the set environmental limits and must take action if a limit is breached or if there is sufficient evidence to indicate that a limit will be breached. Regulatory relief The PA establishes a regulatory relief framework in which Councils are required to consider the impact on private landowners as a result of planning controls on indigenous biodiversity, significant natural areas, significant historic heritage, sites of significance to Māori, outstanding natural features and landscapes, and areas of high natural character. Where any controls create an impact on the landowner that is more than minor, the council must provide relief. Relief can take a variety of forms including, but not being limited to, development rights, no-fee consents, rates relief, access to grants, provision of expert advice, monetary compensation, or land swaps. This is a rapidly changing area of New Zealand’s law and will eventually impact every person in the country in one way or another. We will continue to release further detailed updates on the Bills as changes are made. If you would like to know more about how these changes will affect you, or you would like assistance drafting a submission (once the submission period dates are announced), please contact one of our Resource Management team members below.

Aiming to capitalise on faster-tracked consenting the Government has introduced the Fast-track Approvals Amendment Bill. While marketed at improving grocery competition through supermarket-specific consenting options, the Bill in fact provides much more nuance. The Bill has had its first reading and is referred to the Environment Select Committee for consideration. Its proposals are indicative of the Government’s quick clean-up of large-scale resource consenting and prioritisation of super market development. The significant changes are as follows: The creation of panels and their decision-making would be streamlined under the Bill. Panel conveners would have 15 working days to set up a panel after receiving notice to do so (Clause 29). Panels would then be required to make their decisions no later than 90 working days from the panel’s establishment, unless otherwise agreed by the applicant (Clause 44). This includes 10 working days for the panel to invite written comments, 20 working days to receive these comments, and a proposed maximum of 60 working days after receiving these comments to make their decisions. In saving more time the Bill will facilitate amendments to listed projects under Schedule 2 (Clause 54). The proposed Section 117A allows corrections to the project description and approximate geographical location of a listed project. These changes may only be made by the Governor-General, by Order in Council, at the Minister’s recommendation. Changes to the regional or national significance of the project, its purpose, and its location, scale and nature will influence the Minister’s recommendation. The Bill eases consultation requirements proposing that councils, iwi authorities, hapū, treaty settlement entities, and administering agencies need only be notified of a referral application or a substantive application for a listed project as opposed to being consulted (Clauses 6(2) and 14). These entities would have 20 working days to provide a response to the applicant. The introduction of Government Policy Statements look to provide a clear picture of the Government’s view on the benefits of certain regional or national infrastructure or development projects (Clause 5). Relevant statements must be considered when assessing a referral application or deciding approvals in a substantive application. Such clarity might leave little to speculation and add weight to these decisions. The Bill would allow the modification or withdrawal of approvals sought in lodged substantive applications prior to the panel making its decisions at the Minister’s discretion (Clause 42). Across the Bill decision makers are given power, with specified time constraints, to request and gather further information from the applicant where necessary. This includes information related to: a. The MfE’s determination that a referral application is complete and within scope (Clause 8); and b. The EPA’s determination that a substantive application is complete and within scope, (Clause 25). Comments by third parties on referral and substantive applications have been specifically narrowed: a. Comments on referral applications would be specifically invited from the Minister for Māori Crown Relations and the Minister for Māori Development. Comments from an administering agency or local authority would need to be relevant to the application and its decision (Clause 9). b. Comments on substantive applications would also need to be similarly relevant. Any other persons invited to comment are restricted from doing so unless an administering agency or local authority does not sufficiently address the matter or does not intend to comment on it (Clause 33). As part of its proposal a referral application would, under the Bill, need to outline not only the potential and known adverse effects of the project on the environment but also the significance of those effects (Clause 7(1)). These proposed changes may well expedite fast-track resource consenting by compressing timeframes and limiting powers. We would expect this to result in faster decision-making.

The Government recently introduced changes to the Public Works Act 1981 which provide for additional compensation for landowners who have their land acquired by agreement for certain projects. These projects are generally roading projects, based on those listed in the Fast-track Approvals Act 2024 or are identified as Roads of National Significance. This will be of particular interest to local landowners who have land that will be used by NZTA for the Takitumu Northern Link - Stage 2 as this project is subject to the new compensation provisions and negotiations are already underway with landowners. The Public Works (Critical Infrastructure) Amendment Act 2025 was passed on 26 August 2025 and is designed to speed up the land acquisition process for critical projects where a designation is in place or applied, or a resource consent is obtained. The new provisions involve: Additional compensation as an incentive for landowners to reach agreement on land acquisition, being: Recognition payment: 5% of total land value up to a maximum of $92,000 to recognise the land is being taken for critical infrastructure; Incentive payment: 15% of the total value up to a maximum of $150,000 if the landowner reaches an agreement before the Minister or local authority serves a s 23 PWA notice (being the process to compulsorily acquire the land). The landowner must give vacant possession in order to receive the additional compensation. The vacant possession date is by agreement, or within one month of the Minister or local authority giving notice that vacant possession is required. Removal of the right of objection to the Environment Court for land that is taken for projects designated as critical infrastructure. Instead, a submission process is available where a landowner can make a submission to the Minister or local authority, with an opportunity to make a second submission following the Minister or local authority’s comments. The ability to object to the valuation tribunal for compensation remains. These provision also apply for critical infrastructure projects where negotiations are already underway. There are exceptions for Māori land and an ability for agencies to opt-out of the above process and use the standard PWA process. The key benefit of these changes is that landowners who are willing parties to land acquisition are able to obtain additional compensation (up to $242,000 depending on land value) if they reach early agreement with the Minister or local authority before it issues a s 23 PWA notice for compulsory acquisition. It is therefore important to approach negotiations for land acquisition for such projects with these timeframes in mind to avoid inadvertently missing out on increased compensation. There are further reforms expected to the PWA this year, including the requirement for compulsory mediation for compensation disputes, but these are not yet in force. If you have any questions on the Public Works Act 1981 or this article, please contact our public works specialists: Bridget Bailey, Natasha van der Wal and Hilary Anderson.

