Resource management legislative reform - Local Government ...

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Prepared for: Clare Wooding

LGNZ

Submitted by: John Hutchings

HenleyHutchings

Resource management legislative reform Arrangements for preparing proposed plans and strategies

A ‘THINK PIECE’ - GOVERNANCE AND PROCESS IMPLICATIONS FOR LOCAL GOVERNMENT

JULY 2021 COMMERCIAL IN CONFIDENCE

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Resource management legislative reform

Arrangements for preparing proposed plans and strategies

A ‘THINK PIECE’ - GOVERNANCE AND PROCESS IMPLICATIONS FOR LOCAL GOVERNMENT

HenleyHutchings

Level 4

276 Lambton Quay

Wellington 6031

www.henleyhutchings.co.nz

23 JULY 2021

file:///C:/Users/KrystalGuppy/Dropbox/HenleyHutchings/Marketing%20&%20Branding/HH%20Branding%20Logo%20&%20Templates/TEMPLATES/www.henleyhutchings.co.nz

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Contents

Background ........................................................................................................................................................................... 4

Randerson Panel .......................................................................................................................................................... 4

Objective or resource management reform ................................................................................................................ 4

Government decisions ................................................................................................................................................. 4

Purpose of this think piece........................................................................................................................................... 4

Scope and challenge 5 Primary concern ........................................................................................................................................................... 5

Focus of this paper ....................................................................................................................................................... 5

Key findings of this paper ............................................................................................................................................. 5

Structure of paper ........................................................................................................................................................ 6

Problem statement 6 Government’s proposed solution ......................................................................................................................................... 6

Legislative solution ....................................................................................................................................................... 6

Regional Natural and Built Environments Plan (NBA Plan) - purpose .......................................................................... 7

Regional Spatial Strategy (RSS) - purpose .................................................................................................................... 7

Proposed governance arrangements and processes to prepare NBA Plans and RSSs ......................................................... 8

Natural and built Environments plans (NBA Plans) - process ...................................................................................... 8

NBA plans – panel / central government proposals ........................................................................................................... 9

Regional spatial strategy (RSS) - process ................................................................................................................... 10

Regional spatial strategies - panel / central government proposals ................................................................................ 11

Implications for local government ...................................................................................................................................... 12

Inappropriate limits to local decision making ............................................................................................................ 13

Too much power to the centre .................................................................................................................................. 14

Other uncertainties and challenges ........................................................................................................................... 14

Reform overload ........................................................................................................................................................ 16

Principles to guide the design of preferred resource management governance accountabilities, instruments, and processes 16

Subsidiarity and accountability - principles ............................................................................................................... 16

Local authority staff ................................................................................................................................................... 18

Preferred NBA Plan and RSS solutions ................................................................................................................................ 19

NBA Plans – preferred solution .................................................................................................................................. 19

Preferred alternative for the preparation of NBA plans ................................................................................................... 20

Alternative NBA Plan development options .............................................................................................................. 21

Regional Spatial Strategies - preferred solution ........................................................................................................ 21

Other key matters of importance .............................................................................................................................. 24

Summary of preferred solutions ......................................................................................................................................... 25

Conclusion .......................................................................................................................................................................... 31

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Background

Randerson Panel

The review of the Resource Management Act (RMA) was carried out by a Panel chaired by Retired Court of

Appeal Judge Tony Randerson QC. The Panel’s report proposes replacing the RMA with three new pieces of

legislation. These are the:

Natural and Built Environments Act (NBA Act). Strategic Planning Act (SP Act). Managed Retreat and Climate Change Adaptation Act (CCA Act).

Objective or resource management reform

The aim of the review was to improve environmental outcomes, better enable urban and other resource use

to occur within more clearly defined environmental limits and improve resource management outcomes for

Māori. In the words of Minister for the Environment Hon David Parker1:

The whole idea is to make the RMA simpler and easier to deal with – less complex, less difficult to administer and less costly.

Enable more consolidation of planning rules.

Government decisions

A December 2020 Cabinet paper2 confirmed Government’s intent to repeal the RMA and replace it with the

three proposed new Acts. An exposure draft of the NBA Bill, and related consultation material, was released

on 29 June 2021. Parallel work is being undertaken on the content of the SP Act. Work on the CCA Act has

been deferred for 12 months.

Submissions on the exposure draft of a skeleton of the NBA Bill will be considered by the Local Government

and Environment Select Committee in August 2021. Separate to the Select Committee inquiry, MfE are

considering questions about the design of governance arrangements across the system, although some

consideration may also be given to this by the Select Committee.

Purpose of this think piece

LGNZ has an opportunity to influence that process. It also wants to assist individual local authorities to

contribute to the Select Committee inquiry. The purpose of this ‘think piece’ paper is to provide information

and ideas to support these actions.

1 These comments were at the heart of the press release issued by the Minister. 2 This was proactively released in February 2021.

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Scope and challenge

Primary concern

The changes to resource management legislation, if implemented in their recommended form, will have

major implications for the resource management roles and responsibilities of local government. Among

other things, they will centralise more resource management decision making power in government and in

regional committees. In so doing, they may disempower territorial local authority elected councillor ‘place-

based’ decision making. They will thereby make it more difficult for local government to achieve the purpose

for which it was established.3, 4

Focus of this paper

In general terms, this think piece supports the tenor of the Panel’s assessment of the problems associated

with the RMA, but it does not support all their suggested solutions. The focus of this paper is on concerns

about the proposed governance, institutional arrangements, and processes for preparing, approving, and

implementing Natural and Built Environments Plans (NBA Plans) and Regional Spatial Strategies (RSSs). The

primary questions the paper addresses are:

1. Are the proposed governance, institutional arrangements and processes for the preparation, adoption and

implementation of NBA Plans and RSSs the best available for resolving the challenges identified within the

current RMA regime?

2. If the proposed arrangements are not the best, what principles and what alternatives should be considered to

better resolve these challenges?

Key findings of this paper

The paper concludes by recommending:

NBA Plans should be prepared as a composite of district and regional plans for each district. Each of these Plans should be developed using committees made up of elected representatives from the affected district council and the affected regional council.

RSSs should be prepared by a single joint regional committee administered by a regional council, with prescribed membership, duties, powers, and obligations. This committee should be empowered to make the final decision on the RSS. The committee would have representatives from all district / city and regional councils on it. Central government, iwi / Māori, and infrastructure / network suppliers would also be represented on the committee. All parties should be required to give effect to the matters recorded in their RSSs. RSSs should include the matters currently addressed in Regional Policy Statements.

3 This is to: enable democratic local decision-making and action by, and on behalf of, communities; and to promote the social, economic,

environmental, and cultural well-being of communities, in the present and for the future. 4 Purpose of local government, section 10, Local Government Act 2002.

GOVERNANCE AND PROCESS IMPLICATIONS FOR LOCAL GOVERNMENT I JULY 2021

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Structure of paper

The paper commences by summarising relevant content from the Panel report, as well as that included in

the exposure draft of the NBA Bill and the recent Parliamentary Paper explaining the proposed content of

the NBA Bill.5 The paper then outlines the implications for local government arising from this content and

provides information to support the adoption of alternative solutions.

Problem statement The drivers for change to the RMA – as identified in the Panel’s report, may be summarised as follows:6

Current land and water use is proving increasingly unsustainable – biodiversity and ecosystem health has been degraded.

