Legislative update: key changes in resource management

Introduction

The current Government is continuing to progress its proposed reforms of the resource management system, particularly in areas such as freshwater, significant natural areas, coastal permits for marine farms, and the fast-tracked approvals process. Additionally, there are changes on the horizon aimed at modernising the Public Works Act 1981 to make it easier to build infrastructure and enabling people to build granny flats as of right.

 

Resource Management (Freshwater and Other Matters) Amendment Bill

The Resource Management (Freshwater and Other Matters) Amendment Bill (FW Bill) reflects part of the current Government's 'second stage of reform' of the resource management system and has the aim 'to slash the tangle of red and green tape throttling some of New Zealand's key sectors'.

The FW Bill proposes to amend the National Policy Statement for Freshwater Management 2020 (NPS-FM), the National Policy Statement for Indigenous Biodiversity 2023 (NPS-IB), the Resource Management (National Environmental Standards for Freshwater) Regulations 2020 (NES-F), Resource Management (Stock Exclusion) Regulations 2020 (Stock Exclusion Regulations) and, of course, the Resource Management Act 1991 (RMA) itself. The key changes to these documents are:

1. Excluding consideration of the Te Mana o te Wai hierarchy contained in the NPS-FM in decision making on resource consents by removing the ability of a consent authority to have regard to the hierarchy when considering the application and removing the need for an applicant to provide an assessment of the proposed activity against the hierarchy and the ability of the consenting authority to request information on this. Notably, the wording of the FW Bill means that Te Mana o te Wai as a concept still continues to apply, but clauses 1.3(5) and 2.1 of the NPS-FM are singled out as being excluded from resource consent decision making (leavings intact the concept and principles of Te Mana o Te Wai). Te Mana o te Wai and the hierarchy of obligations still needs to be given effect to in plans and policy statements.


2. Aligning the consenting pathways for coal mining with other mineral extraction activities across the NPS-FM, NPS-IB and NES-F. The NPS-FM requires regional plans to include a policy concerning the avoidance of loss of extent of natural inland wetlands, which contains an exception for the extraction of minerals 'other than coal'. The FW Bill removes the coal exception. Similarly, the NES-F does not provide the ability to apply for resource consent for certain activities in the vicinity of natural inland wetlands for the purpose of extracting coal. This limitation is to be removed, applying the same rules for the extraction of minerals to coal. The NPS-IB is also amended so that the effects of coal mining are managed in the same way as other mineral extraction.


3. Suspending the requirement in the NPS-IB to identify significant natural areas in district plans for 3 years. The stated reason for suspending this requirement is to 'allow for a review of the operation of SNAs more broadly', perhaps signalling there are further SNA changes to come.


4. Changes to the NES-F and Stock Exclusion Regulations in respect of intensive winter grazing and low slope requirements For farming, the FW Bill removes the requirement to exclude non-intensively grazed beef cattle and deer from water bodies from the Stock Exclusion Regulations. Instead, it is envisaged that exclusion from water bodies in these circumstances will be managed through freshwater farm plans and regional rules. Additionally, the FW Bill removes the regulations regarding intensive winter grazing from the NES-F, albeit the standards relating to pugging and ground cover are to remain. From a consenting perspective, it is unclear what the activity status of intensive winter grazing becomes if these standards are breached.


5. Streamlining the national direction process. Under the current RMA, there are two process where the government can create national direction: a board of inquiry process or establishing the government's own process that contains minimum requirements. The FW Bill removes the board of inquiry process. Additionally, the FW Bill expands the definition of 'national direction' to include the New Zealand coastal policy statement and national planning standards, and allows the Minister for the Environment to amend national directions without following the required process in certain circumstances (e.g. to make changes that are no more than minor in effect).

The FW Bill is currently before the Primary Production Select Committee and their report is due 30 September 2024.

 

Resource Management (Extended Duration of Coastal Permits for Marine Farms) Amendment Bill

The Resource Management (Extended Duration of Coastal Permits for Marine Farms) Amendment Bill (Coastal Bill) proposes amendments to the RMA to automatically extend all coastal permits for aquaculture for 20 years, but not beyond 2050.

