Mike Doesburg, Partner at Wynn Williams, who specialises in environmental and resource management law, talks about the ongoing RMA reforms and the uncertainty in the quest for certainty.
Leaving aside the Income Tax Act, the Resource Management Act is one of the most amended pieces of legislation on the statute books.
It has been subject to 24 separate RMA amendment acts since it was passed in 1991 as well as hundreds of minor consequential amendments through other legislation. Perhaps it is no surprise that people are starting to become sick of hearing about “RMA reform”.
The RMA was on death’s door at the end of 2023, but has been given a second chance, at least for a short period of time. The Government proposes to replace the RMA before this term ends, however, in the meantime it is progressing with a series of amendments to address a range of issues with the RMA system and deliver on promises from coalition agreements.
While the intention behind the recent flurry of change will be supported by many industries that have struggled with the multitude of additional regulations between 2020 and 2024, I am left wondering if the multitude of piecemeal changes are having the unintended consequence of making things less, rather than more certain?
In the first seven months of 2024, three new bills have been put before Parliament that impact the RMA system:
• The Fast-Track Approvals Bill gained a great deal of attention and was summarised in a Quarrying and Mining Magazine article earlier this year.
• The Resource Management (Freshwater and Other Matters) Bill was introduced in May 2024 and tackles the system for making national policy direction, changes the application of the National Policy Statement for Freshwater Management and revokes provisions of the National Environmental Standards for Freshwater relating to farming. In addition to these changes, the bill provides measures to align the resource consent pathway for coal mining with other extractive activities under the National Policy Statement for Freshwater Management, National Policy Statement for Indigenous Biodiversity and the National Environmental Standards for Freshwater.
• Later, in May 2024, the Resource Management (Extended Duration of Coastal Permits for Marine Farms) Amendment Bill was introduced. The Bill proposes to extend the term of existing aquaculture permits by 20 years, up to 2050. The Bill provides 20 years of certainty for marine consent holders, with relatively limited powers to review the conditions on those permits.
The Government released its action plan for up to September 2024 and a range of RMA-related actions are proposed, including the following.
• Taking Cabinet decisions on the scope of RMA and national direction amendments to unlock development in infrastructure, housing, and primary industries, and drive a more efficient and effective resource management system.
• Taking Cabinet decisions on the work programme to replace the RMA with a system premised on the enjoyment of property rights.
• Taking Cabinet decisions on the final design of the Government’s one-stop shop consenting and permitting scheme, incorporating sensible changes suggested through the select committee process.
• Passing the Resource Management (Extended Duration of Coastal Permits for Marine Farms) Amendment Bill into law to provide certainty to our aquaculture industry.
• Gazetting amendments to the National Policy Statement for Highly Productive Land relating to specified infrastructure and farming activities on highly productive land.
• Taking Cabinet decisions to amend requirements for farmers in certain areas to have certified Freshwater Farm Plans.
These are all laudable goals that many industries would support. For example, the National Policy Statement for Highly Productive Land has been recognised to be a blunt instrument and has created poor outcomes during its transitional period, including due to the broad brush mapping it relies on.
If nothing else, recent decisions have shown that national direction plays a significant role in planning and consenting decisions, and amendments to unlock infrastructure, housing and industry must surely be welcome, particularly as the most recent national direction has been heavily focused on protecting subsets of the environment (in some cases at almost any cost).
Further still, at the start of July, the government announced its reforms to housing supply. Rather than imposing three-storey, three dwelling outcomes in major cities, the land supply market will be flooded.
All Tier 1 and Tier 2 councils will be required to provide 30 years of land supply, restrictions on expansion of urban limits will be lifted, and intensification around train and bus routes will be increased. Again, the aspirations are laudable – planning controls have long been blamed for constraining land supply and increasing the cost of housing.
As noted at the start of this article, wider system reform looms just over the horizon, promised within the next two years. Added to that, more changes to national direction are expected, including further changes to the National Policy Statement for Freshwater Management and the National Policy Statement for Indigenous Biodiversity.
While many of these changes will be welcomed with open arms, there is a growing sense that continued tinkering will not result in better outcomes (at least not within a reasonable time period).
Unless urgency is applied, the legislative process is slow. Progressing multiple bills to make multiple changes could take another six months or longer. In the meantime, there is uncertainty about the ultimate form that changes will take and development stalls.
To be clear, I am not arguing that the status quo should be maintained – there are issues with the RMA system that need to be resolved.
The question is whether issues should continue to be chipped away at one-by-one, or whether more enduring outcomes would be achieved if effort was concentrated amending uncertain or unbalanced national direction in one fell swoop before turning to wider system reform.
If the current approach continues, it seems inevitable that the rest of 2024 and much of 2025 will involve ongoing changes around the edges of the RMA system. If the ultimate outcome is an efficient and effective system that strikes the right balance between enabling activities while protecting the environment, great.
However, the intention still appears to be that the ongoing changes are transitional, and are intended to provide relief in the time leading up to a full replacement to the RMA.
While the reform continues, we will simply look to the future and hope for certainty, while dealing with the uncertainty in the present.