Decisions have entrenched ‘subjective ‘interpretations of such things as ‘amenity’ values. Environmental limits need to be given more prominence as a key purpose of resource management. Resource management decisions have contributed to increased land values and exacerbated housing

supply challenges. ‘Effects management’ does not provide sufficient strategic and spatial planning and does not enable

development e.g., to resolve housing supply challenges, to occur where and when it should be. More active effort is required toward decarbonisation and adaptation / building community resilience

against the effects of climate change. Successive amendments to the RMA have made it unwieldy, litigious, and complex. RMA plans and processes are numerous, difficult to navigate and vary in quality. National direction lacks coherence. Tools and processes for meaningful Māori engagement are inadequate.

In addition, and importantly – in terms of the purpose of this paper, the Review Panel found that ‘the

institutional landscape for resource management in New Zealand is extremely complex’. The Panel said the

RMA regime suffered because ‘there are numerous decision-makers and a lack of clarity about their

respective roles and responsibilities’.7

Government’s proposed solution

Legislative solution

The Natural and Built Environments Act, the Strategic Planning Act and the Managed Retreat and Climate

Change Adaptation Act are viewed as overcoming the current problems by:

Establishing a binding set of positive national outcomes and priorities for natural and built environments, rather than using the ‘effects management’ regime under the RMA.

Recognising the concept of Te Mana o te Taiao and the need for more active involvement of mana whenua in resource management decision-making.

5 If you are familiar with this background material, we recommend you focus on the content of the paper commencing at page 7. 6 These problems and challenges are more extensively described in the ‘Parliamentary Paper on the exposure draft’ which accompanied the release

of the exposure draft. 7 The Panel’s report makes it apparent the Panel did not have confidence in the ability of all councils and all council staff to effectively manage their

resource management policy and implementation tasks.

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Establishing a system of biophysical limits and targets for resource use and development. Providing better national direction by preparing a robust National Planning Framework. Reducing the number of plans and improving their quality by combining plans for each region. Streamlining the process for preparing plans and using the content of the new plans to reduce the

effort spent on individual resource consents. Improving evidence gathering, monitoring, compliance, and enforcement processes. Moving toward a more equitable and efficient resource allocation system. Giving more recognition to the need for Plans to provide measures providing for adaptation to climate

change, the avoidance of risks from natural hazards, and better mitigating the emissions contributing to climate change.

Regional Natural and Built Environments Plan (NBA Plan) - purpose

Government’s solution includes a requirement for local government to prepare two new planning

instruments. The first is a Regional Natural and Built Environments Plan (NBA Plan). It is proposed that these

Plans will:

Combine regional policy statements, and all regional and district plans within a single plan for each region – in the manner of the Auckland Unitary Plan.

Reduce the number of planning documents from more than 100, to just 14.8 Require the combined plans to be consistent with Regional Spatial Strategies (see below for further

details about these Strategies). Require the NBA Plans to reflect the proposed purpose of the NBA Act.9 Require the NBA Plans to reflect urban design considerations – rather than ‘amenity’ considerations (NB

it is intended that more details about these urban design considerations will be provided within one of the elements of the proposed National Planning Framework).10

Regional Spatial Strategy (RSS) - purpose

The second instrument is a Regional Spatial Strategy (RSSs). The Panel envisage RSSs being an instrument to

help resolve fragmented resource management decision-making between central and local government.

Similar fragmentation is viewed as existing between regional and territorial authorities and between

different legislative requirements with effect on resource management. The proposed RSSs would:

Focus on the major strategic issues and opportunities for a region, including significant anticipated changes in land use, environmental management, major urban and infrastructure requirements, and the future transport corridors needed to accommodate projected growth.

Set 30-year / long-term measurable objectives and milestones. Describe, geographically, how the limits and targets set through combined NBA Plans and National

Policy Statements might be implemented.

8 The February 2021 Cabinet paper (paragraph 104) acknowledged this may be challenging. They sought assurance this would be practical, given the

diverse nature and complexity of existing RMA plans. 9 The current proposed wording of this new purpose statement is …to promote the quality of the environment to support the wellbeing of present

and future generations and to recognise the concept of Te Mana o te Taiao and, subject to these matters, avoid, remedy, or mitigate the adverse

effects of activities on the environment. 10 The purpose of the National Planning Framework is proposed to be to address matters of national significance or matters where national

consistency would be desirable. It is proposed that the National Planning Framework would include and replace existing forms of national direction

and will combine the current functions and powers of existing national policy statements, national environmental standards, most (if not all)

regulations and national planning standards under the RMA.


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Integrate the resource management-related matters inherent in the Local Government Act (LGA), the Land Transport Management Act (LTMA), and the Climate Change Response Act (CCRA).

Proposed governance arrangements and processes to

prepare NBA Plans and RSSs11 In the view of the Panel, New Zealand’s future environmental management system should be based on

streamlined and clarified roles and responsibilities. The Panel’s key solution is to recommend shifting more

responsibility to central government and to regional committees12 and to shift more responsibility to

‘executive’ experts rather than elected persons.

Natural and built Environments plans (NBA Plans) - process

The Panel propose that a single regional NBA Plan would be developed by a regional committee

(see following process diagram). The Plan would cover the resource management planning needs

of all the local authorities in a region i.e., it would combine the district and regional plans and

the regional policy statement for a region.

The proposed regional committees would be made up of representatives of central government,

the regional council, all constituent territorial local authorities (TA’s) in the region and mana

whenua. Each regional committee would be served by a secretariat made up of officers capable

of administration, plan drafting, policy analysis, coordination of public engagement and the

commissioning of expert advice etc.

There would be no ‘draft plan’ released for consultation prior to notification. Instead, the

regional committee would prepare a ‘discussion document’. The content of this discussion

document would draw on:

National direction, as provided in a National Planning Framework. The purpose statement, and the national outcomes to be included in the Natural and Built Environment

Act and the Strategic Planning Act. Outcomes recorded in the proposed RSS. Policy judged as being ‘effective’ – as drawn from existing RMA plans. Trends revealed by state-of-the-environment data. Content of mana whenua planning documents.

When the issues and outcomes, land use patterns, resource pressures and ecological values are

regionally common, NBA Plans would apply consistent ‘regional’ objectives, policies, and

methods across the area covered by all the TAs in a region. Some capacity for local variation,

may be exercised when there are clear geographic differences that justify this variation.

11 We have drawn on both the December Cabinet Paper and a paper prepared for LGNZ by Simpson Grierson (November 2020) to describe

Government’s intentions and to assess the high-level implications of these changes for local government. 12 Except for Auckland, Gisborne, Tasman, Nelson, and Marlborough, this would take responsibility away from individual district and city councils. It is

uncertain how the Panel’s recommendations will affect unitary district councils – many of whom are known to have constrained resource

management capacity and capability.

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NBA plans – panel / central government proposals

NB. This reflects our current interpretation of the proposals - noting there are options and there are some

matters requiring further definition.

Establish a Regional NBA Plan

Committee

Prepare a Regional NBA Plan

discussion document

Facilitate public engagement on

discussion document

Prepare draft Regional NBA Plan

Invite expert review of draft

Regional NBA Plan by MfE Official

Notify and invite submissions on

draft Regional NBA Plan

Appoint Environment Court Judge to

lead a draft Regional NBA Plan

hearings panel.

Apply a truncated appeals process

to resolve matters upon which

agreement cannot be reached on

the draft Regional NBA Plan

hearings panel

Representatives - from central

government departments, territorial

local authorities in the region and

the regional council and mana

whenua

Serviced by a

secretariat with

administration,

planning and

engagement

expertise drawn

from the local

authorities of a

region. Purpose – establish policies and

rules to avoid, remedy and mitigate

the adverse effects of activities.