We are delighted to announce the promotion of five lawyers to Senior Associate in our Tauranga team. Partner John Mackay shares, ‘These promotions are testament to the quality of our lawyers and the continued growth of the firm. Holland Beckett now has over 70 lawyers across our Bay of Plenty offices and providing them with career progression and development is a key priority for us. These promotions over several key practice areas strengthen the leadership, capability and depth of our teams.’ Bridget Bailey – Resource Management Bridget advises on all aspects of resource management and local government law, with a particular focus on consenting infrastructure and renewable electricity projects under the RMA and fast-track processes. Bridget provides pragmatic and strategic advice to public and private clients and has appeared in the Environment Court, High Court and local authority proceedings, as well as being appointed as Chair of an expert consenting panel under the Covid-19 fast track legislation. Bridget is a member of the Auckland District Law Society Environmental and Resource Management Law Committee and the RMLA. She is also a committee member Mount Maunganui Playcentre. Bridget first joined the firm 2012. In 2020 she spent 3 years as in-house legal counsel for Bay of Plenty Regional Council. She rejoined Holland Beckett in June 2023. Sophie Law – Employment and Family Sophie advises on a broad range of employment law matters, both contentious and non-contentious. Sophie has particular experience advising on personal grievance claims, disciplinary and performance processes, restructures, negotiated exits, employee investigations, and Holidays Act compliance issues. This includes assisting clients with representation in dispute resolution processes such as mediation and the Employment Relations Authority. Sophie also assists employer clients to implement proper and thorough processes and is focussed on upskilling clients through delivering bespoke training workshops. To complement her expertise in employment law, Sophie also works alongside our family law team advising on relationship property matters. Sophie began her legal career in London, including time at Magic Circle firm Slaughter and May. She joined Holland Beckett as a Solicitor in 2018. Sophie is a Trustee of He Kaupapa Kotahitanga Charitable Trust (HKKT). Jessica Fitzgerald – Corporate Jess has significant experience in a range of complex corporate matters including M&A, private equity, commercial contracts, corporate governance, and general corporate advice/structuring. She provides pragmatic results focused advice for corporate clients as well as small to medium sized businesses. She is a key team member for the firm\'s corporate clients, including Port of Tauranga, Robotics Plus and Oriens Capital. Jess first joined Holland Beckett in 2013, before moving to Vancouver, Canada, in 2016 where she worked in-house at a technology start-up primarily advising on the re-capitalisation of the company and technology contracts. Jess rejoined Holland Beckett in late 2018. Rachel Withington – Property and Commercial Rachel is an experienced property and commercial lawyer, working with private clients and their related entries across all facets of property and commercial law. A multi-disciplinary lawyer, Rachel has expertise is residential conveyancing, along with commercial, rural and horticultural conveyancing and leasing. She advises on asset protection including trust establishment, trust management and trust wind ups, and estate and succession planning. She also advises in elder law, including occupation right agreements, residential care subsidies and loans, reverse mortgages and enduring powers of attorney. Rachel advises commercial clients on sale and purchase of businesses, share sale and purchases, shareholders agreements and has specialist experience acting for Foodstuffs Members on the purchase and sale of New World, Four Square and PAK\'nSAVE stores throughout the country. Rachel began her legal career at Cooney Lees Morgan in 2014 where she worked for over 9 years, before joining Holland Beckett in early 2024. These promotions further strengthen the capabilities of Holland Beckett’s full-service team, which is set to move into new offices in October due to the growth of the firm. 

