Lawyer questions balance of environmental, economic goals in RMA directions

An environmental and planning law partner believes the Government's national policy direction proposals do not yet reconcile the tension between economic development and environmental protections, as promised in the new resource management system.

The new mega Ministry for Cities, Environment, Regions and Transport (MCERT) was working through 387 public submissions on the proposed illustrative national policy direction (NPD) framework that went out for consultation from August to October.

The illustrative NPD was intended to translate goals of the Planning and Natural Environment Acts - replacing the Resource Management Act (RMA) - into national policy directives, guiding how the new planning system would work in practice.

Presenting themes like primary production, resources and public values, the non-legally binding NPD would be the mechanism for the Government to set national priorities and direct those preparing regional plans.

RMA Reform Minister Chris Bishop said in August, the NPD would identify how key system conflicts should be resolved.

But Daniel Minhinnick an environmental and planning law partner at firm Russell McVeagh - said the new RMA system will move away from strict environmental bottom lines and seek to achieve a range of competing goals at once.

But he said it was unlikely this would occur in practice.

"There needs to be some balancing of how those different goals are to be reconciled. That's where that national direction is critical," he said.

"[The illustrative NPD framework] still doesn't really lock in how all of those tensions between the economic development goals on the one hand are to be managed against, for example, some of those environmental bottom lines or other biophysical aspects.

"So that detail is going to be critical to the success of new system."

Minhinnick said the future system will have a greater focus on monitoring, compliance and enforcement.

He said there could be greater flexibility for farmers, like better recognition of farming practicalities under a more responsive system than the current RMA.

"I do see this new system as very much being driven by trying to cut red tape, while still including some environmental protections," he said.

"I think there is a political question as to where that balance is set, and whether there needs to be greater environmental protection than proposed.

"But from a farming perspective or a rural perspective, I think this new system is seen as being more workable in the sense of avoiding some of those key practical challenges that have been experienced under the RMA."

But Minhinnick said farming companies or corporates would still need to look at "doing the right thing" as the New Zealand economy and "NZ Inc' relied on a clean, green image.

"On the flip side, there are risks to the environment potentially, depending on where that lands.

"All of those debates all have to be played out. That ends up being a more challenging, complex process with a whole lot of uncertainty and litigation no doubt resulting from it."

Minhinnick said reorganising local government was clearly a potential risk to the Government's current timeframe for the rollout of the new system, equally if there was a change of government.

He added that he expected the regulatory relief framework - in which councils had to compensate landowners with culturally, naturally or historically significant land - would likely disappear.

Agriculture, horticulture groups submit on NPDs

In its submission, industry group Federated Farmers said it wanted the system to recognise the "freedom to farm" as the starting point for private landowners, that was an unimpeded right, except when there was an identified risk of a more than minor adverse environmental effect.

It said most farming activities should not require a permit, and activities with more than minor effects should be covered by a national farming standard and Farm Plans, not consenting rules or permits.

"MCERT should publish the list and timetable of proposed national standards, and co-develop the national farming standard with Federated Farmers," it read.

President Colin Hirst said in a later press release that the standards were not simply a licence for farmers to do whatever they wanted, but will set clear benchmarks for them to protect the environment.

Meanwhile, Horticulture New Zealand said in its submission that where significant conflicts between national directives were anticipated, the NPD should direct how they could work together.

It said this could be done by identifying which outcomes held priority, or how multiple outcomes could be achieved together through appropriate location, design, mitigation or other methods.

"Some situations will inevitably arise where directives pull in different directions," it read.

"In those circumstances, greater clarity is needed on how decision-makers are expected to manage the interaction between those directives, and on the role of national standards in balancing and implementing them.

"Where the appropriate response depends on local context, the NPD should clearly identify matters that decision-makers must consider in resolving trade-offs."

It said while the Planning Act may be able to prevent legal complaints around reverse sensitivity, this was likely to remain a significant constraint on horticultural operations.

"Complaints associated with reverse sensitivity will continue and pose an ongoing risk to the social licence of fruit and vegetable growers, and HortNZ is seeking wording within the NPD to strengthen these protections now and into the future."

The directions and standards are expected to be finalised next year, before the new system would be running nationwide in 2030.