Content – references to matters

outlined in National Planning

Framework, RSS, NBE Act – purpose

and outcomes, appropriate policy

from existing plans and regional

policy statement, responses to state

of the environment trends, mana

whenua plans, etc.

Implement the Regional NBA Plan

requirements.

Each local

authority


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The regional committee would facilitate widespread ‘engagement’ on the ‘discussion document’

with the public and stakeholders. The results of this engagement would provide the regional

committee’s secretariat with the information needed to draft a plan.

Prior to formal notification of the plan, the Ministry for the Environment would commission an

expert reviewer to review the draft plan. This review would determine the Plan’s adequacy with

respect to such matters as its:

Alignment with national direction, targets, and environmental limits. Consistency with the outcomes provided by the RSS. Robustness of policy logic.

Following notification and a call for submissions, an independent panel, chaired by a sitting Environment Court Judge, would hear submissions, review the draft NBA Plan, and make recommendations on its provisions, using a process like that applied to the processing of the draft Auckland Unitary Plan.

A streamlined appeal process may then be used13. Under these streamlined arrangements, where the regional committee accepts a recommendation of the hearings panel, appeals would be limited to points of law. When the committee rejects a recommendation, then an appeal would be allowed on the merits of the point in contention, to the Environment Court. These appeal rights would be available to anyone who had standing to appeal. There would be further rights of appeal to the Court of Appeal and Supreme Court, but only with the leave of those Courts.

Regional spatial strategy (RSS) - process

The Panel envisage the preparation and approval of RSSs also being the responsibility of some type of

regional committee (see following process diagram). This would be a different committee to that established

to prepare the NBA Plan.

The RSS regional committee may comprise an independent chair, local government officers and

representatives of central government, network infrastructure providers and mana whenua. Members of

the committee would be required to consult with the bodies that they represent and would then be

responsible for representing the views of that body at regional committee meetings. The committee would

have the final mandate to approve the RSS. In large regions not every local authority or mana whenua

groups would be directly represented on the Committee – to be practical regarding size.

The Panel suggest that before final approval, the committee ‘should make best endeavours’ to satisfy itself

that the local authorities and mana whenua in the affected region support the draft RSS - in so far as the

content of the Strategy relates to or affects their region or district or rohe. The committee would use a

modified form of the special consultative procedure – as currently listed in the LGA, to achieve a ‘consensus

decision’ on the content of the RSS.

As was the case with the NBA Plans, there would be no ability nor requirement for either the relevant

regional council, and all constituent TAs, to approve or indeed adopt the final RSS14. Nevertheless, it is

13 This would be like that applied during the development of the Auckland Unitary Plan 14This would imply some elected members having responsibility for provisions applying to areas outside their elected mandate.

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Regional spatial strategies - panel / central government proposals

NB This reflects our interpretation of the proposals - the proposals contain options. Other matters require

further definition.

Establish a Regional Spatial Strategy

Committee

Members of the committee consult

with the bodies they represent and

are responsible for representing the

views of that body at regional

committee meetings

Prepare draft RSS Committee

members make

‘best endeavour’

to satisfy

themselves that

the local

authorities and

mana whenua in

the affected

region support the

draft RSS - in so

far as the content

of the Strategy

relates to or

affects their

region or district

or rohe.

Committee approves the RSS

Committee applies ‘special

consultative process’ to achieve a

consensus decision on the content

of the RSS

Committee composition –

Appoint Independent Chair plus

representatives from local

government (officers) and

representatives of central

government, network

infrastructure providers and mana

whenua

Serviced by a

secretariat with

administration,

planning and

engagement

expertise drawn

from the local

authorities of a

region.

Purpose – Focus on the major

strategic and spatial planning

issues and opportunities for a

region, including significant

anticipated changes in land use,

environmental management,

major urban and infrastructure

requirements, and the future

transport corridors needed to

accommodate projected growth

and housing supply.

Set 30-year / long-term

measurable objectives and

milestones.

Describe, geographically, how the

limits and targets set through

combined NBA Plans and National

Policy Statements might be

implemented.

Integrate the resource

management-related matters

contained in the LGA, LTMA, and

CCA

Each local authority in the region

implements the RSS


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expected that accountability for implementation of the RSS would still sit with all councils in the region. It

may also be the case that the SP Act may provide for a responsible Minister (or Ministers) to be accountable

for the delivery of the aspects of the Strategy relating to them. It is not envisaged that mana whenua would

be accountable for implementation.

RSSs would need to be consistent with the purposes of the Natural and Built Environments Act (NBA Act),

Local Government Act (LGA), Climate Change Response Act (CCRA) and Land Transport Management Act

(LTMA), and the national instruments prepared under these Acts. These national instruments would include:

National policy statements and national environmental standards and environmental limits (as prepared under the RMA and likely to be transferred to / or further developed under the NBA Act).

The National Adaptation Plan (which is to be informed by the National Risk Assessment prepared by MfE under the CCRA).

The Government Policy Statement on Land Transport as prepared under the LTMA15 and the Government Policy Statement on Housing and Urban development.16

RSSs would also be required to take into account other national strategies and plans, including the Emissions

Reduction Plan prepared under the CCRA and the national 30-year Infrastructure Strategy - a draft of which

was recently released by the New Zealand Infrastructure Commission.

Implications for local government The past performance of local government has demonstrated that it is not afraid to take-up opportunities to

harness those aspects of a reform agenda that will enable them to improve the lives and well-being of their

communities. This has included agreeing to joint service arrangements between neighbouring councils. It

also includes a likely willingness to respond to stronger national directives, and a willingness to apply

truncated plan-making procedures.

It is all too easy for central government and others to point the finger at local government as the cause for

the environment being inadequately protected or for decisions being made too slowly and too litigiously.

Local government are said to have contributed to the unpredictability and inefficiency of the regime for

applicants.

These failings are not attributable to local government decision makers on their own. However, more clearly

defined environmental limits, expanded compliance monitoring and the further provision of non-regulatory

advice would have helped the cause. More certainty, more speed, less cost, and better environmental

outcomes are universal desires. On other matters, such as the somewhat laborious plan making process,

failings have been influenced by the nature of the processes local government has been required by law to

apply and the absence of comprehensive national instruments.

There is much in the overall architecture of resource management legislative reform to commend. There is

clear merit, for example, in the proposition that the NBA Act and the SP Act move away from the primary

15 It is proposed that the purpose of the LTMA could be amended to refer to social, economic, environmental, and cultural wellbeing, which would

thereby establish the four well-beings as a common thread across the SPA, NBEA, LGA and LTMA. 16 As prepared under the Kāinga Ora-Homes and Communities Act 2019.

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‘effects-based’ approach embodied in the RMA, toward more of a futures focused / ‘promotion of positive

outcomes’ approach, across all four well-beings. This active planning approach is evident in the reworded

‘purpose statement’ and the ‘national outcomes’ recommended for inclusion in the NBA Act.17

There is also good reason to support these requirements because they will:

Give certainty to environmental protection via the better definition of environmental limits. Strengthen the planning system to better enable management of cumulative effects. Better provide for long-term infrastructural needs. Take measures that would help local government to contribute to meeting housing supply needs.

What needs to be avoided is the ‘anything has to be better than the RMA’ approach. Critical appraisal is

required to ensure the proposed changes will unquestionably improve on the status quo. Some of the

proposed matters for inclusion in the new legislation do not achieve this objective.

