Reforming the RM System Govt Proposals

11 February 2021

Yesterday (10th Feb 2021), Environment Minister David Parker issued a media release, Cabinet Paper, Cabinet Decision Minute relating to Govt proposals to repeal and replace the RMA within this term of Government with 3 Acts – NBA (Natural and built Environment Act), SPA (Strategic Planning Act) and Managed Retreat and Climate Change Act. The information traverses several topics: the need for reform; the process for reform; initial in-principle policy decisions; reform implementation and transition. The need for reform section largely summarises the findings of the RM Review Panel Report. There has already been a certain amount of media commentary about the proposals, and the Minister’s media release is usefully comprehensive. This briefing concentrates on the other three topics, and focuses on matters of interest to the planning profession.
The first paragraph of the Exec Summary of the Cabinet Paper puts the Government stance for the review in perspective:

“There is broad consensus that the RM system introduced by the RMA 1991 has not adequately protected the natural environment or enabled development where needed. Ecosystems have been degraded by poorly managed cumulative effects, biodiversity lost, and the response to climate change challenges slow. The RMA has also under-delivered for our urban areas. Decisions made under it have entrenched subjective amenity values and contributed to rapidly increasing urban land prices. NZ’s housing is amongst the least affordable in the OECD.”

The Process for Reform

An unusual but appropriate form of public engagement will be undertaken before draft legislation has its first reading in Parliament. An “exposure draft” of the NBA (Natural and Built Environment Act) will be prepared first, along with consultation material, and this material will be subject to an enquiry undertaken by a select committee, which will then make recommendations. The select committee will be supported by advisors, seek public submissions, and undertake hearings.

The exposure draft will contain the structure of the NBA and indicative headings, with certain aspects drafted to reflect policy decisions made in the cabinet paper, and other delegated decisions made by “Ministerial Oversight Group” (MOG), which will refine policy decisions made in the cabinet paper, make further policy decisions for the draft and consultation material. The scope of the MOG includes policy and process decisions needed to progress remaining content of the NBA bill.

MfE will be the lead agency for the NBA, and the MOG will receive joint agency advice rather than differing positions. The cabinet paper states that “a more formal process may be needed to progress the SPA”, due to its connections with legislation.

The Cabinet Decision Minute notes that “a special process will be used to develop the NBA, and the SPA and CAA developed in parallel”.

Initial In-Principle Policy Decisions

A number of key debates are signalled and triggered by changes suggested by the Minister to the recommendations made by the RM review panel. These include:

  • NBA purpose and supporting provisions. The Minister adopts the panel’s indicative drafting, but makes specific changes. For example, the Minister proposes changes to the purpose of the NBA, suggests how the purpose might be achieved, and uses words that were not in the RM review panel recommendations. In giving effect to the principles of the Treaty, wording is suggested to avoid a ‘veto’ for maori interest and ensure principles of the treaty and the purpose of the NBA are met concurrently. There is also discussion in the cabinet paper on outcomes and biophysical bottom lines. Thus at the top level, set out in the NBA, are: biophysical bottom lines; positive outcomes; and giving effect to the Treaty.

  • National Planning Framework. Those three purposes would be driven by central government direction under the NBA provisionally called the National Planning Framework. This would include and replace existing national direction, combining functions of existing NPS’s, NES’s and most regulations and national planning standards.

  • Natural and Built Environments Plans. The Minister/Cabinet decision is that there will be “one planning document per region”, and that “planning under the NBA should be based on strong national direction and integrated planning within regions”.

    Comment: The Cabinet minute also refers to “one planning document per region”. Appendix 1 of the cabinet paper provides illustrative drafting of the NBA purpose and supporting provisions. Under the outcomes section a “placeholder clause to link to the SPA” is inserted: “When providing for outcomes in (1) local authorities must provide for the applicable regional spatial strategies prepared under the Strategic Planning Act.” There appears to be no mention of regional spatial plans in the Cabinet paper.

Supporting Implementation and Transition

The cabinet paper refers to past issues such as insufficient national direction, no template plan formats, and insufficient funding for the Environment Court. It indicates that resourcing and support will be required for: developing model combined plans; consolidating national direction into the National Planning Framework; incorporation of matauranga Maori; capacity and capability building; improved monitoring and reporting.

The Cabinet report notes that, so far, no Regulatory Impact Assessment (RIS) has been submitted for these proposals, although Cabinet’s impact analysis requirements apply. It states that an interim RIS will be provided to cabinet when it considers the NBA exposure draft prior to release.

NZPI Engagement

The Government clearly intends there should be significant stakeholder engagement with the exposure draft of the NBA. NZPI has consistently sought opportunities to “road test” proposals before they are framed into a bill and read into Parliament. If you are interested in being involved in NZPI’s engagement, please let us know, and let us know how you’d like to be involved.