The Natural and Built Environment Act 2023 (NBEA) and its partner, the Spatial Planning Act 2023 (SPA), both passed their third reading on 16 August 2023.  

There is much that can (and no doubt will) be said about the merits of the new regime. The main impetus for reform was dissatisfaction with the Resource Management Act (RMA), which the Minister for the Environment has said “takes too long, costs too much, and has neither adequately protected the natural environment, nor enabled development where needed”.  

While many practitioners would agree with that assessment, they may have different views as to whether the fault lies with the architecture of the RMA itself, or its implementation through national policy direction and the way these instruments are implemented by local government.

In any case, the reforms set out to: 

• improve system efficiency and effectiveness, 
• better enable development within limits, 
• protect and, where necessary, restore the environment, 
• give effect to the principles of Te Tiriti o Waitangi, and 
• better prepare for adapting to climate change and mitigating emissions. 

Whether the NBEA in its current form achieves those lofty (and slightly conflicting) goals is a matter for debate. While we have our doubts, it will be impossible to know for sure until the NBEA and SPA have been fully implemented and had time to ‘bed in’ (perhaps some twenty years from now).  

Much like the RMA, the success or otherwise of these reforms will be heavily influenced by the quality, foresight, and pragmatism of their implementation through the national planning framework (NPF), regional spatial strategies, and NBEA plans by local government. 

However, in our view there is very little prospect of the NBEA being fully implemented in its current form, for two reasons:

• In the short term, the National Party has reaffirmed its commitment to repealing the NBEA ‘by Christmas’; and 
• Even if it is not repealed, the NBEA will not be fully implemented (i.e. applied to day to day consenting decisions, and affecting activities ‘on the ground’) for a good 7-10 years. We expect that even a series of Labour-led governments would make substantial changes to the Act over that timeframe. 

Accordingly, this article focuses not on the detail of the reforms, but on the next steps from here and when the various components are expected to apply in a real-world way. In other words, what do you need to know now, in order to navigate the new system?

A long transition

Rather than taking over from the RMA immediately, the NBEA provides for most existing RMA instruments and processes to continue in effect until replacements are developed. This includes, in sequence, development of: 

1. The NPF; 
2. Regional spatial strategies (RSS) (under the Spatial Planning Act); and 
3. NBEA plans (which will resemble a combined regional and district plan for each region). 

In addition, key parts of the NBEA will ‘go live’ on a region by region basis, at the time that the first NBEA plan for that region becomes operative (referred to as the region’s “NBEA date”). The rollout will be staggered, with plans for three ‘model regions’ to lead the way, but those first three regions have not yet been confirmed. 

We also note that there could be significant delays in forming committees for NBEA Plans and Regional Spatial Strategies, which need to be established in a way which recognises the various contributions of councils, mana whenua and government organisation representatives.

This all means that the “NBEA dates” could vary substantially between regions, but overall it is expected that full rollout including all 16 finalised NBEA plans is likely to take around 10 years.  

National Planning Framework

The NPF will contain policies and ‘framework rules’, and will function like a combination of the national planning standards, national policy statements, and national environmental standards that we have under the RMA currently. The first iteration of the NPF is expected to largely ‘roll over’ and supplement those existing documents.

Importantly, the NPF will also set environmental limits and targets, and exceptions to these, while NBEA plans will specify how limits and targets are to be achieved.  

Consultation on the first NPF is expected to begin very soon, likely prior to the election. Following the submission and hearing process, the NPF could become operative at the end of 2024. Getting the balance right in the NPF, including reconciling competing policy directions, will be critical, and we would strongly encourage interested parties to engage with the submission process.    

The operative NPF will then be relevant in shaping RSS and NBEA Plans. However, it will not immediately affect consenting decisions, given that the transitional provisions expressly state that persons exercising functions and powers under the RMA must not consider the NPF (except in developing national direction). This approach is likely intended to prevent policies, rules, limits and targets from being considered as an ‘other matter’ in decisions on resource consents and designations during this transitional period. 

Regional Spatial Strategies

RSS are intended to set the strategic direction for each region and provide for integrated management of the environment. They will identify areas with specific values, including cultural heritage and areas that are appropriate for urban development.

While developed under the SPA rather than the NBEA, RSS are also a key step in the development of policy under the NBEA. NBEA Plans will not be able to be developed until the relevant RSS for that region is in place.

NBEA Plans

NBEA Plans will take the place of both regional and district plans under the RMA, and also address new NBEA mechanisms such as the achievement of limits and targets and identification of some types of ‘places of national importance’. 

The first proposed NBEA Plans will be developed from 2028 onwards, with hearings held but no Environment Court appeals (except for in limited circumstances). As mentioned above, an NBEA plan becoming operative signifies that region’s ‘NBEA date’, at which point all RMA instruments will generally cease to apply within that region. 

Resource consents 

The transitional provisions for resource consents and resource consent applications provide that any applications that have already been made at the time the NBEA receives Royal Assent will continue to be processed and determined as if it has not been passed. Similarly, on a region’s NBEA date, when the RMA otherwise ceases to apply to resource consents, any applications that have been made and not determined by that point will continue to be processed and determined under the RMA.

Accordingly, for the most part, resource consent processes will not be affected by the new provisions in the NBEA for many years to come. A notable exception to this is that new transitional provisions inserted into Schedule 12 of the RMA by the NBEA will impose a maximum consent duration (of 5 years after rules regarding water allocation) for any water permits or discharge permits affecting fresh water. However, this will only apply to applications made before the NBEA received Royal Assent, and there is also an exception provided for the construction, operation and maintenance and various forms of infrastructure (such as state highways and three waters). 

Designations

Designations will be retained and refined as a planning tool under the NBEA, including through amendments that are intended to better provide for route protection. However, in most respects, the new designation provisions will not apply until a region’s NBEA date. 

Fast track consenting

The NBEA also includes a fast-track consenting process for specified housing and infrastructure, which is broadly comparable to the COVID fast track legislation. This will only be available for certain ‘eligible’ activities, including the state highway network and three waters infrastructure. For this process to apply, the activity must first be accepted by the Minister for the Environment.

Enforcement and Compliance

Because of the staggered way in which the NBEA is implemented, its provisions around enforcement and prosecutions will not apply directly until each region’s NBEA date.  

A significant caveat to this point is that the transitional provisions do modify the application of the RMA, so that aspects of the NBEA approach are phased in over time. In summary:

• All proceedings, abatement notices, enforcement orders, and infringement notices that were pending or in progress before Royal Assent, will continue under the RMA as if (for most purposes) the NBEA had not been passed.
• Enforcement action for any breach occurring after the NBEA commenced will be applied under the RMA subject to a number of amendments including to the relevant maximum penalties (such as maximum fines of up to NZ $10,000,000 compared to NZ $600,000 currently).
• At six months after Royal Assent, new mechanisms called enforceable undertaking and adverse publicity orders will apply, and after 2 years monetary benefit orders and pecuniary penalties will also be available.

Please feel free to contact any of our Environment and Planning team with any questions around the implications of the NBEA and SPA.