The RMA space continues to change with a constant flow of proposed reforms.  This article rounds up where things stand as at the end of July 2025. Resource Management Act 1991 The RMA remains in place, having already been amended last year through the Resource Management (Freshwater and Other Matters) Amendment Act 2024. The next round of amendments to the RMA will occur shortly, via the Resource Management Act (Consenting and Other Matters) Amendment Bill which is currently before Parliament.  The Environment Committee has reported back to Parliament on the Bill, and the Bill has passed its second reading. However, further changes are expected, with Minister Bishop announcing that an Amendment Paper will be introduced to Parliament which will stop plan reviews and changes by councils.  The Amendment Paper: Will exempt a limited number of plan changes. Examples of automatic exemptions include Streamlined Planning Processes and private plan changes (which are initiated by landowners and developers). Allow councils to apply to the Minister for the Environment for an exemption to continue or notify a new plan change. RMA replacement There is no further update at this stage on the proposed Planning Act and Natural Environment Act which are to replace the RMA.  At this stage, the available references are the Blueprint for resource management reform delivered to the Government in late 2025, and the Cabinet response paper. Minister Court has said that Government has been working tirelessly to shape up the new system for introduction by the end of the year, passing by mid-2026, and the bulk of implementation through 2027. National policy direction In early June the Government released its consultation on the national direction package comprising: Package 1: Infrastructure and Development Package 2: Primary Sector Package 3: Freshwater Submissions on that close on Sunday 27 July 2025. Package 4: Going for Housing Growth package was released later in June, and submissions on its proposals close on 17 August 2025. The policy changes are intended “to minimise the implementation burden for local government and have been developed with the new system in mind, with these changes expected to carry over and transition into it when the time comes” so the policy changes will be in force before the RMA replacement. Conclusion With so much change afoot, it\'s certainly a time for RMA users and practitioners to be agile.  If you have any questions or wish to discuss the RMA reforms, please get in touch with our resource management team.

In keeping with its promise to introduce further changes to the resource management system before the end of 2024, the Government has introduced the Resource Management (Consenting and Other System Changes) Amendment Bill (Bill).  The Bill proposes to make changes to the Resource Management Act 1991 (RMA) to advance key Government policies as part of stage three of its RMA reforms and is intended to go before Parliament for its first reading this week. These changes can be separated into five categories which are in keeping with the Government’s ‘packages’ that it announced in late August 2024. Infrastructure and Energy Consent Timeframes:  Renewable energy generation consents would be required to be decided within one year.  For geothermal and hydro schemes this timeframe must be extended if a request is made by the applicant or a specified group (such as treaty settlement groups, customary marine title groups and iwi authorities). Consent Durations: Consents for renewable energy and long-lived infrastructure have a default duration of 35 years, unless: the applicant requests a shorter period; a National Environmental Standard, National Policy Statement or National Planning Standard expressly provides for a shorter period; or it is required after consideration of submissions by relevant groups (such as treaty settlement groups, customary marine title groups and iwi authorities). Lapse:  Lapse periods for renewable energy projects have doubled from five years to 10 years. Designating Authorities: Requirements and costs for designating authorities are simplified by restricting when an assessment of alternatives is required and simplifying other assessments and information requirements. Port Coastal Permits: Each port company’s coastal permit will be automatically extended to 30 September 2046 (the conditions of which will also be extended automatically).  A port company’s permit must be reviewed by the relevant consenting authority no later than 30 September 2027 to identify: Any adverse environmental effects of the occupation of the coastal marine area; and Whether conditions need to be imposed or amended to avoid, remedy or mitigate those effects. Requiring Authority Status: Port companies are to be given requiring authority status for landward operations. Discharges:  Amendments to s 70 RMA are proposed to amend the scope of discharge rules to enable regional councils to include permitted activity discharge rules where performance standards will contribute to a reduction in adverse effects over time. Housing Growth Medium Density Residential Standards: Flexibility will be provided to territorial authorities to enable them to opt out of the Medium Density Residential Standards if they demonstrate that they have at least 30 years of planned housing growth capacity.  This exemption applies even if the medium density residential standards have since been incorporated into that territorial authority’s district plan.  Specified territorial authorities are no longer required to incorporate the medium density residential standards into residential zones. Minister’s Powers: The Bill provides the Minister for the Environment with new powers to ensure compliance with national direction, including housing and business development assessments.  The Minister for the Environment can direct councils to prepare or amend documents in accordance with national direction and to direct what type of plan change is used to give effect to national direction. Heritage Buildings:  The process for listing/delisting heritage buildings and structures has been simplified. Farming Fishing:  The Bill defines the interaction between the RMA and fishing activities under the Fisheries Act 1996.  The intent is to ensure that where new rules are introduced, they go through a pre-notification process with the Director-General of the Ministry for Primary Industries, have their effects on fishing assessed, do not raise new restrictions in unexpected areas (reduced scope of submissions), do not add to the regulatory burden on fishers, and do not apply to Māori customary non-commercial fishing rights. Farm Plan: Part 9A of the RMA is amended to make farm plan certification and audit services more practical and cost effective by allowing industry organisations to deliver those services. Wood Processing: To reduce delays in consenting, the Bill requires resource consents for wood processing facilities to be decided within one year of application. Natural Hazards Plan Changes: Any plan changes introducing new natural hazard rules will have immediate legal effect. Consenting: The Bill strengthens a consenting authorities’ powers to decline a land use consent application if it considers that the activity will create a significant risk from natural hazards, increase an existing risk to become significant, or increase an existing significant risk. Emergency Response: New powers are to be given to the Governor General (on the recommendation of the Minister) to make regulations that respond to natural hazards and enable recovery efforts. System Improvements Penalties: Penalties for offences under the RMA are proposed to be changed as follows: For private individuals – maximum imprisonment decreased from two years to 18 months and maximum fine increased from $300,000 to $10,000,000. For a non-natural person (e.g. a company) the fine is increased from $600,000 to $10,000,000. Insurance: The Bill removes the ability for parties to insure against penalties and makes it unlawful. Fines are introduced for persons who enter into insurance contracts to indemnify parties for offences under the RMA (a maximum of $50,000 for an individual and $250,000 for any other person). Clarity: Changes are proposed to simplify the consenting regime by clarifying the scope of further information requests, allowing applicants to review consent conditions before a decision and enables cost recovery for consent reviews due to national direction. Conservation Act 1987: The Bill proposes changes to the Conservation Act 1987 to make technical amendments to the Department of Conservation functions to align their ability to manage discharges with the proposed changes to the RMA. 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.

