The reforms proposed by the Natural and Built Environment Bill (NBE Bill) and the Spatial Planning Bill (together, Bills) have been touted as introducing a change in approach away from the effects management regime which has been the focus of the RMA, and towards the implementation of environmental bottom lines and achieving positive outcomes.
However, managing adverse effects is still a key aspect of the new system and the NBE Bill includes a general duty in every person to avoid, minimise, remedy, offset or take steps to provide redress for adverse effects on the environment as a result of an activity. The purpose of the NBE Bill also refers to managing adverse effects in addition to promoting the outcomes and complying with environmental limits and targets discussed in our previous article.
The NBE Bill does however introduce several new changes to the effects management approach which are discussed below.
Under the RMA, the purpose of the act refers to avoiding, remedying or mitigating adverse effects on the environment. In contrast, the NBE Bill sets out an effects management framework that effects must be:
- Avoided wherever practicable;
- Where unable to avoided, minimised wherever practicable;
- Where unable to be avoided or minimised, remedied wherever practicable;
- Remaining adverse effects, offset wherever practicable; and
- If remaining adverse effects, the activity cannot proceed unless redress is provided by enhancing the relevant aspect of the environment.
Application of effects management hierarchy
The effects management hierarchy is stated as applying to adverse effects on “significant biodiversity areas” and “specified cultural heritage” and does not apply to adverse effects on other resources unless the NPF directs that it applies. This appears to narrow the relevancy of the effects management hierarchy, although addressing effects still forms a key part of the purpose of the NBE Bill.
The Bill defines a significant biodiversity area as a place that meets the criteria set out in the NPF, and a specified cultural heritage must meet the requirements for inclusion in s 7. Each council plan must identify every specified cultural heritage and significant biodiversity area in the region as they are included in the NBE Bill’s definition of places of national importance. In addition, the NPF can require a more stringent approach to any particular effect. For example, it could mandate complete avoidance of a specific effect. The NPF will also be able to provide exemptions from the requirement to comply with the framework.
While there appears to be a limited application of this hierarchy, it is notable that consent authorities making decisions on consent applications must have regard to actual and potential effects and any measures to “avoid, remedy, mitigate, offset or take steps to provide redress” for adverse effects. This appears to create a distinction between the formal effects management hierarchy identified above, which refers to the minimisation of effects, compared to the matters to be considered at the resource consenting stage.
Mitigate v minimise
The concept of “mitigation” which has formed a central part in the RMA effects management system is not referenced in the effects management hierarchy of the NBE Bill. The direction to minimise rather than mitigate, and to place this above remediation in the effects management hierarchy represents a deliberate change in approach.
The term “minimise” is not defined the NBE Bill but may be intended to require the further reduction of effects when compared to the term “mitigate”.
There are also some inconsistencies in terminology within the NBE Bill. This includes Schedule 4 principles of diversity redress which mentions the “mitigation hierarchy” listing avoid, remedy, mitigate, offset, and redress, the entire resource consents section of the Bill which only uses the term “mitigate” and Schedule 10 where the required information for an activity’s effects mentions “mitigation measures” only.
Offsetting
Under the RMA there is no specific mention of “offsetting”, “compensation” or “redress” within the purpose of the Act. However, through case law and the 2017 RMA amendments, these concepts have become commonplace considerations in assessing an activity’s adverse effects. Section 104 particularly requires that any measures proposed to offset or compensate for adverse effects are a relevant consideration in deciding whether to grant a resource consent application. Case law has identified that offsets must be “of the same kind” as the proposed damage or undertaken on a “like-for-like” basis[1]
Redress
The RMA amendments in 2017 referred to the concept of redress as “compensation”. The NBE Bill does not define redress, and there will likely be many questions about what this approach should entail. Hon. David Parker, when explaining the new framework which specified compensation, said, “for the avoidance of doubt, compensation does not mean paid for, but rather redressed.”[2] Schedule 4 and Schedule 5 provide the principles for biodiversity and cultural heritage redress respectfully.
Like mitigation, compensation has not been completely erased and is still mentioned in the NBE Bill concerning adverse effects management. For example, in Schedule 4 and Schedule 5 redress and compensation are both used, with Schedule 5 even referring to ‘cultural redress compensation’. It is currently unclear if they are used as synonyms or separate concepts and how they should be interpreted.
Overall, the NBE Bill has made some key changes to the effects management regime, including through changes to terminology. Some further reviews need to be undertaken to ensure consistency in language through the select committee process.
[1] J F Investments Ltd v Queenstown Lakes District Council EnvC Christchurch C48-2006, 27 April 2006, and Oceana Gold (New Zealand Limited) v Otago Regional Council [2019] NZEnvC 41, [2020] NZHC 436.
[2] Hon David Parker “How the future RM Reform system will better protect the environment” 17 August 2022 Beehive.govt.nz.