Inappropriate limits to local decision making

The Panel’s report18 and the content of the exposure draft of the NBA Bill do not adequately recognise the

importance of the connection between local elected representatives and resource management decision

making. Local democracy will be undermined because:

Individual councils would have a restricted decision-making role in the creation and final approval of the NBA Plans and the RSSs.

Decisions about the final content of the NBA Plans would be made by regional committees, not by individual councils.

The proposed regional committee members for both NBA Plans and RSSs would have authority to represent and ‘act on behalf’ of their constituent appointing bodies but not necessarily be directly accountable to these bodies.

Local government officers rather than elected members may be appointed to the regional committee responsible for preparing the RSSs.

The seats and voting rights to be held by central government and mana whenua on the RSS regional committee may become more numerous than those held by local government.

Not all local authorities and not all iwi may be able to be represented on the RSS regional committees because of a concern that these committees would become too big to be effective and efficient.19

If the concerns about the content of NBA Plans or an RSS are not able to be resolved by each council submitting and participating in the proposed plan making ‘consensus decision making process,’ then their only fall-back option is to become an appellant on their own plan.

No clarity is provided about the ability of the RSS to require regional network infrastructure providers to fund and supply the infrastructure jointly identified as being necessary for the future of a region.

The net effect of the above measures is that the ‘place-making’ voice of territorial local authorities would be

much diminished compared to the ‘local voice’ opportunities provided under current arrangements. This is

17 These views were also expressed in a paper prepared as background for a discussion that took place with Hon David Parker and regional council

leaders on 26 June 2021. 18 Details about many of these processes are not included in the ‘Parliamentary Paper’ issued with the ‘exposure draft’ of the NBE Act. Rather – they

reflect the content of the Panel’s report. The fact that government has not taken a position on these matters implies the Panel’s proposals may still

be open to amendment. In support of this view, the Cabinet paper (paragraph 105) rightly notes the importance of retaining some level of

subsidiarity for local communities (i.e., delegating decisions to the lowest practicable local level), to ensure they retain a voice in plan-making

processes. 19 It is unclear how treaty settlements will align with these proposals.


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despite local communities becoming increasingly concerned about the quality of the environment in which

they live. Local government is the best platform to express these concerns and to reach agreement about

solutions.

Local contributions to resource management decision-making are a vital tool for local government to be able to fulfil

their community governance roles. This is the role councillors have been elected to undertake, on behalf of the

communities they represent. Without this ‘bottom-up’ voice it will be more difficult to achieve community cohesion,

pride, heritage protection, transparency, biodiversity protection, climate change adaptability, necessary infrastructure

provision, protection against natural hazards and – in general terms, accountability for the actions required to achieve

desired environmental outcomes and the community well-being objectives for which local government was

established.

In addition, councillors make revenue and rates decisions about the funding they invest in local ‘place-

making’. As the maxim goes – ‘those who pay should have a say’ about how their funding is being used. The

proposals diminish the ability of territorial authorities to ‘have a say’ but nevertheless retain the obligation

for them ‘to pay.’

Too much power to the centre

The proposals imply more direction, consistency, and oversight of resource management responsibilities by

central government.20 An extended array of national policies and instruments are proposed. These would be

consolidated into a proposed National Planning Framework.21

This is not all bad. There is a strong case for expanded national guidance on matters of distinct national

interest. However, an agreed line needs to be drawn to define which decisions more clearly should be made

by who. Efficiency gains may be achieved by lifting more resource management responsibilities to central

government. But there is also a need for individual local authorities to have effective opportunities to

continue to exercise their ‘democratically-elected’ resource management voice. The Panel’s proposals lift

the proposed line too high. There is a need for clearer principles and better definition of when decisions

should be elevated to central government.

Other uncertainties and challenges

Many other uncertainties arise for local government. Principal amongst them, are:

Regional Policy Statements: Regional Policy Statements have played a resource management ‘integration role’. Their influence has been limited to the scope of the Resource Management Act. A broader scope is required to enable other spatial, and strategy matters to be addressed. These include the spatial and strategy matters raised by the Land Transport Management Act and the new Urban Development Act – as well as the matters arising from three waters and energy infrastructure / network planning. The proposed RSSs will achieve this objective. However, the Panel’s proposal that Regional

20 Increased national direction may make some aspects of plan making less contentious. It would also make plan content and outcomes more

consistent. On the other hand, the content of national directives may not find equal favour in all regions. This is because it will diminish the

opportunity for the expression of local values. It will also reduce the ability of the plans and strategies to reflect geographic variance. 21 The various elements of the National Planning Framework will be given effect via an order in council initiated by the Minister for the Environment.

Exercise of this powerful responsibility places an onus on the Minister to only exercise this power after the applying robust consultative processes.

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Policy Statements be absorbed into NBA Plans is misplaced. Regional Policy Statement matters that are best addressed in the RSS.

Sequencing of instruments: The sequencing of the development of the RSS and NBA Plans may be problematic (NB Cabinet’s current intent is to give priority to the preparation of the NBA Act).22 To avoid unnecessary rework and inconsistency, proposed instruments should be prepared in the following sequence:

o National Planning Framework including National Planning Standards. o Regional climate change adaptation plans23. o Regional Spatial Strategies. o Natural and Built Environments Plans.

Transition provisions: Local government is currently committing significant effort toward the amendment of their district and regional plans. This is primarily to accommodate the directives contained in the NPS for Urban Development and the NPS for Freshwater Management. There is uncertainty about the effect of the proposed regional NBA Plans and RSSs on these efforts.24 Plan-making processes are very expensive and burdensome. In some cases, difficult issues associated with giving effect to national direction have only recently been settled through lengthy Environment Court proceedings. In addition, communities have participated in good faith in these recent processes and have often expended large sums of money as part of that participation. This good work should not be allowed to be wasted. A transition arrangement is required that recognises and provides for the currency of newly amended plan provisions. Councils should not be required to re-notify provisions that have only recently been settled or which otherwise remain fit for purpose.

Regional Committee: It is unclear how the proposed NBA Plan regional committee and the RSS regional committee relate to each other, despite them potentially having many members in common25. It is also uncertain who would ‘house’ each of these committees. Would they be a committee of all the local authorities of the region, or would they be a committee of the regional council (with prescribed membership, duties, powers, and obligations?)26 Greater clarity is required on this matter. There is merit in them being modelled on Regional Transport Committees.

Delivering better infrastructure and improving housing supply: Improvements to the provision of infrastructure and housing are an outcome sought from the NBA and SP Acts. This is despite land supply being only one of many factors contributing to the current housing supply challenge. There are also concerns about the interface between the housing supply role of local government and the expanding role being played by Kāinga Ora under the Urban Development Act. Expectations about the housing supply outcomes to be achieved through amendments to the RMA should be carefully moderated. Central government agencies such as Waka Kotahi and Kāinga Ora, as well as network infrastructure providers, should be required to take account of the content of RSSs in preparing and funding their long-term infrastructure development plans. Without this, it will be more difficult to achieve housing

22The current intention is the NBE Bill will be introduced late in 2021 and passed before the end of 2022. 23 There is currently no certainty that a regional climate change adaptation plan will be required to be produced but it makes sense for these to be

prepared. More importantly, to avoid losing focus on the absolute priority importance of addressing climate change challenges, central and local

government have a duty to develop more clarity about the boundaries of accountability of local government for addressing their respective

decarbonisation and adaptation / resilience concerns. 24 One of the drivers for these changes is the need to accommodate the directives contained in the National Policy Statements for Freshwater

Management (NPS FWM) and Urban Development (NPS UD). 25 Officials have advised the same committee could be used for both. 26 If they are to be a joint committee of the whole, then all local authorities and other parties would become defendants on appeal of any decision

made by that committee. Other questions also arise. How would the work of the Committee be funded? What happens to the Committee after the

RSS is approved – should it be dissolved? Some answers to these questions are provided later in this paper.