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.

Last week, the Government has announced that two new laws are to be developed to replace the Resource Management Act 1991 (RMA), with the enjoyment of property rights as their guiding principle. Replacement of the RMA is part of the final phase (phase three) of the Government’s reform of our resource management system. The Government’s intention with a property rights focused system is to allow people to do more on their own property more easily, so long as it does not harm others.  Where harm to others results from an activity, the intention is that the new system should step in to protect a property owner’s rights from being compromised by unreasonable activities occurring around them. Cabinet has agreed on ten core design features of the new resource management system.  These features are still at a high level and more detail will be required before the effectiveness of these methods can be assessed in achieving the Government’s aspirations.  The ten features are as follows: Narrow the scope of the resource management system to focus on managing actual effects on the environment. Establish two acts with clear and distinct purposes – one to manage environmental effects arising from activities and the other to enable urban development and infrastructure. Strengthen and clarify the role of environmental limits and how those are to be developed. Provide for greater use of national standards to reduce the need for resource consents and simplify council plans. Shift the focus away from consenting before activities can get underway, and towards compliance, monitoring and enforcement of activities’ compliance with national standards. Use spatial planning and a simplified design process to lower the cost of infrastructure. Realise efficiencies by requiring one regulation plan per region, jointly prepared by regional and district councils. Provide for a rapid low cost resolution of disputes between neighbours and between property owners and councils, with the potential for a new Planning Tribunal (or equivalent). Uphold Treaty of Waitangi settlements and the Crown’s obligations. Provide faster and cheaper processes with less reliance on litigation, contained within shorter and simpler legislation that is more accessible. An expert advisory group has been appointed to assist with the development of the new system, whose expertise includes resource management law, planning and te ao Māori.  The Government expects key aspects of the new system to go before Cabinet for agreement before the end of the year with the intention for legislation to be passed before the next election.

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.

The Government has announced its intention to make several changes to the Fast-track Approvals Bill, which is currently with the Environment Select Committee for consideration. Cabinet has recommended the following five changes are made, and the Committee will decide whether or not to accept them: The final decision on the granting of fast-track projects now sit with an expert panel and not the Ministers for Infrastructure, Regional Development and Transport. Giving Ministers final approval of applications, even if an expert panel recommended otherwise, was the most controversial aspect of the Bill and its removal is a significant change to the Bill as proposed.  Providing the expert consenting panel with decision-making powers aligns the Bill with the process under the previous Labour Government’s COVID-19 (Fast-track Consenting) Act 2020. Fast-track projects will now be referred to an expert panel by the Minister for Infrastructure alone who will be required to consult the Minister for the Environment and other relevant portfolio ministers as part of that referral process. However, our understanding is that fast-track projects listed in Schedule 2A of the Bill will still be able to apply directly to an expert panel for consideration. Timeframes for comments at the referral and expert panel stages will also be extended to give parties, including those impacted by a proposed project, more time to provide comments. Expert panels will be appointed by the Government and will be required to include: Those with expertise in environmental matters; Māori development and te ao Māori expertise in place of mātauranga Māori; and An iwi authority representative (only when required by Te Tiriti o Waitangi settlements). Applicants will be required to include information on previous decisions by approving authorities, including previous Court decisions, in their applications for the referring Minister to consider. Minister Bishop also provided a breakdown of the 384 projects that had applied to be listed in the Bill.  Whilst not providing specific details of the projects, he noted that 18% of the applications related to renewable energy, 24% related to infrastructure and 40% related to housing and urban development.  It is proposed that the fast-track projects to be listed in either Schedule 2A or B will be included in a paper that will be put before Parliament once the Bill returns to Parliament later this year. The Independent Advisory Group has now provided a report to the Ministers with recommendations on projects to include in the Bill and Cabinet will now consider these in the coming months. While these changes will remove the most contentious aspect of the Bill and will be more consistent with current fast-track legislation, we expect the Bill will continue to receive close scrutiny from all stakeholder groups as the Government continues with its wider reforms to the Resource Management Act 1991. Holland Beckett is experienced with fast-track consenting processes and advising clients on the current reforms to the Resource Management Act 1991.  If you have any questions or would like to know more about anything in this article, please do not hesitate to contact the authors.

