The Planning Bill and Natural Environment Bills (the Bills) passed their final stage in Parliament on Tuesday. Shortly they will be signed into law by the Governor-General.
Once they have received Royal Assent the Bills will be in force and the transition to the new system will commence. During the four-year transition period the Resource Management Act 1991 (RMA), as amended by the new Planning Act, will continue to be the principal environmental and planning legislation. This transition period will be a challenging and resource-intensive period for those developing and using the new system.
This practical guide focuses on councils implementing, and others using, the amended RMA to get projects underway during the transition period.[1] It highlights the immediate changes to the RMA and Fast-Track Approvals Act 2024 (FTAA) on Royal Assent and the transitional consenting changes that will be in force one month after Royal Assent.
Immediate changes following Royal Assent
The immediate changes to the RMA remove all references to Mana Whakahono a Rohe and loosen controls over discharges. [2]
Transition period (beginning one month after Royal Assent until the new system is fully in place)
One month after the Planning Bill comes into force (referred to as the transition date) the more substantive transition to the new system begins, with the amended RMA incorporating some elements of the new system. This includes:
The removal of 'out-of-scope' effects from consideration during consenting and the introduction of new permitted activity pathways
The introduction of new procedural principles
The introduction of new 'initial national standards'
Extension of 'plan-stop'
The establishment of the new Planning Tribunal which will exercise limited jurisdiction during this time
Changes to enforcement and compliance.
'Out-of-scope' effects and new permitted activity pathway
One of the key changes to the RMA during the transition period is the removal of what are referred to as 'out-of-scope' effects from environmental effects assessments for district land use consents under section 104 of the RMA (as well as designations under section 171). 'Out-of-scope' effects are also excluded from information requirements, RMA notification and non-complying activity assessment matters and further information requests.
New RMA section 104(1A) lists the 'out-of-scope' effects as follows:
In relation to residential activities (excluding the protection of historic heritage) the area of glazing, presence or absence of balconies, outdoor living space, internal layout, and the size of a residential unit or landscaped areas (except in relation to permeability)
Negative effects on trade competition (including on competing providers of input goods and services)
Effects on retail distribution
The lack of demand or financial viability in relation to a project
Types of residents to be housed in a new development
Views from private property.
There are some uncertainties as to the correct interpretation and intended application of some of these effects, which may later be clarified. For example, it is currently unclear whether "internal layout" is limited to internal unit layout or whether it extends to the internal layout of a building or residential site.
Consent authorities may disregard provisions in RMA planning instruments that regulate out-of-scope effects and may also amend their district plans without using the Schedule 1 process to remove or modify, to the extent necessary, provisions that deal with such effects. This approach may be appropriate and preferable where 'out-of-scope' effects are readily identifiable within plan provisions but could be challenging where provisions are more complex and/or integrated, requiring planners to dissect provisions. In the latter case it may be preferable to simply rely on the exclusion of 'out-of-scope' effects during the consenting process or the new permitted activity pathway (discussed below).
The new permitted activity pathway in section 104AA enables an applicant to secure a permitted activity notice, for a district land use that contravenes a rule or standard relating to an 'out-of-scope' effect. Section 104AA is modelled on section 87BB[3] Moreover, the list of 'out-of-scope' effects in new section 104(1A) does not currently align with those to be excluded under section 14 of the Planning Bill. Only the 'relatively straightforward' effects are intended to be excluded during the transition period, with more complex effects excluded once the new system is in place. This should be kept in mind when undertaking, and considering, effects assessments.
Additional procedural principles
During the transition period those exercising powers or performing functions in relation to consents and notices of requirement are required to apply additional procedural principles in new section 18B. These principles require all practicable steps to be taken to, for example, act in a pragmatic way that supports practical solutions.
Again, questions as to interpretation arise in relation to some of these principles. For example, the meaning of "acting pragmatically" is uncertain and subjective. Simon Court[4] explained during the second reading of the Bills that the term is intended to require authorities "to make trade-offs and to see the trade-offs, to see the benefits in development applications and proposals to use land, and where there are effects to be managed, to come up with practical solutions and to accept an applicant’s or proposer’s solutions to manage those effects."
The transitional procedural principles do not fully align with the procedural principles under section 13 of the Planning Bill. Ultimately, councils will need to check any processes developed in response to transitional procedure principles.
New initial national standards
The RMA is amended to enable the Minister to introduce new initial national standards during the transition period, the rules of which apply (and override existing RMA instruments in the event of conflict) during RMA decision-making. This will likely add further complexity to decision-making in the event of conflict.