The Coastal Bill creates the opportunity for a one-off review by a consent authority of the conditions of a coastal permit that has been extended, within 2 years of the extension. However, the review is optional, and can only be instigated by the consent authority with the 'concurrence' of the Direction-General of MPI, so there is no certainty of a review.

Further, the consent authorities will bear the cost of a review. The review cannot be directed at amending the duration, species or area covered by the consent, which curtails the ability to review a coastal permit for the purpose of making changes necessary to promote sustainable management. No hearing can be held as part of a review and the direction of the inquiry is aimed at promoting the resources directly related to the marine farm, not the environment as a whole. A consent authority's decision on a review is limited to appeals to the High Court on questions of law.

On 18 July 2024 the Primary Production Select Committee reported back to the House on the Coastal Bill and it will now progress to its second reading.

 

Fast-track Approvals Bill

The Fast-track Approvals Bill (Fast-track Bill) was introduced to the House on 7 March 2024 and proposes to give ministers broad powers to approve certain proposals.

The Fast-track Bill has attracted a wide range of criticism from all parts of the political spectrum. Some of that criticism includes that the powers to ministers are too broad and that decision-making has been highly condensed to ministerial power. The Fast-track Bill would introduce a two stepped process whereby Ministers refer a project to an expert panel and then make a substantive decision on the application, regardless of a panel's recommendation.

Additionally, the Fast-track Bill does not currently include a requirement for decision-makers to consider or give effect to Te Tiriti and its principles. Instead, the Bill has a more limited set of requirements, which at best require those exercising functions under the Bill to act in a manner consistent with existing Treaty settlements, customary rights recognised under the MACA and other similar legislation or agreements.

The Bill is currently before the Environment select committee. Submissions closed on 19 April 2024 and the committee is due to report back to Parliament on 18 October 2024.

 

Coastal hazards and climate change guidance

The Ministry for the Environment has recently refreshed its guidance relating to coastal hazards and climate change (Guidance). The purpose of the Guidance is assist local government to adapt to coastal hazards and the risks presented by climate change, particularly sea level rise.

The previous iteration of the Guidance was released in 2017. The key changes from the latest update reflect:

• advances in sea level rise science and global predictions from the Intergovernmental Panel on Climate Change's Sixth Assessment Report;
• advances in knowledge relating to the types of coastal hazards and how they cascade and compound the effects on the coast;
• improved guidance on vulnerability and risk assessment methodology and monitoring adaptive pathways for adaptation plans; and
• the national adaptation plan directions on which climate scenarios to use for hazard and risk assessment within the resource management system.

The updated Guidance can be found here.

 

Other amendments on the horizon

Amendments to the Public Works Act 1981

The Government has announced it will set up an independent panel to undertake review of the Public Works Act 1981, with a view to 'modernising [it] to make it easier to build infrastructure'. The independent panel will 'advise on common sense changes to enable large scale public works to be built faster and cheaper'.

On 4 July 2024 the Government announced it has appointed the expert panel to review the Public Works Act. The Government's intention is to introduce legislation to give effect to the proposed changes by mid-2025.

A new national environmental standard for 'granny flats'

The Government is proposing changes to the Building Act 2004 and the resource management system to make it easier to build 'granny flats' to 'make it more affordable for families to live the way that suits them best'. The proposal includes the addition of a new schedule is added to the Building Act 2004 to provide for simple standalone houses up to 60m² in size and a new national environmental standard under the RMA to make 'minor residential units' a permitted activity.

The Ministry of Business, Innovation and Employment have published a discussion document that sets out the options for enabling the construction of granny flats' and is currently seeking feedback on the proposal. Submissions close 12 August 2024.

Changes to allow for housing growth

On 4 July 2024 the Honourable Chris Bishop announced changes the current Government is intending to make to 'fix our housing crisis'. Cabinet has agreed to:

1. The establishment of Housing Growth Targets for Tier 1 and 2 councils
2. New rules the make it easier for cities to expand outwards at the urban fringe
3. A strengthening of the intensification provisions in the National Policy Statement for Urban Development 2020
4. New rules requiring councils to enable mixed-use development in New Zealand's cities
5. The abolition of minimum floor areas and balcony requirements
6. New provisions making the Medium Density Residential Standards optional for councils

You can find further detail on these announcements here.