Today the Minister for Housing, Hon Christopher Bishop, has announced new housing growth targets for Aotearoa’s cities and its plan to make it easier for new housing to go “up and out” to increase housing supply. The Going for Housing Growth policy (GHG) aspires to address the housing crisis in Aotearoa by enabling more houses to be built through its “three pillars” approach which is designed to: Free up land for urban development, including removing unnecessary planning barriers; Improve infrastructure funding and financing to support urban growth; and Provide incentives for communities and councils to support growth. The first six changes of that approach as set out by Minister Bishop are: The establishment of housing growth targets for tier one and two councils. These councils will be required to live-zone feasible development capacity to provide for at least 30 years of housing demand at any one time (this is a notable difference from the current minimum requirement to live-zone 3 years of feasible development capacity). New rules requiring cities to be allowed to expand outwards at the urban fringe. Councils are prohibited from imposing rural-urban boundary lines in planning documents (but can still have rurally zoned land). Strengthening of the intensification provisions in the National Policy Statement for Urban Development to ensure that housing capacity is enabled in locations where there is demand and access to services, transport and businesses. New rules requiring councils to enable mixed-use development in cities. Activities such as cafes, dairies and other retail stores must be enabled in urban areas by tier one and two councils. The abolition of minimum floor area and balcony requirements. Councils cannot set minimum floor area requirements for apartments and other houses, or require balconies. New provisions making the medium density residential standards optional for councils. The GHG is consistent with the Government’s stance to enable housing supply and its objective to “slash the red tape” associated with development.  No doubt local authorities will need to grapple with how they will implement these changes in a constantly evolving resource management landscape, which will be no small task. If you have any questions about what these changes mean for you, please feel free to contact us.

The fast-track consenting regime proposed by the National/ACT/NZ First coalition government was introduced to Parliament on 7 March 2024. The most awaited aspect of the Fast-track Approvals Bill – the list of projects to be fast-tracked – is blank at this stage. A Fast-track Advisory Group of experts is to be established in the coming weeks to advise Ministers on what projects should be included in the legislation, following which the projects will be inserted into the schedules. The key aspects of the Fast-track Approvals Bill are as follows. Purpose The Bill’s purpose is to provide a fast-track decision-making process that facilitates the delivery of infrastructure and development projects with significant regional or national benefits. The Bill’s purpose has no reference to continuing to promote the sustainable management of natural and physical resources, unlike the COVID-19 Recovery (Fast-track Consenting) Act 2020 (FTA). Processes covered The Bill covers a much greater range of consents/approvals. In addition to resource consents and notices of requirement for designations under the RMA it includes consents/approvals under the Conservation Act 1987, Wildlife Act 1953, Freshwater Fisheries Regulations 1983, Reserves Act 1977, Heritage New Zealand Pouhere Taonga Act 2014, Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, Crown Minerals Act 1991, and Fisheries Act 1996. The Bill also makes a change to Environment Court processes under the Public Works Act 1981 for projects dealt with under the Bill. The FTA only dealt with resource consents and notices of requirement for designations under the RMA. Treaty of Waitangi The Bill requires persons exercising functions under it to act in accordance with Treaty settlements and recognised customary rights. The Bill does not contain a requirement to act in a manner that is consistent with the principles of the Treaty of Waitangi, unlike the FTA. Projects The Bill provides for two types of listed projects, and referred projects. The two types of listed projects will be: Part A – listed projects that can be referred straight to an Expert Panel. Part B – listed projects that may be considered by the joint Ministers for referral to an Expert Panel. The Bill contains criteria for being a referred project including whether the project will have significant regional or national benefits. An example of projects that may qualify include projects that will increase the supply of housing, address housing needs, or contribute to a well-functioning urban environment. Projects are referred to Expert Panels for consideration. Expert Panel The Expert Panel will be set up in a similar way to Expert Consenting Panels under the FTA. However, Expert Panels will only be making recommendations to the ‘joint Ministers’ who will make the decisions. The joint Ministers For the most part, the responsible ‘joint Ministers’ under the Bill are the Ministers for Infrastructure, Regional Development and Transport. This is a move away from the Ministers for the Environment and Conservation under the FTA, although the latter will join the others for Wildlife Act matters. Appeal rights Appeal rights are available to the High Court on a point of law only. Rights of judicial review are not affected by the Bill. Select committee process The Bill has a strong focus on infrastructure and development and will be controversial. It has been referred to the Environment Committee for a select committee process and is open for submissions until 19 April 2024. Please get in touch if you would like to make a submission or discuss things further.

