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Leyland, Kate --- "Tinkering at the edges: Post-politics and the promulgation of national planning policy in New Zealand" [2022] NZJlEnvLaw 4; (2022) 22 NZJEL 53

New Zealand Journal of Environmental Law

Tinkering at the edges: Post-politics and the promulgation of national planning policy in New Zealand [2022] NZJlEnvLaw 4 (31 December 2022); (2022) 22 NZJEL 53

Last Updated: 14 May 2024

53

Tinkering at the Edges:

Post-Politics and the Promulgation of National Planning Policy in New Zealand

Kate Leyland*

A post-political lens is increasingly applied to planning processes to shed light on how planning increasingly forecloses “the political” — whereby dissensus, conflict or fundamental differences are not mean­ ingfully reflected in planning outcomes via participatory practices — often to further neoliberal trajectories to accommodate economic growth. This article examines the extent to which post-political strategies are utilised within processes of formulating national direction through statutory planning frameworks in New Zealand. The article maintains that expressions of the political can be obscured via the legal frameworks for promulgating national direction. Lessons from legislative analysis of the process for promulgating national policy statements (NPSs), along with case studies of previous NPS processes, will inform recommendations for how to reassert the political in future planning frameworks.

1. INTRODUCTION

Public participation is generally touted as a mainstay of planning frameworks within liberal democracies. New Zealand is no exception: the planning framework created by the Resource Management Act in 1991 invites public participation at various levels of the planning process. At the micro-level, submissions are solicited during the making of local plans, or on notified resource consent applications. At the other end of the spectrum, the public

*The author holds a Master of Urban Planning (Professional) from the University of Auckland, and this article is based on her Master’s dissertation. Email: kate.leyland@ aucklandcouncil.govt.nz.

is allowed to make submissions on the content of national policy statements (NPSs), planning instruments issued by central government and eventually given effect to by all subordinate plans and resource consents.

It is the formulation process of these high-level planning policy instruments in New Zealand under 1991’s Resource Management Act (RMA) which is the topic of this analysis. New Zealand sits on the precipice of major legislative change in the face of looming climate challenges, as the government moves forward with its plan to repeal and replace the RMA. NPSs, as a policy tool, can be considered highly politicised, in that they are generally partisan creatures of the political party which promulgates them.¹ However, this article will explore the notion that processes which are influenced by “politics” do not necessarily provide room for “the political”; in essence, planning is a “post-political” process.

This article will examine the extent to which post-politics are present within the processes of promulgating national direction within the RMA. First, RMA processes for formulating national direction will be examined. Next, to illuminate whether post-politics influenced the promulgation of NPSs in practice, the processes of promulgating the National Policy Statement on Urban Development Capacity and the subsequent National Policy Statement on Urban Development will be briefly explored. Finally, a post-political lens will be applied to what is known about future processes for formulating national direction under the RMA’s eventual replacement, the Natural and Built Environment Act (NBA), through an analysis of the Natural and Built Environment Bill.

1.1 Post-Politics and Planning in Brief

Drawing upon post-foundational thought, “post-politics” refers to an analytical framework which describes the processes by which the political — fundamental issues of difference, dissensus or conflict — is foreclosed by politics — the day- to-day processes of governance or management;² post-politics “seeks to displace politics through the project of a world without conflict where a consensus order is already established or where it can be established through the deployment of various strategies of politics such as deliberative democracy”.³

1. Nicky McIndoe “National Policy Statements — at the whim of politics?” [2010] Resource Management Bulletin 158.
2. Jonathan Metzger, Philip Allmendinger and Stijn Oosterlynck “The contested terrain of European territorial governance” in Jonathan Metzger, Philip Allmendinger and Stijn Oosterlynck (eds) Planning Against the Political (Routledge, New York, 2015) 1 at 8–13.
3. Philip Allmendinger and Graham Haughton “Post-political regimes in English planning: from Third Way to Big Society” in Jonathan Metzger, Philip