'Plan-stop' extension
Following amendments to the RMA in 2025, plan-making processes under the RMA have been suspended; referred to as the 'plan-stop' provisions. These provisions significantly reduced the power for councils to change or review RMA plans (with limited exceptions) (noting that private plan changes are unaffected). The Planning Bill extends the 'plan-stop' such that plan-making processes (including private plan changes from 1 January 2028) cannot occur, with limited exceptions.[5]
New hearing tribunal – Planning Tribunal
Under the new system the Environment Court will be joined by the new Planning Tribunal to hear and determine certain matters. During the transition period the Environment Court jurisdiction largely remains as it currently is. However, once the Planning Tribunal is established, on a date set by Order in Council, it will replace the review role of the Environment Court (and local authorities) on specified RMA decisions. For example:
An application to review a determination by a local authority not to proceed with the notification or hearing of an application for a resource consent because additional consents are required[6], is to be lodged with the Planning Tribunal rather than the Environment Court
An appeal against the decision of a requiring authority to refuse consent for an activity that may interfere with the designated use[7] is to be lodged with the Planning Tribunal rather than the Environment Court
Some objections against decisions of the local authority[8] are now to be reviewed by the Planning Tribunal rather than the local authority.
We note that the Planning Tribunal will not have the jurisdiction to review notification decisions until the system is fully in place.
Enforcement and Compliance
During the transition period the RMA is amended to provide new compliance and enforcement tools such as adverse publicity orders, strengthened powers of entry and search and increased penalties for offences committed against the RMA.[9]
Other matters
Finally, there will be a number of changes to RMA freshwater farm plans, including to provide for limited certification of freshwater farm plans and the inclusion of Health New Zealand and operators of emergency service facilities as network utility operators who are eligible to be approved as requiring authorities under the RMA.
Existing approvals and new applications
During the transition period all existing RMA resource consents and other approvals remain in effect and once the new system is in place, RMA approvals will be automatically rolled over into the new system and treated as their new system equivalents, that is, planning consents.
Extended duration of certain existing consents
The duration of certain existing resource consents that would otherwise expire during the transition period are extended to at least two years after the new system is in place, and up to four years if provided for by regulations.
New applications
A consent application made under the RMA before the transition date continues to be processed under the RMA as if the RMA has not been amended by the Bills. Applications made after the transition date are to be processed under the RMA as amended.
The FTAA will continue to be available for projects that require resource consent and/or other approvals during the transition period (and for now at least once the new system is fully in place). During the transition period the section 104(1A) 'out-of-scope' effects will be removed. In relation to other matters there is uncertainty in the transitional provisions that will need careful consideration.
Final move away from the RMA
Once the new national instruments are in place[10] regional spatial plans have been decided, and land use plans and natural environment plans have been notified the new legislation will apply, the RMA will be repealed via Order in Council and the RMA along with all RMA instruments will cease to apply.[11]
Hold on tight
Resource management system developers and users are entering a period of significant change and resourcing demand as we navigate this fundamental shift in our approach to planning and natural environment law.
The Buddle Findlay team is well positioned to advise you on what these changes might mean for your projects or existing undertakings, operations and responsibilities so if you require any assistance, please contact a member of our team if you would like to discuss the potential implications of the new legislation and what this might mean for you.
1 We note that in addition to consenting another immediate focus under the new legislation is on developing national instruments and preparing planning instruments that will underpin the new system. We will be providing practical guidance on these matters in the coming weeks
2 Changes are made to sections 79 and 107 of the RMA to increase the types of allowable discharge effects
3 Section 87BB is also amended during the transition period so that in deciding whether to give notice of a permitted activity the consent authority must disregard any 'out-of-scope' effects if it is only because of the 'out-of-scope' effects that the project requires a resource consent in the first place in the RMA but, unlike section 87BB, there are no thresholds to be met in securing a notice. Challenges in trying to remove 'out-of-scope' effects from other consent triggers will arise and will need to be carefully worked through in each case.
4 Simon Court is the parliamentary Under Secretary for RMA Reform (and also Infrastructure)
5 During the transition targeted changes may however be made to RMA plans to remove the 'discrete effects' from planning provisions, private plan changes may occur with Ministerial approval and Ministers can modify or remove plan provisions if they negatively impact economic growth, development capacity and employment.
6 Section 91 of the RMA
7 Sections 176-178 of the RMA
8 Section 357 RMA
9 Penalties for a contravention against section 338(2) for example, an excessive noise direction are increased from $10,000 to $15,000 and the fine for a continuing offence is increased from $1000 per day to $1500 per day. Penalties for a contravention against section 338(3) for example, wilful obstruction of any person in the execution of any powers conferred by the RMA are increased from $1500 to $5000.
10 Our next practical guide will provide detail on the illustrative National Policy Direction that is currently open for submissions
11 As noted above, we will be releasing further guidance on the development of the new planning system (national direction, regional spatial plans, and land use and natural environmental plans) in separate guidance over the coming weeks