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supply objectives. There is no point in granting these parties a seat at the table if they are not going to be bound by the joint decisions made by these RSS regional committees.

Reform overload

A further concern is the sheer scale and cumulative effect on local government of the many aspects of

central government’s current ‘reform’ agenda. Resource management legislative reforms are expected to be

in place by the end of 2022. Changes are also underway with effect on the funding of infrastructure, urban

development,27 regional development, land management28 and the provision of tertiary skills and training

services29. Other aspects of central government’s reform agenda – with effect on local government, include:

A water regulator ‘Taumata Arowai’ has now been established. A National Emissions Reduction Plan will be in place by the end of 2022 with uncertainty about the role

that may be expected of local government. Territorial authorities’ three waters infrastructure responsibilities are likely to be delivered by four

entities spread across New Zealand by early 2024. District Health Boards are about to be disestablished and replaced by a single ‘Health NZ’ entity, with

four regional offices. A new regional development agency (‘Kānoa’) has been established by MBIE. This will replace the

Provincial Development Unit. It appears to have no obligation to work with or through local government’s regional development agencies.30

Despite the work of the ‘Future for Local Government’ enquiry panel, the immediate challenge for local government is

how best to address local government’s resource management role in the face of the sheer magnitude, broadness,

complexity, lack of integration, and apparent absence of ‘overview’ of the cumulative effects on local government of

central government’s current multi-functional reform agenda. A more integrated central government agenda and a

clearer statement about expected cumulative outcomes is required.

Principles to guide the design of preferred resource management governance accountabilities, instruments, and processes

Subsidiarity and accountability - principles

In-house papers prepared by officials identify a set of ‘governance principles’ that may be considered in

designing NBA Plan and RSS development processes and implementation responsibilities. There are gaps and

a mismatch between these principles and some of the current proposals, as outlined in the following table.

27 Kāinga Ora is now playing a much stronger role than in the past in shaping urban communities. The National Policy Statement on Urban Form will

also have a significant effect on the planning of New Zealand’s larger urban centres. 28 The primary effect of the National Policy Statement on Freshwater Management will be changes to farming practices. 29 16 poly-techs have been merged to form one national entity Te Pūkenga. 30 Almost all these changes will take place before the ‘Future for Local Government’ review panel presents its final report (April 2023).

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Officials draft principles Commentary / thoughts

Clarity of roles and responsibilities

Conditional support. Accountability for delivery requires certainty about the roles of all NBA Plan and RSS agencies. Equally important is clarity about the relationship between different planning instruments e.g., the NBE Plans and RSS and other instruments such as Regional Transport Plans and Long-Term Plans. There is also a need for more clarity about the boundary of accountability between central and local government.

Decision-making is well informed and public participation proportionate

Conditional support. Current proposals are not sufficiently grounded in local information provision and participation opportunities.

Effective representation of differing interests, noting this does not mean direct representation for every constituent body

Conditional support. Different interests must be provided with effective but efficient representation opportunities. In the preparation and approval of NBA Plans and RSSs, local representation of local elected representatives must be a foundation consideration in designing future resource management governance arrangements.

Appropriate accountability and transparency for decision-making

Conditional support. Current proposals are not sufficiently grounded in local accountability. Nor is there enough clarity about how network infrastructure providers, MBIE, DOC, MPI etc., will be made accountable for the integrated decisions made via RSSs that may affect them.

Efficient, cost-effective, and workable

Conditional support. Current proposals may be efficient, without being effective. They also fail ‘workability’ principles.

Ensures integrated decision-making wherever possible within regions, whilst allowing for variation to reflect the different circumstances of communities

Conditional support. Current proposals are not the best way to achieve integration. Local variation should be more clearly provided for. Details about how various central government instruments will be integrated are currently unclear.

Give effect to the principles of Te Tiriti o Waitangi and uphold the integrity of Te Tiriti settlements

Support.

Able to be adapted over time to fit the changing needs of communities and the environment

Support.


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The core resource management question for New Zealanders to address is whether – and to what degree,

local government or central government should be at the centre of future resource management decision

making.31, 32 The Panel’s report fails to adequately address this important question. The exposure draft of

the NBA Bill also appears to reflect a similar failing.

Individual local councils must remain at the heart of decision making about the policy to be included in NBA

Plans. The preferred system should be one based on the principle of ‘subsidiarity’ – a system in which

decisions are made by those most affected by those decisions33. This means that decisions about ‘place-

making’, i.e., determining the character of the towns, cities and the regions in which people live, work, play

and invest should appropriately – and in the main, be made by those who are democratically elected to

represent the residents who live in these places34.

This perspective is strongly supported by long-term and highly respected resource management barrister Dr

Royden Sommerville. Mr Sommerville notes that effective resource management jurisprudence requires

application of values-based and participatory democratic systems, with devolution, subsidiarity, and

pluralism at their centre.35

The National Council of LGNZ reflected their concerns about the diminution of local government’s role in resource

management by adopting (2020) the following principles:

Those that are accountable for policies and their implementation need to have a meaningful role in the

development and approval of those policies.

Planning decisions should be taken at the level of those most directly affected. That

requires retaining a strong degree of local planning.

Local authority staff

There is also a concern about the proposed elevated responsibilities to be placed on local authority officers’

shoulders. Determining preferred resource management policy is not a ‘technocratic’ matter for officer

decision making, although agreed policy must be informed by officer-generated evidence and knowledge of

the intricacies associated with the inevitably complex nature of resource management legislation.

While it is perhaps true that some smaller councils struggle to fund, recruit, and retain strong planning staff,

this problem is not best remedied through an overwhelming diminution of the role of territorial local

31We have drawn on the paper referenced in an earlier footnote, as prepared for LGNZ by Gerard Willis, to help shape these principles. 32 Our focus here is on the policy decision-making role of councillors. We can see distinct advantage in neighbouring local authorities seeking out the

capability and capacity benefits that may arise from applying joint service arrangements for the processing of resource consents and private plan

changes, and consent monitoring. 33 See ‘Localism Q & A’s’ prepared by Dr Mike Reid from LGNZ for a fulsome discussion about the value and importance of subsidiarity. 34 It does not make sense for decisions about the character of a particular town’s CBD or local parks to be decided at a regional or national scale.

Local councils must not allow themselves to be relegated to the role of being an administrator of the place-making decisions made by someone else. 35 Dr R J Somerville QC ‘Improving the RMA: Legal Principles’ 2004.

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authorities.36 The problem is better remedied by applying many of the remainder of the Panels’

recommendations, and by incentivising territorial local authorities to partner up with their neighbours if

they feel this is best for their communities.

Local accountability concerns about the policy to be included in a Plan do not equally apply to the

implementation of the operational aspects of the Plan e.g., information gathering, the processing of

resource consents and / or the monitoring of compliance. There are considerable capability and capacity

enhancement opportunities if these services are delivered across a region rather than via a single local

authority. Shared service arrangements are a good solution.

The benefits arising from this solution should be balanced against the effect on local authority staff of the

proposed changes to resource management legislation. ‘Regional’ or combined plan making, and strategy

development would significantly reduce the need for employment of planners at the district level. The loss

of these staff, when combined with the loss of staff to the entities to be established to manage the ‘three

waters’ etc., will likely further erode the ‘critical mass’ required to make a local authority viable.

