The Resource Management Act 1991 (RMA) is often cited as a reason for New Zealand’s housing affordability issues. It’s described by many as slow, complex and expensive.

Many will therefore welcome the introduction of the the Natural and Built Environment Bill (NBE) and the Spatial Planning Bill (SPB). The bills will repeal the RMA and aim to address growing concerns in relation to the current system.

A key objective of the reform package is to improve system efficiency and effectiveness while reducing complexity. The new system will see significantly more attention paid to the planning process which in turn will lead to the new NBE plans. These plans will contain a single planning “rule book” for each region in NZ. The plans will be developed and delivered in each region by new regional planning committees.

The system aims to front-load the process, with matters such as notification dealt with through planning documents. In theory this seems like a sensible proposition, but it remains to be seen if it delivers in practice and the stated objectives of the reform are achieved.

Two other changes of direct relevance to investors and property owners concern the regime for contaminated land and existing use rights.

CONTAMINATED LAND

There are numerous changes under the NBE in relation to the management of contaminated land, some of which will result in significant new obligations on landowners.

Of particular note:
• If land is contaminated, the landowner will be required to notify the regional council. They will need to manage, investigate and monitor the contamination, and provide reports of investigations and monitoring to the regional council.
• If hazardous activities are taking place on the land, the landowner must notify the regional council of those activities and of any related environmental investigations.
• If a person has allowed a contaminant to be discharged into the environment they may be liable for the costs of managing and remediating the contaminated land.

These new obligations reflect the emphasis the NBE places on the “polluter pays” principle in relation to contaminated land – those who produce pollution should bear the costs of managing it.

These changes are something that property owners and investors should be aware of. If contaminated land is not carefully considered when carrying out due diligence on a property then the purchaser may acquire significant obligations under the NBE.

‘New obligations reflect emphasis on the polluter pays principle in relation to contaminated land’

EXISTING USE RIGHTS

There are also changes under the NBE with regards to existing use rights. Currently, under the RMA, certain activities may continue without resource consent if the land use existed previously and remains of the same character, intensity and scale. These existing use rights couldn’t previously be extinguished by a territorial authority (although there are some examples of regional councils using their powers to extinguish these existing use rights). The NBE provides new avenues for
territorial authorities to exercise that same power.

Under the new regime, if an NBE plan provides, then existing use rights may be extinguished for the purposes of reducing, mitigating or adapting to the risks associated with natural hazards, climate change or contaminated land.

This is likely to be significant for land vulnerable to the effects of climate change (such as coastal or flood-prone areas), land at increased risk from natural hazards (such as hillside properties at risk from landslides), or contaminated land.

If the NBE is enacted in its current form then there will be increased emphasis on the need for robust environmental due diligence when purchasing new properties. For those embarking on a development the new system will herald significant change, with spatial planning and the new NBE plans rewarding those who front-foot
planning processes.