In a planning context, various analyses have shown how post-political strategies can be employed to diminish the political even when participatory planning processes are involved.⁴ The application of such strategies can be attributed to the neoliberal context within which planning operates, where collaborative planning approaches — which involve consultation and participation — have been co-opted to facilitate economic growth, presented as beneficial to all, rather than more broadly promote the “public interest”.⁵ In this context, participation and consultation may be present, but occur within prescribed parameters with little hope of influencing broader policy directions or outcomes.⁶ Indeed, even the broader discourses of post-political planning are framed in ways which subtly foreclose dissenting discourses or consideration of alternatives, employing positive but vague terms such as “smart growth”, “sustainable development” or the “compact city”:⁷ it would indeed be hard to argue for “dumb growth” or “unsustainable development”.⁸

Post-political planning strategies can be grouped into three broad categories, as per Allmendinger and Haughton: deferring, displacing or transferring the political.⁹ Deferring the political means conflict is not meaningfully addressed or accommodated during the planning process, and is instead “deferred” to a later point. Displacing the political shifts the political away from the public during planning processes, usually into more technological or managerial arenas, where “experts” are tasked to identify problems and create solutions, leaving no obvious forum for dissensus. This can manifest as policy formulation which relies on technical reports or assessments, often outsourced to expert

Allmendinger and Stijn Oosterlynck (eds) Planning Against the Political

(Routledge, New York, 2015) 29 at 30.

4. Melanie Kwok, Laurel Johnson and Dorina Pojani “Discretion and the erosion of community trust in planning: reflections on the post-political” [2018] 56(4) Geographical Research 382 at 387–391; Crystal Legacy, Nicole Cook, Dallas Rogers and Kristian Ruming “Planning the post-political city: exploring public participation in the contemporary Australian city” [2018] 56(2) Geographical Research 176.
5. Metzger and others, above n 2, at 6.
6. Iain Deas “Towards Post-political Consensus in Urban Policy? Localism and the Emerging Agenda for Regeneration Under the Cameron Government” [2013] 28(1) Planning Practice & Research 65 at 78.
7. Moa Tunström and Karin Bradley “Opposing the postpolitical Swedish urban discourse” in Jonathan Metzger, Philip Allmendinger and Stijn Oosterlynck (eds) Planning Against the Political (Routledge, New York, 2015) 69 at 77–78; Ronan Paddison “Some Reflections on the Limitations to Public Participation in the Post- Political City” [2009] 8(2) L’Espace Politique at para 23.
8. Philip Allmendinger and Graham Haughton “Post political spatial planning in England: A crisis of consensus?” [2012] 37(1) Transactions of the Institute of British Geographers 89 at 94.
9. Allmendinger and Haughton, above n 3, at 44–48.

consultancies. Policy recommendations are often presented as “neutral” or “win-win” solutions for reconciling growth objectives with social and environmental objectives. Transferring (or dispersing) the political occurs when planning decisions or policy are created on behalf of undefined or vague groups (“the public interest” or “future generations”), precluding legitimate expression of the political by most affected communities, leading to planning objectives or policy that may not align with the reality on the ground.

2. A POST-POLITICAL LEGISLATIVE ANALYSIS OF NPS PROCESSES WITHIN THE RMA

2.1 The Role of National Direction in RMA Framework

Within the inter-government co-operative devolved mandate created by the RMA, local authorities were dependent on central government to set the planning policy agenda through the RMA.¹⁰ Central government would provide high-level guidance, to be given effect to by regional and territorial councils in their local plans and consent decisions, manifested through two types of national planning instruments: NPSs and national environmental standards (NESs). Policy directions would be set through NPSs, which is considered subordinate legislation under the RMA, and must be given effect to by every subordinate level of planning instruments and consent decisions. National environmental standards¹¹ could implement technical standards or requirements, essentially minimum requirements — rules in plans cannot be more stringent or lenient than an NES.

In keeping with the co-operative mandate created by the RMA, national instruments were meant to provide high-level guidance, but allow local authorities to implement the provisions of national guidance with some flexibility into their local plans.¹² Indeed, according to recent guidelines from the Ministry for the Environment, this is still the ethos for NPSs: “Because an NPS does not state rules, there is room for local authorities to apply it in a way that best reflects its relevance to their region. This means there may be some variation between local authorities.”¹³

10. Caroline L Miller Implementing Sustainability: The New Zealand Experience

(Routledge, Oxon/New York, 2011) at 27–29.