On 7 February 2024 the Supreme Court released its decision in Smith v Fonterra and unanimously agreed to not strike out Mr Smith’s claims against seven of New Zealand’s largest green house gas (GHG) emitting companies. The threshold to strike out a claim is high and requires that there be no reasonably arguable claim.  Like any other plaintiff with a tenable claim, Mr Smith will be entitled to have his case heard. Background The case concerned claims by Mr Smith, an iwi leader and elder of Ngāpuhi and Ngāti Kahu and a climate change spokesperson for the Iwi Chairs Forum, against Fonterra, Genesis Energy, Dairy Holdings Ltd, NZ Steel Ltd, Z Energy, Channel Infrastructure and BT Mining (Respondents).  The claims asserted that the Respondents’ GHG emissions have contributed and will continue to contribute to global warming.  This has caused and will cause harm to Mr Smith, his whānau, his descendants and others. Mr Smith’s claim comprised of three causes of action: Public nuisance; Negligence; and A proposed new tort involving a duty to cease contributing to damage to the climate system. The Respondents applied to strike out Mr Smith’s proceeding on the basis that it raises no reasonably arguable cause of action. The High Court struck out Mr Smith’s claims in public nuisance and negligence in 2020, but declined to strike out his claim based on the proposed new tort.  The Court of Appeal went further and struck out all three causes of action. The Supreme Court’s decision The Supreme Court found that it was in no position to find that Mr Smith’s causes of action were untenable.  It emphasised the high threshold for a strike out application noting that “pre-emptive elimination of proceedings is only appropriate where it can be said that whatever the facts proved, or arguments and policy considerations advanced at trial, a case is bound to fail”. The common law has not previously grappled with a crisis as all-embracing as climate change.  However, the Supreme Court stated that this area of common law must develop “in the fertile field of trial, not on the barren rocks of a strike out application”. Can Tikanga inform the formulation of tort claims? Mr Smith claims, in accordance with tikanga, a whakapapa (genealogical) and whanaungatanga (kinship) relationship to the whenua (land), wai (fresh water) and moana (sea) around his land.  His claim is that the respondents contributed to climate change effects that caused and will cause ongoing injury to the customary, cultural, historical, spiritual and nutritional values associated with these places.  His tikanga based connection with these places provides the foundation for the claim that an injury to place is also an injury to himself, his whānau and descendants. The Supreme Court stated that whatever the cause of action, the trial court will need to grapple with the fact that Mr Smith purports to bring proceedings not merely as an alleged proprietor who has suffered loss, but also as a kaitiaki acting on behalf of the whenua, wai and moana.  It must consider some tikanga concepts of loss that are neither physical nor economic. Addressing and assessing matters of tikanga simply cannot be avoided. Mr Smith’s case can now proceed to a full trial in the High Court.

Following the recent storm and flooding events, Tauranga City Council (TCC) has undertaken a review of its slope hazard maps and some landowners may have received letters from TCC advising that their property is now subject to a ‘slope hazard’. Many landowners are concerned about what this means for them and their property. Legal Basis for Review In short, TCC is required by the Resource Management Act 1991 (RMA) to identify areas potentially at risk from natural hazards and has undertaken this mapping in order to meet its obligations under the Bay of Plenty Regional Policy Statement to manage natural hazard risk and its Infrastructure Development Code. It has always had this obligation and has now undertaken land stability mapping specifically to determine slope hazards as a priority. The RMA states that “the management of significant risks from natural hazards” is a matter of national importance, which decision makers must recognise and provide for. “Natural hazards” is defined in the RMA as including erosion and land slippage. TCC also has a legal obligation to record special characteristics of the land (including land slippage) on a LIM under s44A of the Local Government Official Information and Meetings Act 1987 which aren’t apparent from the City Plan, which includes natural hazard maps of this kind. What Does this Mean for You? Legally, the new maps will have implications for a landowner’s ability to build or undertake any further development of their property. The Building Act 2004 (BA) provides that a council must refuse to grant a building consent for construction of a building or major alterations to a building if the land is subject to (or is likely to be subject to) one or more natural hazards or the building work is likely to accelerate, worsen, or result in a natural hazard. A building consent may only be granted for work on land subject to a natural hazard on the basis that adequate provision is made to protect the land, building work, or other properties from the natural hazard. This means that in order to obtain a building consent, landowners will need to prove that the building work will not worsen, accelerate or cause a natural hazard and you may end up with a notice on the title recording the natural hazard risk. If building consent is granted for land identified as being subject to a natural hazard, the BA requires notice of the building consent and the natural risk to be registered on the property’s record of title. You can ascertain if your property is subject to a slope hazard by using TCC’s mapping tool (Mapi) (as per the image below). If you are intending to purchase a property it is important that you seek legal advice regarding any potential slope hazard that may affect the land. If you require assistance we are able to assist you with any of you due diligence enquiries. If you are concerned about your property being subject to a slope hazard, and require legal advice regarding the same, please feel free to contact us.