Preferred NBA Plan and RSS solutions

NBA Plans – preferred solution

NBA Plans should be a composite of district and regional plans for each district (see the following process

flow diagram).37 These Plans should also include the content of regional coastal plans.38 Each of these Plans

should be developed using committees made up of elected representatives from the affected district council

and the regional council.39 Under this arrangement, there would be a joint plan, and a joint committee to

prepare this plan, for each district / territorial local authority in an area.

One method for developing these joint plans would be for each district and region to take responsibility for

developing their own draft plans. These would be developed in parallel and then the two parts would be

integrated. The subsequent steps would be like those recommended by the Panel.

Require the Joint Committee to prepare a joint proposed unitary plan incorporating regional, coastal and district planning matters and the other requirements specified in the NBE Act for each district.

Delegate authority to the Joint Committee to adopt the proposed Plan. Notify and invite submissions on the proposed unitary NBA Plan. Appoint an experienced Commissioner or a retired Environment Court Judge to lead a hearings panel

(inclusive of regional, district, mana whenua and DOC representatives) to resolve different views expressed in submissions on the proposed NBA Plan.

Apply a truncated appeals process to resolve matters upon which agreement cannot be reached on the unitary NBA Plan decisions of the special hearings panel.

36 Furthermore, there is a case for regional councils to continue to expand the collaborative support provided to their colleague regional councils via

their nation-wide network of Special Interest Groups (SIGs). 37 This may include a joint committee made up of neighbouring unitary district councils. 38 Unless the affected territorial local authorities should decide to develop a plan covering contiguous districts – as is the case in the Wairarapa. 39 The only difference to the current regional transport committee model is that there would be a joint regional / district committee for each district

in a region – not just one for the whole of the region.


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Preferred alternative for the preparation of NBA plans

Establish a joint territorial local

authority / regional council NBA

Plan Committee for each district

Require the joint committee to

prepare and adopt a joint proposed

unitary plan incorporating regional,

coastal and district planning matters

Notify and invite submissions on the

proposed unitary NBA Plan

Appoint Planning Commissioner or

retired Environment Court Judge to

lead a hearings panel (inclusive of

regional, district, mana whenua, and

a DOC representative to resolve

different views expressed in

submissions on the proposed

unitary NBA Plan

Apply a truncated appeals process

to resolve matters upon which

agreement cannot be reached on

the proposed Regional NBA Plan

hearings panel

Representatives – experienced

resource management elected

councillors from the territorial

local authority and the regional

council, mana whenua

representatives and a DOC

official

Serviced by a joint

regional / district

secretariat with

administration,

planning and

engagement

expertise.

Purpose – establish policies

and rules to avoid, remedy and

mitigate the adverse effects of

activities.

Content – reference matters

outlined in National Planning

Framework, RSS, NBE Act CC

Act– purpose and outcomes,

appropriate policy from

existing plans.

Include relevant provisions

from regional policy

statements, responses to state

of the environment trends,

mana whenua plans.

Require each local authority to

implement the unitary NBA Plan

requirements with the help of

service level agreements enabling

establishment of a scaled-up officer

resource management.

implementation unit.

Invite

neighbouring

territorial local

authorities with

common resource

management

challenges to

establish joint

committees with

their neighbours /

the regional

council.

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Require each local authority to implement the unitary NBA Plan requirements, with the help of service level agreements enabling establishment of a scaled-up officer resource management implementation and consent processing unit.

Alternative NBA Plan development options

The above proposition is the base case. It would be enhanced by district and city councils being actively

encouraged or incentivised to develop an NBA Plan over a wider area than a single district. This area could

encompass neighbouring district councils with similar geography and similar / overlapping resource

management challenges. However, such alignments should be established at the behest of the affected local

authorities, not imposed on them by central government.

Wairarapa is an example where one district plan already successfully operates over the rohe of three district

councils. This plan also aligns with the ‘whaitua’ approach applied over a similar area by the Greater

Wellington Regional Council. It thereby and importantly, reflects the rohe of local iwi.

A further alternative is for each territorial local authority to be empowered to prepare their ‘local chapter’

for inclusion in a regional NBA Plan. The attraction of this option is that it preserves local accountability for

‘place based’ decision making while still reducing the number of planning instruments.

The challenge to be resolved with this option is the question of how far to go in protecting the content

offered within each ‘local chapter’ from amendment to enable it to best fit within a regional NBA Plan.

An option to overcome this challenge is to require the regional committee to ‘take account of’ but not

necessarily ‘give effect to’ the content of a ‘local’ chapter of the regional NBA Plan – as prepared by each

territorial local authority of a region.

A further problem with this variation / alternative solution, is that it would generate complex questions

about how, when and who would be responsible for resolving appeals about the egregious content of the

‘local chapter’ of a regional plan. Requiring a district council to use appeal provisions to overcome the

matters included in its ‘own’ plan seems incongruous. Potential solutions to this challenge may add

complexity rather than simplify the Plan making process.

Regional Spatial Strategies - preferred solution

Individual local authorities should also have a clear governance ‘place-at-the-table’ for the preparation of

RSSs. Given the future-focused and integration role of these strategies, a wide range of parties should have

equal influence. Five RSS Committee ‘membership’ options have been put forward by the Panel or by central

government officials.


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Options Comment 1 Local authority officials

(Panel recommendation) Not supported. Does not provide for appropriate accountability

2 Elected members from TAs and the regional council

Supported. All local authorities in a region should be represented. The Committee should be supported by a strong regional / TLA officials group

3 Regional councillors only Not supported. An integrated and accountable approach requires both regional council and TLA representatives

4 The ‘wise – people’40 appointed by and on behalf of local authorities

Not supported. Fails to provide sufficient transparency and accountability for decision making

5 Representatives from central government, network providers and mana whenua

Supported, assuming questions about the size and balance of the make-up of the Committee can be resolved

The second of the above options is preferred. RSSs should be prepared by a single joint regional committee.

This committee would have district / city and regional councils, central government, iwi / Māori, and

infrastructure / and network suppliers at the table. All territorial local authorities should have a seat at the

table. This seat should be held by an elected member. The RSS would be prepared by and be supported by a

secretariat or steering group of technically competent professionals from across the constituent parties,

with leadership of this secretariat provided by the regional council.

The regional committee should be a committee of the regional council rather than it being a joint committee

of all the constituent local authorities of a region. This option is simpler. It enables funding, logistics,

support, and the management of legal actions to be more effectively managed than would be the case

under a regional committee of the whole.

The Panel recommended that the RSS joint committee be dissolved when an RSS was adopted. They

expected local authorities would then take the lead in monitoring implementation of the Strategy, initiating

implementation agreements, identifying if amendments were needed and reconstituting the RSS

Committees at that time. This is not a realistic approach. The RSS is an integrating resource management

document requiring on-going attention from central and local government, mana whenua and infrastructure

providers. We live in a world experiencing large and continuous contextual challenges. The RSS regional

committee will provide a necessary platform for on-going information sharing. Monitoring and adjustments

to multi-party implementation agreements will also be a constant requirement.

The Panel’s proposal that local government is represented on the regional committee by officers is fraught

for several reasons. Officers have a statutory duty to their employer, not to the wider region. Further, the

appointment of officers to the regional committee may make the RSS technocratic and limit its ability to

40 This is a ‘turn-of-phrase’ used by both the Panel and MfE officials. It makes little sense to use this term, however we assume it implies those who

are accredited commissioners etc., with a track record in making complex resource management decisions.

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directly engage and be accountable to stakeholders and the community. The appointment of elected

members helps overcome these problems.41

All parties should be held to account for implementing the matters recorded in their RSSs. RSSs should

absorb the matters currently addressed in Regional Policy Statements.