11. Resource Management Act 1991 [RMA], s 43.
    12. Jennifer E Dixon, Neil J Ericksen, Janet L Crawford and Philip Berke “Planning under a Co-Operative Mandate: New Plans for New Zealand [1997] 40(5) Journal of Environmental Planning and Management 603 at 608.
    13. Ministry for the Environment “Understanding National Direction 1.3” (Ministry for the Environment, Wellington, 2021) at 8.

Table 1: A summary of existing and proposed national policy statements under the RMA.

2.2 Original Process for Preparing NPSs

The original process for preparation of an NPS followed these steps: If the Minister found it desirable to issue an NPS, the Minister would appoint a board of inquiry (BOI),¹⁴ and provide public notification of the proposed NPS which includes a description of the NPS and sets the closing date for submissions at no earlier than 20 days after public notification.¹⁵ After submissions are made to the BOI, a hearing of inquiry must be held, which must be publicly notified at least 10 days in advance,¹⁶ during which anybody who made a submission can be heard. The BOI must consider matters such as pt 2 of the RMA and submissions received.¹⁷ The board must issue a report and recommendations to the Minister, and the Minister must consider the report and any recommendations from

14. RMA, s 47.
15. Section 48.
16. Section 50.
17. Section 51.

the board, and may (but need not) make any changes.¹⁸ The resultant NPS must be publicly notified, and all persons who made submissions should be provided with a summary of recommendations and the Minister’s decision on the recommendations.¹⁹ The NPS would then be recognised by local authorities in their documents (such as policy statements or proposed plans).²⁰ Local authorities would normally use a sch 1 process to give effect to NPS provisions in their local plans.

2.3 The Resource Management Amendment Act 2005

Enacted by a Labour-led coalition, these reforms created the first major change to the NPS process since the enactment of the RMA. In the interest of streamlining NPS processes following the protracted formulation of the New Zealand Coastal Policy Statement, these reforms created an alternative NPS process which does not require a BOI.²¹ Specific amendments include the following.

• 2.3.1 New s 46A — Minister chooses process²²

Under this process, the Minister must establish and use a process which would give the public adequate time to make a submission on the statement,²³ and require a report and recommendations to be made to the Minister on the submissions and the subject matter of the statement. When choosing between the two processes, the Minister may consider factors such as the advantages and disadvantages of preparing an NPS quickly,²⁴ and the extent of “public debate and public consultation that took place on the policy” before the preparation of the NPS.²⁵ The NPS would be a “disallowable instrument” and must be approved by Parliament to be considered “subordinate legislation”.²⁶

18. Section 52.
19. Section 52(3)(c).
20. Section 55.
21. Rachel Devine “The Resource Management Act 2005: Room to Improve? [2005] 6 Resource Management Bulletin 62.

22 RMA, s 46A(1)(b).

23. Section 46A(1)(a)(i).
24. Section 46A(2)(a).
25. Section 46A(2)(c).
26. Section 46A(1)(b).
    • 2.3.2 Amendment to s 55(2A) — Local authority recognition of national policy statements

This amendment allows for an NPS to contain a much higher level of specificity, and inject these directives without the normal sch 1 plan change process locally. An NPS can now “direct that specific provisions are to be included in a document [a regional or district plan], without notification or hearing, under clause 16 of Schedule 1”.²⁷ However, only an NPS which goes through the original BOI process can make such a direction. A plan using the new streamlined process can only require a local authority to initiate a plan change under sch 1.²⁸

2.4 Resource Management (Simplifying and Streamlining) Amendment Act 2009

This amendment Act was implemented by a National-led government in 2009, and generally provided an enhanced role for the Minister for the Environment. Key changes included the following.

• 2.4.1 Repeal of s 46A(3) — Minister chooses process

This provision previously prevented the Minister from using the streamlined alternative process if the proposed NPS included provisions such as that described in s 55(2A)(b), which were described as “specific provisions” within a local plan. The implication of repealing this provision is that NPSs which contain directive content no longer need to be vetted through a BOI process.

