In January CCNZ prepared an issues paper to canvas members’ views on key aspects of the Natural Environment Bill and the Planning Bill before preparing a draft submission in February for the Environment Committee, along with a request to appear before Select Committee on its submission.
Submissions on the Natural Environment Bill and Planning Bill, which is currently under consultation by Parliament’s Environment Committee, had to be made by last month. The Committee will be due to report back to Parliament by 26 June with the Government’s intention of passing the Bills this year.
Basically, the association support proposals that streamline the consenting system, leading to more functional and effective infrastructure construction for civil contractors and their clients and suggests improvements to foster that outcome.
“The major frustration for contractors is the time it takes to get resource consents, and the impact this has on the continuity of work as project start-dates shift to accommodate the uncertainty generated through consenting (or there is a lack of continuity in the pipeline),” wrote the CCNZ in its submission draft.
“For this reason, the overwhelming feedback from contractors supports increasing the amount of permitted activities that don’t require consent.
“In short, resource management is relevant to civil contractors because the construction and maintenance of infrastructure is a use of land and the environment. As opposed to residential construction, civil contractors are usually working for public benefit, to install water, transport and other infrastructure networks. They work to standards of quality, environmental and health and safety performance, and their systems are audited to ensure they deliver at a suitable level of quality and environmental protection.”
The association acknowledges the widely held view that the Resource Management Act 1991 (RMA) system is broken, and has become litigious, expensive, and time-consuming, for both resource consenting and planning.
“It has created significant cost, both for those seeking consent for development and those seeking environmental protection, because it lacks effective mechanisms for conflict resolution, often leading to a costly stalemate where development is sought.”
The CCNZ’s detailed submission on the Planning Bill and Natural Environment Bill, which is over 7000 words long, is in keeping with its overall approach to RMA reform and its guiding principles are as stated in its previous submissions on RMA reform.
In the draft submission’s executive summary, the association supports the overall approach of the Bills, and efforts to reduce consenting for standard civil works, and believes the goals of both Bills need to align well to resolve potential conflict, as it understands there is deliberate separation between the Bills – as each has its own purpose.
In the Bill’s national policy statements and national environmental standards there is risk of continuing an ongoing cycle of legislate-interpret-create case law, without the changes reaching the level of practical application. “This is a particular risk for policy, which could be clarified through case law, only to be changed as the government’s priorities change.” It will be important to limit the volume of interpretation and national direction by considering what else can be included in the Bills rather than national direction,” it suggests.
“Legislation and national standards provide certainty but overly flexible national policy can create interpretative churn, which is inefficient, confusing, and avoidable.”
The association also supports the proposed ‘avoid, minimize, remedy’ approach. “At present, a considerable amount of time, effort, and cost is spent avoiding issues that are extremely unlikely to occur or exist.”
Potential issues may arise if a natural resource permit is obtained under the NEB, but a land use or planning consent is not granted under the PB, or vice versa (e.g. for a subdivision). “This is already a risk under the RMA, because land use consents are granted by district councils while water take, discharge etc consents are granted by regional councils. The lack of integration could get worse under the new system though (because of the two Acts).” This is because they are separate sets of decisions under separate Acts, rather than holistic decisions.
The Bills should include ‘definitions’ of infrastructure, such as that in the National Policy Statement for Infrastructure 2025. “In particular, infrastructure supporting activities (as defined in the National Policy Statement for Infrastructure) should also be supported by the Bills, to ensure elements of the construction material supply chain, such as aggregates and cleanfills, are supported by the new system.” Including such in the infrastructure definition will ensure that the Planning Bill goals require the government and councils to plan for and enable pathways for civil contractors to manage aggregate supply and surplus fill.
For clarity, the CCNZ has sought amendments to the definition of “less than minor” in relation to adverse effects. In particular, it is concerned the definition ‘lowers the bar’ compared to use of this term under the RMA, so that a more limited range of effects will be considered “less than minor”.
The CCNZ “strongly supports” the proposed Schedule 5 of the Planning Bill, which handles designations. “Designating authorities need to be given more trust and autonomy. They already have plans and systems in place, are working for public benefit, and have passed a test to become a designating authority. If they fail in that duty, they lose that status.”
While national standards will help classify a wide range of infrastructure activities as permitted, it is “essential that contractors are involved” in setting any standards or environmental limits to ensure they are practical and relevant. Currently, the expertise of civil contractors is not used to support the development of standards under the RMA.
“CCNZ seeks amendments to the Bills so that civil engineering knowledge of good working practice can be used to develop and refine nationally consistent standards and limits. This will ensure standards and limits to be practical and able to be implemented efficiently.” The Bills need to better provide for practice as well as theory.
The association supports in principle ‘environmental limits’, provided they are set in a scientific manner, and at a level that still accommodates infrastructure activities, and the use of ‘adaptive management’ is essential to enable, for example, temporary but manageable breaches for infrastructure construction that have no material impact.
“It appears territorial authorities will use ‘action plans’ to manage or prevent breaches of one or more environmental limits. However, it is not clear whether this refers to common resources (e.g. water quality in a catchment), or specific activities (i.e. sediment content in construction site runoff at point of discharge). Clarification would be useful.”
The CCNZ supports transitional arrangements in the PB, pending the development of national direction, and planning instruments, and provisions that exclude certain amenity effects from consideration under the new system.
“CCNZ proposes that process agreements for regional spatial planning include sector groups for engagement to optimise planning outcomes for infrastructure in regions and ensure regulations are practical and fit for purpose.”
The insurance issue
The association notes in its draft submission that the penalties provisions in the Bills, and the removal of the ability to insure against fines, are rolled over from the 2025 RMA amendments.
“While the penalties are largely workable, the removal of insurance cover represents a change in contract risk profile that may significantly escalate costs. We propose a more reasonable approach than the blanket removal of insurance cover, which is the amendment of this rule (cl. 287) to apply only to serious or repeat offenders.
Now that it is prohibited to take insurance for payment of environmental fines and penalties, companies and individuals must bear the full cost of any penalties incurred, removing a previous practice where fines might be covered by insurance.
“While the Natural Environment Bill and related RMA amendments now prohibit insurance for the payment of environmental fines and penalties, there is scope for a more balanced, industry-driven approach that still deters breaches, but doesn’t impose penalties so severe that contractors can no longer get finance or stay in business.
“This could be regulated through the insurance industry, or insurers could be required (or guided through industry standards.”
Contractors and civil emergencies