Close consultation with the parent agencies of all persons appointed to the Committee should be required.

The committee should also be required to ‘take account of’ but not necessarily ‘give effect to’ the

contributions of each contributing agency. Truncated appeal rights should be provided. For local

accountability reasons, the Minister should not be empowered to make decisions when and if regional joint

committees are unable to reach agreement themselves. Limited appeal rights are a better solution than

enabling the Minister to usurp the decisions of the joint regional committee. Central government should be

encouraged to find mechanisms through which it may provide an efficient, integrated, and coherent ‘whole-

of-government’ contribution to the deliberations of the RSS regional joint committees.

41 Making resource management decisions is complex. It is a task not suited to every elected local government representative. Local government is

aware of this challenge. Many have made extensive use of Commissioners and ‘Making Good Decisions’ certificate holders – some of whom are

elected members. Section 34A of the RMA appropriately states that commissioners cannot approve a proposed policy statement or plan.


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Other key matters of importance

There are three other important Panel proposals that are deserving of strong support.

Climate change: Mitigating the volume of emitted greenhouse gases and helping communities to adapt /

build resilience against the effects of climate change are subjects that demand urgent attention at all levels

of government. The intention to prepare a Climate Change Adaptation Act is appropriate. The intention to

require climate change matters to be addressed in the NBA Plans and RSSs is also appropriate. These

measures will improve the lives and choices of current and future generations of local and regional New

Zealanders.

Moving beyond focussing on the management of effects: There is a critical need for New Zealand to

promote positive outcomes by more actively planning use, development, and protection of natural and built

resources. RSSs have a key role to play in achieving this objective. They will:

➢ Provide an important opportunity to set out a vision of where and how cities and regions should grow, how biodiversity or natural hazard areas should be protected and how infrastructure may best be located and utilised - for the benefit of the current and future citizens of a region.

➢ Better provide for the big picture / best spatial distribution / best regional value challenges facing different parts of all regions.

➢ Be a sensibly scaled means for integrating the planning the intentions of all agencies with influence over the long-term future use, development, and protection of the natural and built resources and infrastructure of a region.

All parties associated with the preparation of RSSs should be obliged to give effect to these RSSs.

Te Tiriti o Waitangi: Local authorities are not ‘the Crown’ and are therefore, not the Treaty partner. However, local authorities are agents of the Crown. They carry regulatory and policy making roles that reflect and give expression to the Crown’s sovereign duty to manage natural resources. Accordingly, it is incumbent on local authorities to properly represent the Crown by adopting a partnership approach with Iwi/Māori to the preparation of resource management plans and strategies. The Panel identifies several measures to recognise this partnership principle. They include referring to the

concept of Te Mana o te Taio in the purpose of the NBA Act, requiring local government to ‘give effect’ to

the of te Tiriti o Waitangi, and requiring mana whenua representation on regional committees. These

measures are appropriate.

Local government must continue to demonstrate its commitment to te Tiriti o Waitangi, as it develops and

implements NBA Plans and RSSs. This commitment may be best met by providing institutional arrangements

suited to the rohe of the different iwi of a region. In most places of New Zealand, this is more often reflected

in the boundaries of districts than the boundaries of regions.42

42 This supports the proposal to prepare integrated plans for each district rather than a single regional plan – as outlined in the paragraphs that

follow.

Page I 25

Summary of preferred solutions The following table lists the key proposed areas for resource management improvement, the Panel / government’s solution, and a suggested

preferred solution. A second table describes how the ‘preferred solution’ addresses the primary concerns driving the need for reform of resource

management legislation.

Subject Panel’s recommended solution Preferred solution

Natural and Built Environments Plans (NBA Plans)

Combine regional policy statements, and all regional and district plans within a single plan for each region.

Not supported. Combine each district plan with those aspects of each regional plan affecting a district. Combine the regional policy statement with the RSS rather than with the NBA Plan.

Number of plans Reduce the number of planning documents from more than 100, to just 14.

Not supported. Reduce the number of planning instruments from more than 100 to about 65. Reduce this number further by encouraging neighbouring territorial local authorities to jointly prepare their NBA Plans.

Consistency between NBA Plans and RSSs

Require the combined plans to be consistent with Regional Spatial Strategies.

Supported. Note this implies that the RSS(s) is prepared before the NBA Plans.

Purpose of Natural and Built Environments Act

Require the NBA Plans to reflect the revised purpose and outcomes of the NBA Act.

Supported.

National Planning Framework

Prepare a National Planning Framework. Include urban design considerations in this Framework to overcome the challenges arising from the problematic use of such terms as ‘amenity’.

Conditional support. Subject to review of the content (yet to be fully defined) to be included in this Framework. Note this implies MfE working at pace and giving priority to the early preparation of the National Planning Framework, including National Planning Standards. (NB support for these provisions also implies that public participation processes are put in place proportionate to the significance of the issue to be addressed in the National Planning Framework for any region / district. These processes should be respectful to the role of local democracy).

Regional Committee for NBA Plans

Prepare regional Natural and Built Environments Plans with the assistance of a regional committee comprising representatives of central government, the regional council, all constituent TAs in the

Not supported. Establish a committee made up of elected members from the district council and the regional council. Include a representative from DOC on this committee on matters related


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region, mana whenua and a representative of the Minister of Conservation.

to the coastal marine environment. Include representatives from mana whenua.

Membership of regional RSS committees

The proposed regional committee would be made up of representatives of central government, the regional council, all constituent TAs in the region, representatives of network infrastructure providers and mana whenua.

Conditional support. Ensure local government representatives are elected rather than council officers. Empower the local authorities who have responsibility for developing the RSS to reach agreement with iwi / Māori with rohe within a region / district, and central government / network providers about the balance of representation on these committees.

Matters to be considered when preparing NBA Plans

In preparing the NBA Plan, draw on the National Planning Framework, the purpose, and outcomes of the Natural and Built Environments Act and the Strategic Planning Act, the outcomes recorded in the proposed RSS, the effectiveness of the policy recorded in existing RMA plans, the trends revealed within state-of-the-environment data, and the content of mana whenua planning documents.

Supported.

Draft NBA Plan Prepare a ‘discussion document’ in advance of preparing the NBA Plan

Not supported. The proposed joint committee should prepare a ‘proposed’ NBA Plan and invite submissions on it, rather than preparing a discussion document.

Consistent application of regional objectives etc.

When the issues and outcomes, land use patterns, resource pressures and ecological values are common, NBA Plans should apply consistent ‘regional’ objectives, policies, and methods across the area covered by all the TA’s in a region. Some capacity is envisaged for local variation when there are clear geographic variations to address.

Support. Preparing joint plans for each district rather than a single plan for each region, will enable geographic variations to be appropriately addressed.

Engagement on NBA Plan discussion document

Facilitate widespread engagement on the ‘discussion document’ and use the results of this engagement to draft a NBA Plan.

Not supported. Widespread engagement and a formal submission process should be provided in response to the release of a draft joint NBA Plan. A ‘discussion document’ may have some value but it should not be used to supplant the opportunity to make formal submissions, nor used as an excuse to inappropriately slow the process of preparing a Plan.

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MfE review of draft plan

Prior to formal notification of the plan, invite the Ministry for the Environment to review the draft plan to determine its adequacy.

Not supported. MfE should not be given this role. If MfE have issues with the draft plan, then they should prepare a submission to identify these issues.

