If one expects NZ’s legislative regime to protect the environment, then unfortunately there’s no comfort to be found in the RMA ‘reform’ measures announced this week by the Government.

One major bill – the Planning Bill — relates to land use and housing, and promises both significant simplification, laudable to a point (e.g., standardisation, reducing planning overlap), but this is partly achieved by (arguably) excessive elevation of property rights so as to nullify many consenting requirements.

The main measures affecting the environment are embedded in a companion Natural Environment Bill (NEB). However, a ‘Duration of consents’ bill also has potentially major and immediate impact on Hawke’s Bay – specifically on water-related consents.

The bills are extraordinarily complex and interface with other pending local government reform proposals. Consequently, councils have been loathe so far to comment on them beyond the default ‘we’re still digesting them’. From HBRC Chair Sophie Siers, for example:

“Faster, more consistent processes could benefit our region—particularly if they enable timely, evidence-based decision-making. But in a country like New Zealand, where extensive deforestation, land degradation and major remediation challenges already exist, understanding how the new system balances development outcomes with environmental protections will be crucial. I’m interested in understanding more about how the new system – while moving faster – will give due consideration to both.”

Especially with the NEB, the full implications of how, how well and by whom our natural resources are actually managed and our environment protected will not be clear until National Standards and National Directions are prescribed – by the Government. These will determine the true impact of the new regime.

But the direction of travel is unmistakable.

Localism is out. Development is in. The environment is a nuisance.

The environmental ‘rules of the road’ will be set in Wellington, not by regional councils. That said, the Government seems totally confused about what it really wants to do about regional councils. One the one hand, abolish them. Yet the NEB (Sections 221 to 224) assigns them what appears to be a comprehensive list of their existing responsibilities. 

But at the same time Ministers have suggested that all monitoring and enforcement of environmental compliance might be shifted to e new central government agency. This would be in keeping with the following recommendation of its ‘Expert Advisory Group’ (whose advice the two bills essentially track):

“We have concluded that the best way to resolve the current levels of variability and inconsistency in resource management compliance and enforcement is to establish a national compliance and enforcement regulator with a physical presence in each region. 

“This approach enables compliance and enforcement to be overseen by a single governance entity, and to be guided by nationally consistent policies, procedures and decision-making. A national entity provides significant opportunities in terms of economy of scale to retain the specialist skills required and is likely to be financially more efficient. The national regulator’s functions would include the full range of compliance and enforcement activities currently undertaken by councils, including compliance monitoring, complaint and environmental-incident response, and enforcement.”

Adding to the mystery, the Government has said it is still working out the role of regional councils and won’t announce its conclusions on that until next year.

Given this, I pressed HBRC, suggesting Regional Councils were being eviscerated. Again, from HBRC Chair Sophie Siers: “I don’t accept that Regional councils will be eviscerated!”  

“The submission process needs to make clear the fundamental role of Regional Councils in spatial planning and any local government reorganisation.  The vision for each region and the reasons for reform need to be more than efficiency, reorganisation needs to be based on achieving the outcomes that our communities are looking for.”

“Always, governments toss out and reform previous government reforms all the time. Who knows where this will all land over the next 5 years, you have to work with what you have at the time.

“Of course, we will submit on all 3 pieces bringing our knowledge and expertise to the considerations of managing local government and natural resources.”

Regulatory relief

Another key concern flagged by environmental groups regards the treatment of ‘regulatory takings’. These are situations where a specific policy/action – e.g., a consenting decision or set of environmental conditions – enforced by a council might have economic impact on specific property owners or companies. The bill expands the range of situations where landowners could demand compensation from councils. 

The Expert Advisory Group recommended: “We do not want to create an assumption that every regulation under the Planning Act or NEA, no matter how material, must be paid for, nor should it be a takings ‘industry’ for lawyers. That said, we can see that the absence of any cost faced by councils in imposing regulation on landowners has led to regulatory overreach, and we can see that uncompensated takings can give rise to equity concerns and harm investment incentives, undermining the enjoyment of property rights. Accordingly, we consider some ‘movement of the dial’ is needed.”

The Government is indeed ‘moving the dial’ and setting up a special tribunal to handle differences between councils and landowners.

The Environmental Defence Society (EDS) comments: “Relief would be triggered where there is a significant impact on the reasonable use of someone’s land (including on land value and development potential), a threshold that Ministers and councils will get to define. It also looks like councils will have to give relief even when national direction requires them to manage resources.

“In reality, this will mean a lot of legitimate environmental regulation, especially controls to protect indigenous biodiversity and threatened species, simply won’t happen. Councils won’t be able to afford it, especially under rates caps. And it will create an entirely new ‘takings’ industry for lawyers given the ability to challenge decisions in the new Planning Tribunal.”

These are longer term concerns and, as noted above, crucial decisions will be embedded in national instruments yet to be formulated.

The two major bills now go into the normal Parliamentary process, where standing committe(s) will hear submissions next year. You can find the bills and all supporting Ministry of Environment materials here.

Next week EDS will be running a webinar exploring the two bills in more detail. Register for EDS’s webinar here. Tuesday 16 December, 12midday – 12.45pm

More immediate in local impact is the ‘Duration of consents’ bill, which has already passed its third reading. 

Says RMA Reform Minister Chris Bishop: “The intention of this bill is to provide certainty as we go through that consent transition process laid out in the Planning Bill and the Natural Environment Bill.

“In the interim, it is clear that the Parliament needs to send a clear signal to people with that uncertainty around what happens to their consents as we approach the onset of the new planning system.”

Existing consent expiry dates will be extended to two years after the end of the transition period for the new system. Based on current expectations, this means most consents will be extended to around 2031.

Everyone outside Government has been blindsided by this measure. Here in Hawke’s Bay, very contentious consenting situations are currently in progress – for example, renegotiation of water extraction consents to address over-allocation of the Heretaunga aquifer, and extension of the consents for the original Ruataniwha Dam.

Said Labour environment spokesperson Rachel Brooking: “Communities very much care about waterways. They’re relevant to treaty settlements, they’re very important to iwi, they’re mahinga kai areas. So if someone continues to have a consent that is polluting or is taking water that might have, and I say might again, an impact on the amount of tuna in the river. It might not. I don’t know, because nobody has told us.”

“There has just been no analysis of this bill so we do not know what the consequences will be.”

HBRC gave BayBuzz its cautious read: “It is probably still too early to know. It will take some time to work through the changes and understand their implications for our current group of applications.”

C’mon, here in Hawke’s Bay, we know what the consequences will be – two more years of over-extraction from the Heretaunga aquifer, thanks to National, NZ First and ACT.