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Resource Management Act – Evolution or Revolution?

As many of you will be aware, the Resource Management Act Legislation Amendment Bill was introduced into the House last week. The Bill has been a long time coming as political concerns over the controversial changes to sections 6 and 7 resulted in ongoing delays, and these changes have now been dropped (with the exception of natural hazards as a section 6 matter). The Bill still presents a significant change to current planning practice with about 40 proposals focused on improving national consistency and direction, creating a more responsive plan-making system, and further amendments to simplify and streamline consenting processes.

We believe the Bill has potential to deliver real benefits in certain areas. 4Sight fully supports the general intent to improve consistency where there is unnecessary variation to provide more user-friendly plans and let councils, communities (and applicants) focus on the things that matter. We also support changes aimed at improving the efficiency and certainty RMA processes both from a regulatory and business perceptive. However, as always, the ‘devil is in the detail’ when it comes to legislation and there are a number of changes which could lead to some real issues in practice. Our team will continue to monitor progress of the Bill through the Select Committee process with a particular focus on both those areas with the most implications (both positive and negative) for resource management practice, including those below.

Improving National Direction - National Planning Template

The concept of a national planning template has been around for some time, with a high level of support from most sectors, and it is good to finally see the Government’s commitment to its development. Our team has been fortunate enough to have been involved both in the development of this concept and some initial research of urban plan provisions to identify the real core provisions. We believe the national planning template has potential to deliver real benefits by making plans more user-friendly and consistent (both in terms of structure and terminology/definitions) and by standardising common provisions while allowing local variation where this is warranted. However, the template will need to be developed in an informed, considered and collaborative manner with the input of councils, practitioners and businesses which is to be done in two years so this is definitely a space to watch.

Improving National Direction- Regulation-Making Power

To add to the Ministers suite of intervention powers, the Bill includes a new Ministerial regulation-making power which would allow the Minister, among other things, to:

Permit specific land uses to avoid unreasonable and unnecessary restrictions on land (i.e. essentially prescribe permitted activities); and

Prohibit and remove council planning provisions that in the Ministers opinion duplicate the functions of other legislation or impose unnecessary restrictions on land use.

Obviously, there is considerable discretion in what constitutes “unreasonable restrictions” and this power would enable the Minister to override plan provisions that have gone through a full public process with considerable input and investment from council, business and the community. We, therefore, consider that there needs to be adequate safeguards in place to ensure this power is used appropriately. In our view, this will require robust analysis and advice from officials as the regulation-making process only provides limited involvement from the pubic, councils and iwi.

Improving Plan Making - the Iwi Participation Arrangement

Another area that 4Sight staff have been involved in which we believe has potential to deliver real benefits are the proposals aimed at improving the role of iwi in plan-making. Practice is clearly patchy in this area and the changes aim to make councils engage more meaningfully, transparently and consistently with iwi when preparing plans/policy statements. The changes will require councils to document how the views of iwi were considered through their section 32 analysis and also to invite iwi to enter into a formal ‘Iwi Participation Arrangement’ that clarifies how each party will work together in plan-making processes.

The effectiveness of these proposals in practice will, however, be determined by the willingness and capacity of each party to develop and agree on a robust, fit-for-purpose ‘Iwi Participation Arrangement’. In our view, Central Government support in the form of training, guidance and more hand’s on interventions will be needed to ensure these amendments are effective which should form part of a wider implementation package for the reforms.

Improving Plan Making - Streamlined Planning Process

The Bill introduces a new plan-making track, the ‘Streamlined Planning Process’. This is another new Ministerial power that allows Councils to request to the Minister that provided certain criteria are met. such as urgency and community needs, they can prepare their plan without using the formal Schedule 1 process. While the streamlined process does provide some public input, such as the requirement for some consultation and submissions, there is no requirement for a public hearing or rights of appeal which represents a significant departure from the standard plan-making process under the RMA.

This process has been designed to accommodate unique and pressing situations such as the Auckland Unitary Plan and Christchurch Replacement District Plan where the Schedule 1 process would have been too slow. This rationale is understood and supported. However, there is also a risk that Councils actively seek to use this streamlined process motivated by the reduced costs and timeframes that will inevitably result. Rules affect people’s lives and the quality of our environment which is why the plan-making process needs to be suitably robust. This is another area that will need to be monitored to ensure the power is exercised in an appropriate and considered way where special circumstances really exist; not just in the interest of saving time and costs

4Sight looks forward to seeing how the Bill progresses through the Select Committee process and how the range of changes may impact on and improve planning practice in the future.

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