As at the time of writing, there appears to be a strong chance of a change of government following the election. One of many implications of this would be the early repeal of the recently passed Natural and Built Environment Act (‘NBEA’), and its companion the Spatial Planning Act (‘SPA’). 

The NBEA, as discussed in our earlier article here has only recently been passed, and the ink barely dried on its 945 pages. However, National’s ‘100 day action plan’ includes a commitment to ‘Repeal Labour’s RMA 2.0 legislation and introduce a fast-track consenting regime.’

Repealing these Acts would have almost no immediate effect on the average resource user, as only a small handful of changes have come into force at the present time (and it would take 7-10 years for the NBEA regime to be fully implemented and drive day to day decision making). 

These reforms (the NBEA and SPA) represent the culmination of several years’ work (over nearly all of the last parliamentary term), following the release of the Randerson Report in July 2020. Some will see complete repeal (rather than amendment) of the new Acts as ‘throwing the baby out with the bathwater’. However, National has argued that keeping the reforms simply because of the work that went into them would be to embrace the ‘sunk cost fallacy’, and that it would be better to start afresh.

Regardless of your view on that, the question remains: if the recent reforms are to be undone, what should replace them?  So far National has indicated an intention to introduce a fast track consenting regime and revise certain national policy statements (such as for renewables), before embarking on a longer term programme of work to repeal and replace the RMA.

What aspects of the reforms are worth keeping?

In this article we outline the key elements of the reforms that we think should either remain, or be resurrected in some form as part of whatever comes next.

1. Spatial Planning 

While various councils have produced non-statutory ‘spatial plans’ in the past, the SPA has been the first earnest legislative attempt at long term (30 year) planning for land use and infrastructure development, with links to functions under other legislation such as the Land Transport management Act and Local Government Act. 

This, in our view, was one of the most promising components of the reforms, and should be seen as a new part of the system rather than a replacement for the RMA (which is effectively what the NBEA is). While National has had plenty of criticisms of the NBEA (some of which we agree with), there have been few specifically aimed at the SPA. It therefore risks being the proverbial baby thrown out with the bathwater.

We suggest the SPA could simply be amended to work alongside the RMA rather than the NBEA, or at the very least should be brought back in some form as part of the new work programme. 

2. Fast track consenting

This one might be uncontroversial (and a relatively sure thing), but with the expiry of the COVID Fast Track legislation earlier this year we see an ongoing need for a fast track consenting regime for urgent projects such as infrastructure (i.e. without merits appeals or the need for a hearing in all cases). This is a feature of the NBEA and also part of National’s short term reform plans (either alongside, or as part of, the RMA).

However, it is important that any new fast track regime actually deliver time savings rather than add additional hurdles, and that it provide a more enabling framework for applications rather than just a different process. 

3. Better integrated national direction

A lack of helpful or coherent ‘national direction’ (i.e. national level policy statements and standards) has been a perennial criticism of the RMA since at least the early 2000s. Some would go so far as to say it has not so much been the RMA, which is merely a legislative framework, than its implementation that has been the problem – and that without clearer national direction a replacement system will fare no better. 

Currently the national direction we do have is replete with directive ‘avoidance’ policies (e.g. the NZ Coastal Policy Statement) or weakly expressed ‘enabling’ policies (e.g. the NPS on Renewable Electricity). We see a clear need to shift the balance if NZ Inc is to meet its renewable energy targets or address the infrastructure deficit. The challenge of course lies in resolving tensions between competing policies, without too many more visits to the Supreme Court. 

Combining national direction in one place, in an integrated way, is fundamentally a good idea. This was the project of the National Planning Framework (‘NPF’) under the NBEA. However, there is no reason why a version of the NPF could not be progressed under the RMA in the form of ‘National Planning Standards’, or a combined NES/NPS. The amendments required to the RMA to enable this would be minor, if any. 

4. A shift from effects to outcomes

One of the key promises of the reforms as envisaged in the Randerson Report was a shift away from managing effects, towards achieving outcomes. In other words, thinking about how we want the world to be 30-50 years from now and working backwards from there, rather than worrying about the effects of incremental change today. The Report argued (we think accurately) that the current RMA system has a tendency towards ‘status quo bias’, which often stands in the way of progress.

This transition was (in our view) imperfectly executed in the NBEA, which is still fairly effects-based, but we think the idea has merit and should be revisited as part of any further round of reforms (or via amendments to the RMA now). 

5. Consideration of climate change mitigation 

National and Act have argued that there is no role for climate change mitigation (as opposed to adaptation) in our national planning laws – on the basis that mitigation can be addressed by the Emissions Trading Scheme (and the associated financial incentives) alone. We take a slightly different view. 

At this stage there appears to be little risk that New Zealand (or any other country) will be doing too much to respond to climate change; it is often characterised as a ‘wicked problem’ (multidimensional challenge) that requires a multi-pronged approach to address. While we can see that the ETS (and a higher carbon price) can drive things like the uptake of electric vehicles, it is more difficult to see how the ETS (on its own) can drive integrated land use, compact residential development, and effective public transport. These require multiple actors, and individual house-hunters can only buy what the market offers. 

Accordingly, we see a complementary role for the planning system, including in terms of enabling renewable energy and other climate friendly development (consistent with Emissions Reduction Plans). What is needed however (and not yet available) is clear national policy guidance on when and how effects on climate change should be taken into account, in order to prevent over-regulation or perverse outcomes. Overall, an integrated approach is required.