The National Built and Environment Act 2023 (NBEA) and the Spatial Planning Act 2023 (SPA) were given Royal Assent on 24 August 2023 and will repeal and replace the Resource Management Act 1991 (RMA). While the complete transition to the new system is expected to take more than a decade, parts of the NBEA are already in force: Fast Track Consenting The NBEA’s new fast track consenting process has now come into effect. Applicants can now seek ministerial referral of projects that meet a set of eligibility criteria (which relate to infrastructure and housing activities). If the referral is accepted, applicants can apply to the Environmental Protection Authority (EPA) for resource consent. Expert consenting panels then decide on the substantive applications and may set conditions on projects before they go ahead. Compliance, Management and Enforcement New compliance and enforcement tools have come into force and include the following: fines for non-compliance with consent conditions have increased: - $300,000.00 to $1,000,000.00 for individuals; and - $600,000.00 to $10,000,000.00 for companies. changes to abatement notice provisions which allow abatement notices to be issued for a breach of consent notices and covenants imposed by the conditions of a resource consent. new powers in relation to excessive noise which permit enforcement officers to issue an excessive noise direction which requires the noise to be immediately reduced to a reasonable level. Contaminated Land The ‘polluter pays’ principle applies from the day after Royal Assent and sets a presumption that polluters are to bear the costs of managing pollution to prevent damage to human health and the environment in relation to contaminated land. The EPA and the relevant local authority are empowered to recover all actual and reasonable costs from the polluter. Shorter Term for Freshwater Resource Consents Most new freshwater-related consents will have a new time limit on how long they last. The aim is to ensure freshwater resources are not locked in for long periods before regions make decisions in their NBE plans about how to allocate freshwater in their areas. The maximum duration applies to resource consents to take, use, dam, or divert freshwater. It also applies to consents for discharging any contaminants into freshwater or onto land where it can enter freshwater. The maximum duration can be no longer the 5 years after allocation methods in a region’s first NBE plan take effect. Once the transition to the new system has been completed, then the maximum duration will be 10 years (rather than 35 years under the RMA). Freshwater Planning Instruments The NBEA amends section 80A of the RMA to widen the meaning of a ‘freshwater planning instrument’ and to change what instruments must (or may) use the freshwater planning process. Aquaculture The Minister for Aquaculture now has extended powers to suspend resource applications, make regulations and allocate aquaculture space. However, following the recent election and a new National led government, we may in store for further changes to the new system (including the new system being scrapped altogether) before the end of the year.

The NPS-HPL came into effect on 17 October 2022. Since then, two issues have been identified about its restrictions on non-land-based uses and development. These are: The lack of a clear consent pathway for construction of new “specified infrastructure” (which includes renewable energy, such as solar farms) on highly productive land (HPL) in clause 3.9(2)(j)(i) of the NPS-HPL; and The lack of a clear consent pathway for development and relocation of intensive indoor primary production and greenhouses on HPL. The discussion document can be found here: Potential-amendments-to-the-NPS-HPL-discussion-document.pdf (environment.govt.nz) Consent Pathway for “Specified Infrastructure” The proposed change is to clause 3.9 of the NPS-HPL which states that: 3.9(2) A use or development of HPL is inappropriate except where at least one of the following applies to the use or development… (j) It is associated with one of the following, and there is a functional or operational need for the use or development to be on the HPL: (i) The maintenance, operation, upgrade, or expansion of specified infrastructure: (emphasis added) As currently worded, the NPS-HPL does not provide a clear consent pathway for construction of specified infrastructure on HPL, only its “maintenance, operation, upgrade or expansion”’. This limits the ability to construct new specified infrastructure on HPL at pace and limits certain providers (such as renewable energy generators or installers of fibre who are not requiring authorities). The Government has identified two options to address this issue and has indicated that it considers that the amendment in the second option is necessary. The options are as follows: Maintain the status quo which would allow time for the NPS-HPL to be given effect to in plans, policy statements and consent decisions (this would likely take some time); or Amend clause 3.9(j)(i) to include the word ‘construction’. The amendment suggested in the second option (which is the Government’s preferred option) would provide a clear consent pathway for construction of new specified infrastructure on HPL. Consent Pathway for Intensive Indoor Primary Production and Greenhouses The NPS-HPL also does not provide for a clear consent pathway for development of new intensive indoor primary production and greenhouses. To address this issue the Government has suggested that the NPS-HPL could be amended to provide for a pathway for developing and relocating intensive indoor primary productions on HPL, but has identified that this option is misaligned with the policy objectives of the NPS-HPL. No preference was given to this option over keeping the status quo. The Government is seeking submissions and feedback on the proposed options. Submissions close on 31 October 2023. If you have any queries regarding the proposed amendments to the NPS-HPL or if you wish to make a submission please do not hesitate to contact us.