• 2.4.2 Insertion of s 47A: BOI to suspend consideration or consider additional material

The insertion of s 47A gave the Minister the power, before a BOI report and recommendations are given to the Minister, to direct the board to suspend its inquiry until either a specified time or event. The Minister can also provide the board with additional material to consider (which the board must then consider). The Minister must give public notice if the board is asked to suspend its inquiry, including the reasons for the direction.

27. Section 55(2A).
28. Devine, above n 21.

• 2.4.3 Amendment to s 53(3) — conduct of hearing

This section overrode various provisions elsewhere in the Act which stipulate that only persons who have made a submission can be heard by a BOI hearing, allowing the Minister to be heard at the hearing regardless of whether or not the Minister has made a submission.

• 2.4.4 Insertion of s 51(a) — withdrawal of proposed national policy statement

This new clause gave the Minister for the Environment the power to withdraw all or part of a proposed NPS at any time, before the statement is approved under s 52(2). Public notice of the withdrawal, including reasons for the withdrawal, must be provided. If the board is not directed to cease inquiries into all matters, those matters must be inquired into and reported upon.

• 2.4.5 Amendment to s 52 — consideration of recommendations and approval or withdrawal of statement

Previously, this section stated that “the Minister must consider a report and any recommendations made by a board of inquiry and then may (but need not) make any changes to the proposed national policy statement”.²⁹ The phrase “(but need not)” was struck from the clause by the 2009 amendments, a subtle but significant shift. The Minister now has the power to “withdraw all or part” of the proposed NPS after receiving the BOI’s report and recommendations, but before the NPS is approved by the Governor-General.³⁰ This must be publicly notified and include reasons for the withdrawal. Thus, the Minister is given yet another chance to stop an NPS process, after full consultation has been carried out and the BOI has given recommendations based on that consultation.

• 2.4.6 Amendments to s 55 — local authority recognition of national policy statements

Connected to the repeal of s 46A(3) described above, this amendment allows an NPS to be more directive: a local authority, if an NPS directs it to, must include “specific objectives and policies set out in the statement”.³¹ Additionally, these objectives and policies must be inserted into a plan without using the sch 1 process, which must be publicly notified within five days.³² A local authority

29 RMA, s 52(1).

30. Section 51(1)(b).
31. Section 55(2).
32. Section 55(2A).

must make all other amendments to a document that are required to give effect to any provision in a national policy statement that affects the document using the process in sch 1.³³ This section was also amended to include a provision which allows an NPS to set a specified time by which all amendments must be made.³⁴

2.5 Resource Legislation Amendment Act 2017 (RLAA)

Following its re-election in 2013, with an even stronger majority in Parliament, National enacted the RLAA in 2017, which also changed provisions regarding both the process and content of NPSs. One major change was allowing for a “single process” for formulating national direction (NES and NPS).³⁵

• 2.5.1 Addition of s 45A — contents of national policy statements

Prior to the RLAA in 2017, there were no specific provisions regarding the content of national policy statements. The purpose of an NPS was stated in s 45(1): “to state objectives and policies for matters of national significance that are relevant to achieving the purpose of this Act”. Section 45(2) listed matters the Minister may have regard to in determining whether or not it is “desirable” to prepare an NPS. The addition of s 45A expands the scope of what type of provisions are allowed within an NPS. For instance, an NPS may state “the methods or requirements in policy statements or plans, and any specifications for how local authorities must apply those methods or requirements, including the use of models and formulae”.³⁶ It can also state constraints or limits on the content of policy statements or plans,³⁷ or “the matters that local authorities are required to achieve or provide for in policy statements and plans”.³⁸

• 2.5.2 Repeal of s 46

Section 46 formerly stipulated that if a Minister finds it desirable to issue an NPS, he or she must first “seek and consider comments from the relevant iwi authorities and the persons and organisations that the Minister considers appropriate” before preparing the proposed NPS.

33. Section 55(2C).
34. Section 55(2D).
35. Section 46A.
36. Section 45A(2)(b).
37. Section 45A(2)(d).
38. Section 45A(2)(c).