Hearing of submissions on the NBA Plan

Following notification and a call for submissions, an independent panel, chaired by a sitting Environment Court Judge, would hear submissions, review the draft NBA Plan, and make recommendations on its provisions, with truncated appeal rights.

Supported. This implies empowering experienced Commissioners to chair the hearing. NB the Court’s panel should include representatives of the regional council, the affected district council, mana whenua and DOC (for matters related to the coastal marine environment).

Regional Spatial Strategies (RSS)

Prepare RSSs to plan for and set 30-year / long-term measurable objectives and milestones and help resolve fragmented resource management decision making

Supported. Include appropriate aspects of regional policy statements in the RSS.

Regional committee to prepare RSSs

Establish RSS regional committee with an independent chair, local government officers and representatives of central government including DOC officials, as well as mana whenua.

Conditional support. Include elected representatives of each district council (rather than officers), central government and relevant network providers on the committee (to be present when matters affecting them are addressed).

Consultative process for preparing RSSs

Require members of the committee to consult with the bodies that they represent. Require the RSS regional committee to use a modified form of the special consultative procedure – as listed in the LGA, to achieve a consensus decision on the content of the RSS. Empower the committee to have the final mandate to approve their RSS.

Not supported. Provide for the preparation of a proposed RSS and rights of appeal on a notified strategy in a similar manner to that to be provided for NBA Plans.

Delivery of matters listed in RSS

Expect accountability for delivery of the RSS to sit with all councils in the region. NB It may also be the case that a responsible Minister (or Ministers) may be accountable for the delivery of aspects relating to them.

Supported. Accountability responsibilities, including for affected Ministers should be as recommended (NB on the proviso that a formal submission and appeal process is established on a proposed RSS).

Consistency of RSS with other instruments

RSSs would need to be consistent with the purposes of the NBA, LGA, CCRA and LTMA, and instruments included in the National Planning Framework. Require RSSs to take into account of other national strategies and plans, including the Emissions Reduction Plan and the national 30-year Infrastructure Strategy

Supported.


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Further details about how the primary issues of concern to the Panel will be resolved, via the preferred alternative solutions described in the above table, are outlined below.

Issue identified by the review Panel The preferred solution to these issues

Inappropriate parochialism and problems with the use of such terms as ‘amenity’ – remover reference to ambiguous terms.

Prepare expanded National Planning Framework. Prepare RSSs. Provide appropriate definitions in the NBA Act and via an expanded range of Planning Standards.

Too many plans – reduce the number of plans. Prepare joint Natural and Built Environments Plans for each district encompassing relevant regional plan and district plan matters. Integrate regional policy statements into RSSs. Invite small district councils to consider preparing joint plans and shared-service arrangements with their neighbouring TLAs.

Duplication of rules between regions and districts - the split of planning functions across regional councils and territorial local authorities has resulted in poorly integrated management across various parts of the environment.

Prepare joint Natural and Built Environment Plans for each district encompassing relevant regional plan and district plan matters. Require application of digital plan mechanisms to enable the regional and district policies and rules applying to a broad suite of common resource use activities to be more clearly apparent.

Inconsistency of plans across boundaries – prepare regional plans.

Prepare National Planning Framework.

Complexity of rules – simplify rules. Prepare National Planning Framework / Planning Standards and adopt other measures, as outlined above.

Labour markets are transcending TLA boundaries – regional approaches are required.

Recognise that local authority boundary adjustment is not a matter that should be considered as part of the current resource management reform agenda. There are many matters besides labour markets that will affect district and regional boundaries. Adopting an integrated approach to catchment management remains a priority.

Infrastructure transcends TA boundaries – regional approaches are required.

Invite network infrastructure providers to be members of the regional joint committee charged with responsibility for preparing the RSSs.

RMA plans and processes are numerous, difficult to navigate and vary in quality - establish entities of scale to overcome capacity and capability constraints.

Address this issue by requiring the preparation of joint district / regional NBA Plans and by encouraging local government to establish shared service arrangements for their implementation.

Undue complexity and inefficient processes leading to unnecessary expense and delay – make processes simpler.

Adopt the proposed solutions, as outlined in the above table, noting these will reduce complexity and create process efficiencies.

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Issue identified by the review Panel The preferred solution to these issues

Current provisions focus on management of effects, favour the status quo, and hinder the ability of the system to plan for the long-term future and respond to change.

Introduce Natural and Built Environments and Strategic Planning Acts, with amended purpose and with clearer specifications about the matters to be addressed in NBA Plans and RSSs.

Current land and water use is proving increasingly unsustainable.

Introduce Natural and Built Environments and Strategic Planning Acts. Amend the RMA purpose statement and prepare National Outcome statements. Use National Planning Framework to define environmental limits.

Environmental limits need to be given more prominence. Prepare National Planning Framework and National Policy Statements to address limits and targets and require these to be implemented via NBA Plans.

Land use matters are contributing to housing supply challenges.

Require this matter to be addressed in RSSs.

RMA is unwieldy and complex. Prepare NBA and SP Acts.

Insufficient effort toward decarbonisation and adaptation / building community resilience against the effects of climate change.

Prepare ‘Managed Retreat and Climate Change Adaptation Act’. Prepare National Climate Change Adaptation Plan. Clarify accountability of local government for matters related to climate change adaptation / community resilience and decarbonisation / mitigation.

Improve evidence gathering, monitoring, compliance, and enforcement processes.

Invite local authorities to continue to improve the rigor and extent of these practices and incentivise expanded shared service arrangements between district and regional councils, after preparing NBA Plans.


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Page I 31

Conclusion The Panel’s proposed amendments to the RMA will significantly improve the efficiency of New Zealand’s

resource management regime. However, not all the Panel’s recommendations are in the best interests of

effective resource management.

Individual local council elected members must remain at the heart of NBA Plan and RSS ‘policy’ decision

making. This is because the essential ingredient for successful placemaking is the opportunity for

democratically elected councillors to express their community-driven knowledge about local resource

management values. Without this ‘bottom-up’ approach it will be more difficult to achieve community

cohesion, pride, transparency, adaptability, and accountability for desired environmental outcomes.

Concerns about the need to retain bottom-up plan and strategy making may be overcome by adoption of

two main changes. The first concerns NBA Plans. These should be developed as a composite of district and

regional plans for each district, including regional coastal plans. Each of these should be developed using

joint committees made up of elected representatives from the affected district council and the regional

council. Under this arrangement, there would be a joint plan for each district / territorial local authority

area. However, the onus must still fall on all councils and all council staff in a region to seek out ways to

deliver their resource management operational and implementation tasks more efficiently and effectively.

The second concerns RSSs. These should be prepared by a separate single joint regional committee

operated by each regional council. This committee would have district / city and regional councils, a

representative of central government / infrastructure / network suppliers and iwi / Māori, at the table. All

parties should be held to account for implementing the matters recorded in their RSSs. RSSs should absorb

the matters currently addressed in regional policy statements.

In summary, the objectives of the resource management reform process were to: make the RMA simpler

and easier to deal with; consolidate planning rules; and streamline and clarify roles and responsibilities. A

combination of the ‘preferred solutions’ outlined above and many of the remainder of the Panel’s

proposals, will resolve the efficiency and effectiveness challenges associated with the current resource

management regime.


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Key Contact: John Hutchings

Partner, HenleyHutchings

[email protected]

Phone: 021 679 654

HenleyHutchings

Level 4, 276 Lambton Quay

Wellington CBD, 6011

www.henleyhutchings.co.nz

mailto:[email protected]

http://www.henleyhutchings.co.nz/

Resource management legislative reform - Local Government ...

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