Exposure Draft of the Natural and Built Environments Bill released for consultation

On 29 June 2021, the Minister for the Environment released the 'Exposure Draft' of the Natural and Built Environments Bill (NBA) for consultation.  This important legislative change has been anticipated for some time.  Following the 'Randerson Report', the Minister asserts that this provides the once in a generation opportunity to get this right.  The Resource Management Act (RMA) has been critiqued as being too slow, too costly, failing to protect the environment and for contributing to the housing crisis. 

Those looking for the detail as to the new legislation will be very disappointed by this exposure draft.  It only provides a limited number of sections and the majority is yet to be drafted or released.  The accompanying Parliamentary paper provides a description of intent and what is yet to be drafted, but none of the detail.  The Strategic Planning Act, which would more logically be drafted and released before the NBA, has yet to be released. However, there is enough in what has been released in order to understand some of the key proposed changes.  This leads to the question as to whether the NBA is going to be transformational?

In short, yes.  Part 2 of the RMA will no longer be relevant.  Instead, the new dual purpose of the NBA (in the new engine room of the legislation) is specified as enabling:

• Te Oranga o te Taiao to be upheld, including by protecting and enhancing the natural environment; and

• People and communities to use the environment in a way that supports the well-being of present generations without compromising the well-being of future generations.

This new purpose will impact on every aspect of the statutory regime.  Te Oranga o te Taiao is a new purpose that the NBA states incorporates the health of the natural environment, the intrinsic relationship between iwi and hapū and te taiao, the interconnectedness of all parts of the natural environment and the essential relationship between the health of the natural environment and its capacity to sustain all life.  Although Te Oranga o te Taiao is entirely new, other commentary has been quick to refer to it as ‘environmental health’.  This new purpose removes the 30 years of RMA case law history providing interpretation clarity and direction.  It may take years of litigation to determine what this new purpose means in the context of the NBA and its implications. 

Part 2 of the NBA also specifies a large number of ‘environmental outcomes’ to be addressed, including issues such as water quality, housing supply and natural hazards.  Instead of resolving tensions between development, infrastructure and the natural environment, it simply highlights those tensions in a list format.  The yet to be drafted national planning framework is required to include provisions to help resolve conflicts, including between the environmental outcomes in section 8.  Notably, while section 8 specifies a range of outcomes using language such ‘protected, restored, or improved’ and the obligation on the planning framework is to ‘promote’ the outcomes, this may not require that those outcomes are achieved.  There is an inherent inconsistency in many of the outcomes, as it’s not possible that the legislation can deliver everything to everybody. 

The NBA provides that environmental limits will be set for the purpose of the ecological integrity of the natural environment and human health.  The NBA does not set those limits, but specifies that the limits will be prescribed through the new national planning framework or in the natural and built environment plans as prescribed by that framework.  The NBA sets out that limits must be prescribed for air, biodiversity, habitats and ecosystems, coastal waters, estuaries, freshwater and soil and are to be formulated as the minimum biophysical state or the maximum amount of harm that may be permitted.  They can be set qualitatively or quantitatively and apply at different levels for different circumstances and locations. 

Once set, all persons using, protecting or enhancing the environment must comply with the environmental limits.  The detail is yet to come in terms of the specific environmental limits and processes will determine whether it achieves its goal of righting the perceived wrongs with the RMA.  At what level those limits are set will greatly determine the workability of the entire NBA regime and the ability for it to successfully address the defects identified with the RMA. 

The national planning framework must also address housing supply and infrastructure services.  The national planning framework must further the purpose of the NBA by providing integrated direction on matters of national significance, or matters for which national consistency is desirable, or matters which consistency is desirable in some but not all parts of New Zealand. This is work to be undertaken by the Ministry for the Environment in a yet to be determined process. 

One of the key changes is a transition from the current regional policy statements, regional plan and district plans into one natural and built environments plan for each region. The intention is to transition from over 100 existing plans into 14 plans.  Regional planning committees will be established to determine these plans.  This process will be the focus of much of the planning policy work over the next 10 years, and the legislation will be drafted to provide the sought after detail about the transition from the existing to the new regime.  

Submissions will shortly be called for on the Exposure Draft.  We are happy to discuss the implications of the above, the balance of the proposed drafting and the accompanying explanatory material as to the likely balance of the NBA in detail with you.