2.6 Discussion

The potential to diminish the political has arguably been present since the conception of the RMA, under the original single BOI process. For instance, the board itself it can be considered a board of “experts” who moderate the process at arm’s length from the public. While they are required to have regard to submissions, and hold a hearing, they are still the final body which would make recommendations to the Minister. This could have the effect of displacing the political. However, there are strong indications that the general trajectory of the NPS process increasingly disallows the political (see Table 2). Successive amendments to NPS processes allowed for increasing amounts of ministerial discretion, the rise of ad hoc “streamlined” processes, provisions which allow more prescription within NPS content, and provisions which allow NPSs to be inserted into local plans without the more robust sch 1 process. In sum, NPSs are allowed to mandate more specific content to be inserted at the local level, but can use less rigorous processes to do so.

There are three main areas where the NPS promulgation process might diminish properly political moments as follows.

• 2.6.1 Allowance of ad hoc streamlined process

The 2005 amendments provided the Minister a choice between the original BOI process, or a streamlined alternative process, which has significantly fewer requirements for consultation and gives the Minister a high amount of discretion regarding specific steps taken. In terms of how to justify the choice of process, there is a fairly short list of provisions which the Minister “may consider”: “the advantages and disadvantages of preparing the proposed national direction quickly”; the extent to which the proposed national direction differs from existing national direction or regional policy statements; or “the extent and timing of public debate and consultation that took place before the proposed national direction was prepared”.³⁹ Within this short list of items, there is ambiguity: what exactly is referred to by “public debate and consultation” which took place before the NPS was prepared? It is implied that a Minister may consider public debate or consultation has occurred outside of the NPS process, without specifying the substantive or procedural matters of this consultation. Additionally, by asking the Minister to consider the advantages and disadvantages of quick NPS preparation, it is implicit that an alternative process will be faster than a BOI process. The Minister is not required to be transparent about any of these decisions.

39. Section 46A(6).

If the alternative process is chosen, guidelines for the process include: the public and iwi must be given notice of the proposed direction, and why the Minister feels it is consistent with the RMA purpose; there must be adequate time for those notified to make a submission; and a report and recommendations on the subject matter must be prepared for the Minister.⁴⁰ On the whole, these provisions are vague, and create no guarantee of any robust consultation process — no timeframes are specified, nor parameters as to the content of consultations.

The overall effect of this alternative process is that there is no guarantee of a clear location in which to express the political. An alternative process, which is implemented faster and possibly less robustly in terms of consultation than a BOI process, can be justified on fairly vague grounds. For instance, urgency of a pressing issue can be invoked to follow an alternative process, which could possibly disperse the political. Without clear public consultation processes, it is entirely possible that the Minister could rely on “technical experts” or collaborative efforts with certain groups to get faster targeted feedback. This creates a potential to displace the political.

• 2.6.2 Increase in specific ministerial powers

The Minister has always had a prominent role in the NPS process, especially with the addition of the ad hoc alternative process in 2005. The 2009 amendments in particular further increased ministerial powers: the right to be heard at a BOI hearing even without having made a submission; the right to submit material to the board which must be considered; the right to order a BOI to suspend its inquiry; the right to withdraw all or part of an NPS, although reasons must be given.

These provisions allow a chance for the political to be colonised by politics, given that the Minister is a political appointee. If consultation on an NPS returns results that may not be politically expedient for a party, the Minister has the right to halt proceedings. This may have the effect of deferring the political, in that opinions were expressed on a policy direction, but never acted on — thus, deferring the issue until a later date, potentially outside the planning system as protests or challenges in court.

• 2.6.3 An NPS can be prescriptive, but process and implementation requirements are looser

Explicit provisions have also been made to allow an NPS to be more directive (ie specifying methods or objectives which must be included in lower-

40. Section 46A(4).

level plans). Writing about the 2005 amendments, Devine opined that the amendments allowed a surprisingly high level of specificity for an NPS, given that it is a general policy document.⁴¹ This belies an assumption at the time that NPSs would be produced according to the general standards of the original co-operative mandate. Compounding the possible implications of prescriptive NPSs are provisions which allow NPS provisions to be directly inserted into local plans without a full plan change process, for notification within five days if an NPS requires it.

