Update on ‘RMA reform reform’

True to its word, the new coalition Government repealed both the Natural and Built Environment Act (‘NBA’) and the Spatial Planning Act (‘SPA’) at the end of last year. The Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Bill (‘Repeal Act’), gained Royal Assent on 22 December 2023.  

For most intents and purposes, the Repeal Act effectively ‘winds back the clock’ so that the Resource Management Act 1991 (‘RMA’) continues to apply as if the NBA and SPA had never been passed. Most practitioners were still operating under the RMA anyway, so it is business-as-usual.

There is however an important exception to that with regard to ‘fast track’ consenting, and a number of important transitional provisions which we summarise below.  

Fast track process retained (for now)

Most notably, the Repeal Act has retained the NBA’s fast-track consenting process, until an alternative fast-track infrastructure consenting regime can be introduced (expected in the first 100 days of office). Despite the NBA itself being repealed, specific NBA provisions that relate to the fast-track process are to be treated as continuing in effect (with some modifications so as to cross-refer to the RMA rather than the NBA). 

This is the case both for applications that have already been made as well as further applications going forward (presumably until the new permanent fast track system is in place), and any consents issued under this mechanism will be treated as though they were granted under the RMA.  

Key transitional arrangements

The Repeal Act also includes a number of transitional provisions to account for events that occurred or applications that were made during the brief 121 day period in which the NBA was in effect.   For example:

• The NBA had amended the RMA in order to apply a shorter 10 year maximum duration for certain freshwater consents. That restriction no longer applies (except to any applications already granted), and the Repeal Act provides that freshwater consents applied for since 24 August 2023 that had not been decided when the Repeal Act was passed will now have their duration determined in accordance with the 35-year maximum duration under the RMA.
• The NBA gave council-controlled organisations (CCOs) the same automatic requiring authority status as councils. The Repeal Act has since reversed this, including to provide that any notices of requirement lodged by CCOs will not be processed, or if confirmed will not be able to be exercised.  
• The NBA extended the ability to initiate Mana Whakahono ā Rohe (participation agreements) to iwi as well as hapū. The Repeal Act halts any such processes (noting that MfE is not aware of any being initiated), but allows them to be restarted under the RMA.
• The Repeal Act retains the requirement to provide consent applications to post-settlement governance entities with statutory acknowledgements even where equivalent requirements under Treaty settlements were time bound or had expired.
• The Spatial Planning Board remains in place, however the Government’s approach to spatial planning remains unclear at present.
• In terms of enforcement, the NBA had introduced a number of new mechanisms and higher penalties (such as maximum fines of NZ $10,000,000 as compared with NZ $600,000 under the RMA), some of which were applied to enforcement action brought under the RMA. Those changes have now been reversed, with savings provisions in relation to the period in which the NBA was in effect.  For example, the Repeal Act provides that:

• Any consent authority determinations and abatement notices made under the NBA remain valid and may be enforced.
• Proceedings commenced in the Environment or District Court under section 661 of the NBA to revoke or suspend a resource consent may be determined as if the NBA had not been repealed. 
• The Repeal Act reinstates the RMA’s limitation period of 12 months, but the 2 year period introduced by the NBA will continue to apply to any offending that occurred while the NBA was in force. 
• Generally, other valid actions taken while the NBA was in effect remain valid following its repeal. 

For further details, the Repeal Bill is available here and MfE has provided further commentary here.   

Further changes to come

Fast track consenting regime

The Government has expressed a commitment to establishing a ‘fast-track one-stop-shop’ consenting process for national, as well as regional, projects of significance. The Government has indicated a bill to this effect will have its first reading within the first 100 days, with a view to it being in place within nine months.  At this stage, few details are publicly available in terms of what it will look like (e.g. an addition to the RMA or a standalone regime like the COVID Fast Track legislation). 

Longer term RMA reform

As a longer term programme, the Government will soon embark on its own revamp of the RMA, but anticipates that could take up to three years.

In terms of the likely features of this new system, the Coalition Agreements state the Government aims to amend the RMA to make it easier to ‘consent new infrastructure including renewable energy, allow farmers to farm, get more houses built, and enhance the primary sector, including fish and aquaculture, forestry, pastoral, horticulture, and mining’. 

Notably, the coalition agreement with ACT states that the RMA will be replaced with ‘new resource management laws premised on the enjoyment of property rights as a guiding principle’. It remains to be seen what that would mean in practice (for example, whether property rights will be enjoyed by (say) building higher, or by preventing one’s neighbours from doing so).

Changes to National Policy Statements – freshwater, biodiversity, renewables

In addition to changes to the primary legislation, a number of changes to all-important national policy statements have also been signalled. For example:

• The Government has indicated it will replace the National Policy Statement for Freshwater Management 2020 (‘NPS-FM’) in a process that is expected to take between 18 to 24 months. The Coalition Agreements claim this change will allow district councils more flexibility in how they meet environmental limits and will rebalance Te Mana o te Wai to ‘better reflect the interests of all water users’. To provide breathing room for that, the Repeal Act also extended the RMA’s freshwater planning deadline so that regional councils now have an extra three years, until 31 December 2027, to notify their freshwater plan changes. 
• The coalition agreements also refer to ceasing work on the implementation of significant natural areas, which is likely to mean changes to the National Policy Statement for Indigenous Biodiversity (NPS-IB). 
• National’s Electrify NZ Policy indicates it will issue a new National Policy Statement for Renewable Electricity Generation (NPS-REG) within a year of taking office. 

No doubt the new Government will be ushering in many other changes, yet to be announced. We will keep a close eye on developments to come.