2020 certainly isn’t the year we thought it would be and the Covid-19 Recovery (Fast-track Consenting) Act 2020 (the Act) definitely wasn’t on the Government’s legislative agenda back in January. The Act was passed under urgency and is part of the government’s economic response to Covid-19, promoting development as a way to stimulate the economy. For developers, the Act offers an opportunity to fast track projects in the pipeline that would otherwise have had to go through lengthy consenting processes under the Resource Management Act 1991 (RMA). The Act sets out a two stage process for obtaining consent under its provisions. To get to the second stage, a project must either be listed in the Act, or become a ‘referred project’. As the projects listed in the Act are all either government-led or government-supported, developers wanting to make use of fast tracked consenting need to go through the process set out below to obtain ‘referred project’ status. Step 1 – become a referred project To become a referred project, an application must be made to the Minister for the Environment (the Minister). This application must include certain information about the project, although at this stage information only needs to be provided to a general level of detail, sufficient to inform the Minister’s decision. The Minister will consider in making their decision whether the project helps to achieve the purpose of the Act. The Act’s purpose is to urgently promote employment to support New Zealand’s recovery from the economic and social impacts of COVID-19 and to support the certainty of ongoing investment across New Zealand, while continuing to promote the sustainable management of natural and physical resources. There are also certain criteria set out in the Act that projects must meet. The Minister is required at this stage to obtain a report from the Office for Maori Crown Relations that identifies relevant Iwi and Treaty settlement matters. They must also invite written comments from the relevant local authorities, other relevant Ministers and anyone else they deem appropriate – comments must be provided within 10 days. This short time frame implies that referral decisions can be expected relatively promptly, although no specific time period is set. Step 2 – get approval from the expert consenting panel If the Minister makes the decision to refer the project (or part of it which they are also allowed to do), an Order in Council will be made for the referral. An application can then be made by the developer to the Environmental Protection Authority (EPA), which will be more akin to a standard resource consent application in terms of the level of documentation required. Once this application is made, an expert consenting panel will be appointed for the project with secretariat support from the EPA. This panel must be chaired by a judge or retired judge and include one person nominated by the relevant local authority and another nominated by relevant iwi authorities. The panel will decide whether or not the project receives consent, considering the documents provided to support the application,  the purposes of the RMA and the Act, relevant national directions, regional policy statements and plans. Public notification of applications is not permitted, although the panel is required to invite certain individuals and bodies to provide comments including ministers, iwi authorities and organisations such as Greenpeace and the New Zealand Fish and Game Council. Comments must be received within 10 days of the invitation being made and the panel must make its final decision and produce a written report no later than 25 days after the date for receiving comments. There are limited opportunities for this timescale to be extended, and a decision could be issued at minimum 45 days of an application being lodged. Appeal rights against decisions of the panel are limited to questions of law. All of the above results in a process which is significantly quicker than the standard resource consent process and with much less public involvement. It remains to be seen how challenging it will be to obtain approval at each stage of the process, but at face value the Act represents a great opportunity for developers to get pipeline projects breaking ground.

The COVID-19 Recovery (Fast-Track Consenting) Bill was introduced on 16 June 2020 in the Government’s attempt to mitigate the effects of COVID-19. The Bill aims to bypass the Resource Management Act 1991 in order to speed up the consenting process for projects. Parliament’s last sitting day is 6 August in preparation for the 19 September election. As such, the Bill is likely to be passed prior to this in an urgent manner, seen before in circumstances such as the Christchurch and Kaikōura earthquakes. The Bill enables two categories of projects to access the fast-track consenting process: Listed projects – these are specific Government-led projects listed in schedule 2 of the Bill, such as road works in conjunction with Kotahi Waka (NZTA). None of these are located in the Bay of Plenty. Referred projects – these are projects which have applied for eligibility to access the fast-track process. The process for climbing aboard the fast-track consent train is two-fold. Referred Project: Initially, a project must become a ‘referred project’. This involves making an application to the Minister for the Environment to decide on whether a project should be referred. The application must go to both the Minister for the Environment and the Minister for Conservation for a joint decision if the project is in the coastal marine area. Fundamentally, the project must help to achieve the purpose of the Bill. In determining whether it does, the Minister may consider a range of factors, including the economic benefits, significant adverse environmental effects and whether or not the project would likely progress faster using the process. The Bill precludes activities described as prohibited under a plan or national environment standard or those that may be inconsistent with customary rights. That said, the Ministers still have wide discretion, so there is some ambiguity surrounding the grounds for eligibility. Expert Consenting Panel: If deemed eligible, the application is referred to an expert consenting panel for consideration. The panel is chaired by an Environment Court Judge or suitably qualified lawyer and must also include nominated members from the local authority and Iwi authority. There are no notification requirements here, although the panel must invite relevant parties (specified in the legislation) to comment on the application. A response from those parties is required within 10 days from notification. The Panel must reach a decision within 25 days of the last comment being received, however, there is scope to extend this to 50 days for larger projects. There is also no requirement for hearings and no appeals to the Environment Court. Appeals to the High Court are on a point of law only. There is no time restriction on the Minister when deciding whether to give approval for a project to be referred and that may cause delays. However, for those projects successfully referred, the fast-track process should prove to be more efficient than the standard RMA process.