Table 2: A summary of how major changes to NPS preparation processes may defer, displace, or disperse the political.

If an NPS contains prescriptive provisions, but was not formulated through a rigorous and transparent process, it is possible that this would defer the political to the lower level, when NPS provisions are implemented in the plan change process. However, if provisions were fairly prescriptive, but were allowed to

41. Devine, above n 21.

be directly inserted into local plans without the full sch 1 process, in this case, the political may be nearly foreclosed.

2.7 Purposeful Post-Political Strategies?

Previous research has provided evidence that frequently post-political strategies are purposefully applied:⁴² in the case of amendments to the NPS process, it would appear there was a purposeful drive to hasten the NPS process in the name of efficiency. “Cost-cutting” was also invoked to justify precluding local authorities from initiating a full sch 1 plan change to give effect to directive NPS provisions.⁴³

However, it would be difficult to pin these amendments, which tended to make NPS processes less robust, only on the National Party: there is not a clear-cut partisan bias to preceding changes to NPS processes. While the sweeping 2009 reforms might make it tempting to lay the blame for increasing centralising of ministerial power at the feet of the National Party, the Resource Management Amendment Act 2020 passed under a Labour majority did not undo any of the significant previous amendments which increased ministerial powers or allowed NPSs to be more prescriptive. In fact, the 2005 amendments which established the alternative process were approved under a Labour-led government. While National has been accused of recentralising planning power,⁴⁴ Labour has arguably increased central government’s planning powers even more dramatically than National — 2020’s Urban Development Act granted the new urban development agency Kāinga Ora unprecedented powers, such as the authority to bypass RMA consenting processes and issue its own consents for specified development projects.⁴⁵

3. NATIONAL POLICY STATEMENT PROCESS CASE STUDIES

Applying a post-political lens at the legislative level allowed an understanding of where, in NPS processes, the “political” could be deferred (such as through ministerial powers to suspend an NPS in progress) or displaced (by following

42. Allmendinger and Haughton, above n 8; Allmendinger and Haughton, above n 3. 43 Ministry for the Environment “Resource Management Act 2009 Fact Sheet 1:

Overview” (Ministry for the Environment, Wellington, 2009).

44. C Cheyne “Changing Urban Governance in New Zealand: Public Participation and Democratic Legitimacy in Local Authority Planning and Decision-Making 1989–2014” [2015] 33(4) Urban Policy and Research 416.
45. Urban Development Act 2020, s 109.

an ad hoc alternative streamlined process without specified public consultation requirements).

This part of the article will examine whether the political was diminished during two NPS processes: the now-defunct NPS on Urban Development Capacity; and the NPS on Urban Development. These two NPSs were chosen on the basis of the fact that they were both formulated as a policy response to hot-button issues, which have the potential to affect a large proportion of New Zealanders: sustainable urban development generally, but most salient, the ongoing housing affordability crisis. Both NPSs were formulated using the alternative NPS process, but were developed by different parties (National and Labour, respectively). They were also both formulated quite recently (2016 and 2020, respectively). Thus, comparing these two NPS processes, and to a lesser extent, their content — recently prepared by differing parties on the same contested issue — can illuminate where different post-political strategies may be employed within the same overarching legislative framework.

3.1 The National Policy Statement on Urban Development Capacity (NPS- UDC) (2016)

The NPS-UDC was formulated by a National-led government in direct response to recommendations from the New Zealand Productivity Commission report, Using land for housing (2015). A key finding of this independent Commission was that central government should intervene to ensure local councils deliver a sufficient supply of land to meet development needs and control land price inflation.⁴⁶

The NPS-UDC process was initiated in 2015, and was formulated without a BOI, the first NPS to follow the alternative process.⁴⁷ It came into effect on 1 December 2016. It has since been repealed, and replaced with 2020’s National Policy Statement on Urban Development.

3.2 Consultation Process Overview

The first step of consultation was a s 46(a) “targeted consultation” with iwi authorities and selected stakeholders; 260 letters were sent to all iwi authorities, all local authorities, and selected business and infrastructure stakeholders, eliciting a total of 47 responses.⁴⁸ Next, the Ministry for the Environment

46. New Zealand Productivity Commission Using land for housing (2015) <https:// www.productivity.govt.nz/assets/Documents/6a110935ad/using-land-for-housing- final-report.pdf>.

