There are two Bills – a Natural Environment Bill and a Planning Bill – a split which marks an abrupt end to more than three decades of integrated environmental management under the RMA. 

Collectively, they take a more enabling approach to use and development and are centred around property rights. 

“The Bills are extensive, and there are some positive elements, but our initial look has also thrown up some concerning features,” said EDS Reform Director Dr Greg Severinsen.

“Of most concern is that the Bills introduce the concept of regulatory relief, which is a significant threat to environmental wellbeing. Councils will have to give ‘relief’ to landowners, in the form of cash, rates relief, the provision of experts, or bonus development rights, when certain protections are imposed, including for indigenous biodiversity, outstanding landscapes and high natural character areas. 

“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.

“A second area of concern is the relationship in the Bills between development and protection. Unlike the RMA, the purposes of the Bills are descriptive only and play no role in decision-making. Instead, decision-makers will have to weigh up a shopping list of ‘goals’, with different lists set out in each Bill.

“Some are protective. For example, one goal in the Natural Environment Bill is no net loss of indigenous biodiversity. But it’s not clear how conflicting goals will be resolved, within and across the Bills. The goals are expressly subject to another section that allows Ministers to resolve conflicts via national direction; there’s no clear legislative hierarchy or prioritisation.

“Thirdly, at first glance, the Natural Environment Bill’s framework for environmental limits has some good features. For example, the ‘purpose’ of limits is to safeguard life-supporting capacity and they must be set for air, soil, water and indigenous biodiversity. 

“There’s also recognition of the need for improvement where limits have already been infringed, including the production of an ‘action plan’. However, the timeframe for correction is left wide open. A lot is also being left to voluntary mechanisms. In fact, regulatory controls on land use are not even allowed in an action plan unless non-regulatory mechanisms and farm plans have been explored first.

“There are other concerns. In setting limits, councils are directed to weigh up environmental protections against local aspirations for economic development. National level limits, where they are made, can also be made less stringent by councils if they can ‘justify’ it. Caps on resource use are not necessarily required because of a limit. The relationship between limits and the broader, conflicting goals in the Natural Environment Bill is not clear. 

“Overall, this doesn’t look like a strong limits framework.

“The effects threshold has also been raised. This means ‘less than minor’ effects will not be able to be considered. It’s still not clear what, exactly, this will mean in practice (there’s a new definition). But the great failure of the RMA has been its inability to deal with the cumulative impact of small-scale effects. We would question the assertion that 46 percent of consents under the RMA are really ‘unnecessary’ and can be dispensed with.

“Fourthly, restrictions on legal standing and constraints on public participation are concerning. 

“Under the Natural Environment Bill, public notification of consents will be allowed only where they generate significant adverse effects. This is much higher than the current threshold of ‘more than minor’ and is inappropriate given that many of these effects will be on public resources like freshwater. 

“Even where there are significant effects (eg from large-scale mining operations), submitters will have to reside in the relevant district or region. This would cut out most environmental NGOs who have the capacity to engage, since they operate at a national level. That is outrageous and must change.

“Finally, spatial planning, provided for in the Planning Act, is a much-needed addition. However, to be effective spatial plans need to include constraints mapping to give a clear sense of where development should be avoided. That requires robust information, much of which we do not yet have. Limits need to be set first. 

“There are bright spots in the Bills. For example, existing water conservation orders are preserved, as advocated by EDS, and new ones are still possible. There will be more standardisation in zoning, which is broadly appropriate for many urban areas (but cannot just become a paint by numbers exercise, especially in rural environments like the Mackenzie Basin). 

“A national e-plan viewer is a very good idea. It is positive that there will be fewer plans (17 instead of over 100). 

“Overall, however, the Bills leave us concerned. We cannot afford to keep flip-flopping across governments. But changes need to be made to these Bills to create a stable framework that recognises the importance of basic environmental protections.

“Adding to the confusion is the recent announcement that local government is going to be overhauled at the same time. How is that going to work with the new Bills, since they have been designed to rely on stable regional level governance for the next five years?

“Over the coming weeks, EDS will be analysing both Bills intensively and producing a full submission to select committee. We will be releasing a draft, along with a submission template that people can use to express their own concerns about how the Bills might affect them, prior to the submission deadline. 

“Next week EDS will also be running a webinar exploring the two bills in more detail,” concluded Dr Severinsen.