System Reform is imminent

The repeal and replacement of the RMA will take a big step forward this year as the bills that will introduce the Natural and Built Environments Act (NBA) and the Strategic Planning Act (SPA) are expected in the middle of this year. The intention is for the bills to follow a standard legislative and select committee process (which will provide the usual opportunities to make submissions).

Our initial thoughts on the NBA exposure draft can be found here. While the exposure draft gave a broad signal of where things may be heading, the finer details of the new regulatory framework and processes are not yet known. The extent to which the NBA will include natural environmental limits, outcomes and targets at the outset or whether this will be included in regulations to be developed over time is uncertain.  Regardless, a lengthy transitional period is anticipated to enable Councils to respond to the potentially significant changes.

The Climate Adaptation Act (CAA) - the third limb of the RMA reform programme will also be progressed, although there is currently no date for when a bill may be introduced. The CAA intends to address legal and technical issues associated with managed retreat and funding and financing, which will be of interest to local authorities in particular.

Urban development remains at the forefront

Enabling Housing Supply Act
The passing of the somewhat controversial Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021 requires ‘tier 1’ territorial authorities to enable intensification within certain residential zones. This includes requiring the notification of plan changes to implement ‘density’ standards specified in the Act by August 2022. These plan changes will be progressed using the new intensification streamlined planning process (ISPP). 

As has been widely reported, the standards will enable three storeys and three dwellings on each site, without a resource consent, provided there is compliance with specified standards. The Act does allow for councils to enable less intensive development in areas in order to accommodate a number of ‘qualifying matters’ (eg on sites with heritage values, or natural hazards) and a detailed evaluation will need to be undertaken to justify any exceptions. We are already seeing a range of questions and challenges arising from the legislation as the new directives are implemented in district plans.

The Act specifically provides for the collection of financial contributions, including in relation to new development enabled through these standards. It makes it clear that financial contributions may be collected where the intensification is undertaken as a permitted activity. This is a useful reminder for councils to consider when (and how) to collect such contributions and whether this is adequately dealt with in their district plans. 

National Policy Statement on Urban Development
The National Policy Statement on Urban Development 2020 (NPS-UD) was partially amended by the Enabling Housing Act.  In particular, the ISPP process applies to implementation of its intensification policies (Policies 3 and 5) in urban environments.

Councils will be continuing to consider and give effect to the NPS-UD throughout 2022, as providing for urban development and intensification remains a clear focus of the government's urban growth agenda. 

Focus on freshwater

The National Policy Statement for Freshwater 2020 (NPSFM) provided regional councils with updated direction on how they should manage freshwater. Regional councils are required to notify plan changes to give effect to the NPSFM by 31 December 2024, which will involve the use of the freshwater planning process - a truncated planning process that largely removes appeal rights. Judge Laurie Newhook has just been appointed as Chief Freshwater Commissioner to oversee the freshwater planning process for the next three years.^[1]

Given the freshwater planning process will result in quicker decision making, when notifying any change to a regional plan or policy statement an important first decision for regional councils will be to determine whether that process can be used. This will hinge on whether the change is a “freshwater planning instrument”. Declaration proceedings on whether the proposed Otago Regional Policy Statement is a “freshwater planning instrument” were recently heard in the High Court, where we represented two territorial authorities. The decision may assist councils in understanding where to draw the line in determining what is a ‘freshwater planning instrument’ and what should proceed through the standard RMA hearings process. 

Customary marine title decisions expected

The hearings under the Marine and Coastal Area (Takutai) Moana Act 2011, to determine customary marine title and protected customary rights, will continue throughout 2022. Once orders are finalised regional councils will be required to consider the orders and in certain circumstances decline resource consent applications which will have adverse effects on the exercise of a protected customary right.

Fast-track applications

The ability to seek referral for use of a fast track consenting process under the COVID-19 Recovery (Fast-track Consenting) Act 2020 remains open to applicants until July 2023. We have been assisting numerous applicants using this process, and anticipate that applications to the Minister for the Environment for use of the process will continue in 2022. Given our experience with this process we are well placed to assist local authorities should they consider utilising the process, or be invited to comment on a particular proposal within their district. The Minister for the Environment has suggested that the fast-track consenting process could be carried forward as part of the RMA reforms, although with a question mark around who will make the somewhat subjective decision of which projects ought - and ought not - to be able to use the process. We will be watching this space with interest. 

Conclusion

It’s shaping up to be a busy and very interesting year, and we look forward to helping local authorities navigate through all of the above and more.  Please contact us if you would like to discuss any of the above in more detail.

Read our other article: The face of Local Govment is changing. The latest with the Three Waters Reform, the Future for Local Government Review, other hot topics in 2022, and things to think about for this year's annual plans and elections.