47 RMA, s 46A(1)(b).

48 Ministry for the Environment and Ministry for Business, Innovation & Employ- ment [MfE & MBIE] National policy statement on urban development capacity

released a public Consultation Document,⁴⁹ and accepted submissions between 3 June and 15 July 2016. “Briefings”, or “stakeholder events”, were held in several cities for groups such as council staff, mana whenua, New Zealand Society of Local Government Managers, and industry groups (New Zealand Property Council, New Zealand Council for Infrastructure Development). From start to finish, the NPS process took about nine months, much shorter than the previous average process of approximately four years.⁵⁰

3.3 Consultation Discourses

• 3.3.1 The issues, NPS rationale, and discourses

The opening paragraph of the brief s 46(a) consultation letter to “selected stakeholders” attributes rising land and house prices to insufficient supply of development capacity by regional and district councils. Local authorities may find it “difficult ... to balance competing priorities to make appropriate decisions that accommodate urban growth” in fast-developing urban areas, which is an “important factor behind the increasing land and house prices” experienced in quickly growing urban areas.⁵¹

The public Consultation Document⁵² presents the overarching issue as urban areas struggling to cope with increasing growth, leading to issues such as housing unaffordability or constraining business growth. Table 3 presents a synopsis of the major discourses within the Consultation Document. Within the document discourses, there are discourses identifying a restrictive planning system as the root of the problem, along with incorrect planning decisions by local authorities. There are also discourses which indicate that if the market is less constricted by local authority decisions, growth will be accommodated. There are also discourses discussing how the planning system has protected the needs of the more vocal (ie current homeowners) at the expense of those who are less vocal (presumably, non-homeowners). It says little, however, about how new growth will specifically help non-homeowners, such as whether affordable home options will be mandated by the NPS. The main rationale appears to

report on section 46(a) consultation submissions (Ministry for the Environment and Ministry for Business, Innovation & Employment, Wellington, 2016).

49. Ministry for the Environment and Ministry for Business, Innovation & Employ- ment Proposed National Policy Statement on Urban Development Capacity: Consultation Document (Ministry for the Environment and Ministry for Business, Innovation & Employment, Wellington, 2016).
50. Tom Simonson, Local Government New Zealand The National Policy Statement on Urban Development (2019) at 6.
51. MfE & MBIE, above n 48, at 15.
52. MfE & MBIE, above n 49, at 20–24.

be removing obstacles to providing development capacity, which will allow residential and business growth sufficient to meet demand.⁵³

• 3.3.2 Degree of policy completeness, consultation parameters, and submissions

The one-page s 46 letter to selected stakeholders did not provide substantive information about the provisions of the proposed NPS, and closes with three open-ended questions to guide inquiries, including how an NPS might address these issues, and what type of guidance such an NPS might contain.

The Consultation Document, produced subsequent to the first round of consultation with selected stakeholders, includes a draft NPS-UDC. Within the draft are seven objectives and their associated policies. The document then goes on to solicit feedback through open-ended questions on the objectives and policies. Some questions are specific (“Is three years an appropriate timeframe to update the assessments [for estimating housing demand]?”; others are more general (“Would these policies result in better decision-making under the Resource Management Act 1991 for urban development?”)⁵⁴

The public submissions Summary Document categorised submissions according to the relevant objectives/policies. The document reveals the breakdown of the 140 submissions: including from local authorities (38), business/industry groups (12) and members of the “development sector” (21). Only 17 individual submissions were received: 71 per cent of respondents supported the proposal overall, while 22 per cent were opposed.⁵⁵

There are two noteworthy sections within the Summary Document. The first is a section noting submitters’ comments on the intent of the NPS-UDC, which were not summarised in full but grouped into three general themes: nearly half of submissions expressed a “general appetite for a national direction to address urban development capacity, others felt the focus to be too narrow”;⁵⁶ others felt that the NPS-UDC alone would not be able to improve housing affordability; others had a “perception that the NPS-UDC requires development at any cost and as such is inconsistent with the purpose of the RMA”.⁵⁷ The second noteworthy section is entitled “Matters outside the NPS-UDC”, which states that approximately half of submitters commented on “non-National Policy

53 At 28–35.

54 At 28.

55 Ministry for Business, Innovation & Employment and Ministry for the Environment [MBIE & MfE] Summary of submissions to the Proposed National Policy Statement on Urban Development Capacity (Ministry for Business, Innovation & Employment and Ministry for the Environment, Wellington, 2016) at 5.

