Louise Ford and Tait Hoby from Atkins Majurey provide an overview of the new NBEA and SPA Acts, and update the Select Committee inquiry into seabed mining, which is currently open for submissions, and the Port Otago Limited v Environmental Defence Society Incorporated and Others.
The Government passed its RMA reforms with the Natural and Built Environment Act and Spatial Planning Act with both given Royal Assent on 23 August 2023.
This means that both Acts are now law and, over the course of the next decade or so, will come to comprise a significant portion of our resource management framework. This will have significant flow on effects for the mining sector and associated industries.
Rather than being immediately implemented, new planning instruments will be developed over time and RMA instruments remain in place until their replacement is ready.
In addition, the hierarchy of planning instruments means that this must be done sequentially. Once the National Planning Framework is developed, Regional Spatial Strategies must then be put in place beneath that, followed by Natural Built Environment Plans.
Furthermore, the NBEA planning framework will be put into action on a region-by-region basis. These factors will draw out the implementation process to the point that it will likely take at least a decade before we see widespread implementation.
It is noted for completeness that the National Party has signalled that it intends to repeal the reforms before the end of 2023 if it formsthe next government.
Key changes
One of the largest changes is the new purpose of the NBEA. This is to uphold the ‘health of the natural environment’ (te Oranga o te Taiao). The purpose must be achieved in a way that both protects the health of the natural environment and enables its use and development.
The National Planning Framework (NPF) replaces the current system of national planning standards, national policy statements, and national environmental standards. The NPF will combine the distinct higher order documents, such as the National Policy Statements, National Planning Standards, and National Environmental Standards into a single framework of rules and policies.
It’s expected that the first NPF will mostly rollover existing higher order documents, supplementing them only where necessary. Consultation for this first NPF is likely to begin prior to the election, with the intention that the NPF could be operative before the end of 2024.
Regional Spatial Strategies (RSS) will be promulgated under the SPA, providing strategic direction to each region. RSS are intended to be long term instruments for the implementation of nationwide strategic spatial planning.
RSS will identify issues and challenges facing a specific region and implement plans to respond to these issues. They are subordinate to the NPF and must give effect to the NPF to an extent specified by the NPF.
Regional and district plans will be replaced by Natural and Built Environment Plans (NBEP) that will also focus on how to achieve the limits and targets set under the NPF. NBEPs will be developed through hearings similar to the hearings process under the RMA, but will not have an appeal process.
When the NBEP becomes operative in a region, that region’s regional and district plans will cease to apply.
Fast track consenting processes will still be available for specified housing and infrastructure, similar to the fast-track legislation during Covid. Activities that are eligible for fast tracking must be accepted by the Minister for the Environment.
Resource consents
Resource consents are covered by transitional provisions which ensure applications that have already been submitted will continue to be processed under the current RMA system. Considerations from the NBEA and the SPA will not apply to these applications.
This same approach also applies when a region’s NBEP becomes operative. As soon as the NBEP is in effect, any application which remains undetermined will continue to be processed under RMA conditions. However, new applications after the NBEP comes into effect will be processed under the NBEP.
Enforcement measures
The NBEA includes significantly stronger methods for enforcement and compliance, although these will not apply until each region has an NBEP in place. Transitional provisions do alter how the RMA will be applied in the interim. This ensures that the NBEA approach is phased in over the course of the next few years.
These enforcement measures include: monetary benefit orders, a power to revoke or suspend a resource consent, enforceable undertakings, adverse publicity orders, provisions for financial assurance, and the imposition of a new civil liability regime of pecuniary penalties.
There is also a new “polluter pays” regime, which could see fines imposed on those in possession of contaminated land. However, it is somewhat reliant on self-reporting.
Impact on the mining sector
There are not likely to be any significant impacts on the mining industry, at least until the first NBEA planning instruments are developed and become operative.
The most significant change for the mining industry is likely the revised purpose section. It is likely that the courts will be asked to interpret what it means to uphold the purpose of the NBEA, te Oranga o te Taiao.
The changes to resource consents are also likely to be significant, with one of the aims of the reforms being to allow a faster and more streamlined consenting process.
However, the specific requirements of resource consents are likely to differ regionally according to each region’s NBEP, which will contain provisions setting activity statuses and restrictions on activities such as mining.
The best way for those interested to have an impact on how the NBEA, SPA will function under the new system is to get involved in the consultation processes for the various NBEA plans and RSSs as they are notified.
Select Committee into seabed mining
In the May 2023 edition of Q&M, we reported on the Select Committee inquiry into seabed mining.The closing date for submissions on this inquiry has been set as 11:59 PM on 1 November 2023.
The inquiry will consider potential risks and benefits of seabed mining in New Zealand, and whether changes to the domestic regulatory framework are needed.
Port Otago Ltd v Environmental Defence Society Incorporated and others [2013] NZSC 112
This concerns the Proposed Otago Regional Policy Statement 2015 (PORPS 2015) as notified by the Otago Regional Council (ORC). In producing a regional policy statement, regional councils are required to give effect to national policy statements, such as the New Zealand Coastal Policy Statement (NZCPS).
In short, The Environmental Defence Society, along with several other parties, argued that the ORC had failed to properly give effect to the NZCPS avoidance policies within its own regional ports policy.
This matter was appealed all the way up to the Supreme Court, which ultimately overturned the Court of Appeal’s ruling, confirming that issues of conflict between policies of a national policy statement must be reconciled at the regional policy statement or plan level.
Findings
The Supreme Court unanimously held that the Court of Appeals findings were in error. The NZCPS ports and avoidance policies are all directive.
Because there is an existing network of ports that operate in the coastal environment by necessity, there is in fact the potential for conflict between the myriad of applicable directive policies.
The Supreme Court held that any such conflict should be resolved, as far as possible, by regional councils at the regional policy statement and plan levels.
The Supreme Court also found that where conflicting policies were both directive, neither should take precedence over the other.
While the Court stressed that in most instances conflicts were to be resolved at the regional policy statement or plan level, decision-makers at the resource consent level should still undertake a structured analysis of all relevant considerations before granting or declining a resource consent.
The decision-maker will need to determine which directive policy should prevail within the context of each consent application.
Implications
There are two major implications of this decision for the mining sector.
The first is the importance of resolving these conflicts in at the regional level.
It is now more important than ever to submit on regional plans and policy statements in order to help ensure that these conflicts between provisions can be resolved at the regional level.
Second, in instances where conflicts are not clearly resolved at the regional level, they will still be resolved by the decision-maker at the resource consent step.
Given that this is a contextual analysis made by the decision-maker, it is increasingly important to be aware of the context surrounding your application and how this might interplay with the various relevant policy statements, regional or district wide, as this is the most relevant consideration when determining conflicts between such rules.