56 At 12.

57 At 12.

Statement (NPS) matters; that is, matters that are either outside the intended scope” of the proposed NPS, and/or “matters that are more appropriately addressed outside of the [RMA]”,⁵⁸ including: integration of planning statutes and spatial planning, addressing the demand side of housing affordability, infrastructure, or reverse sensitivity.

3.4 Post-Political Analysis of the NPS Process

The resulting NPS-UDC was largely produced according to Government’s original vision. The NPS mandated that councils must fulfil monitoring and reporting obligations, submitting a three-yearly Housing and Business Capacity Assessment to central government to ensure development capacity was met.

It is beyond the scope of this article to comment on the merit of the NPS- UDC approach. The NPS-UDC adopts a pro-growth neoliberal approach to planning policy, a hallmark of post-political planning.⁵⁹ It presumes that by reducing barriers to land supply, the market will respond to this increased development capacity, providing increased housing supply and even affordable housing. Yet there is little said about how affordable housing will be delivered. Challenges to the pro-growth paradigm in submissions were labelled as “outside the scope” of the NPS-UDC, and not seriously considered. Within NPS discourses, planning was presented as both a barrier to sufficient development, as well as the solution to the issue.

There were several specific strategies employed which diminished the political as follows.

• 3.4.1 Displacing the political

There are indications that within this NPS process, the political was dis- placed — that is, shifted to a closed group of stakeholders who are purported to have expertise in the matters at hand; or, left to technical or scientific experts or processes. The overarching example of displacing the political arguably occurred before the official NPS process started: a reliance on a report produced by an independent expert commission, the Productivity Commission. The single-minded approach of the NPS — to provide development capacity which would enable the market to deliver growth — was predicated on the recommendations of this report. The NPS also incorporated report recommendations such as setting minimum targets for development capacity.

58 At 29.

59 Philip Allmendinger Planning Theory (3rd ed, Palgrave Macmillan, London, 2017) at 191–215.

Again, the discourses of the Consultation Document indicate this market- based approach of the NPS was predetermined by the time that document was published, and not likely to be influenced by public submissions.

The political was also displaced via the pre-consultation letter sent to selected stakeholders. Comparing the consultation questions contained within this letter, and those posed to the public, provides for interesting results. The question to stakeholders allowed them to give input on the broad direction of the policy: “How could a National Policy Statement and supporting guidance help address these issues? What could a National Policy Statement and supporting guidance contain?” The parameters of public consultation, however, indicate the growth-based approach of the NPS-UDC was a foregone conclusion by the time the public consultation started. While a wide range of consultation questions were posited within the Consultation Document, the key point is that no matter how specific or how general they were, none of them created room for input on the overall broad intentions of the NPS-UDC, but rather allowed for tinkering at the edges of the policy specifics — a proper expression of “the political” was largely denied to the public. This is not to say that a member of the public could not address such matters within an individual submission. It does indicate, however, that the door to questioning the essence of the policy was already closed by the time consultation went public. The fact that the timeframe for accepting submissions was relatively short (approximately six weeks), coupled with the absolutely low number of individual public submissions (17), imparts the impression that public feedback was not ever going to be considered a vital piece of formulating this NPS. Given that nearly half of respondents had some comment over the intent of the NPS, and that comments on widening the scope or parameters of the NPS were categorised as “outside of the scope” of the NPS, it suggests that the “political” was displaced during the NPS-UDC process.

While the s 46(a) consultation was mandated by RMA provisions at the time, there are additional elements of a collaborative approach that were added voluntarily — for instance, the additional “stakeholder events” with industry groups during the consultation period. This provides disproportionate room for selected stakeholders to provide input, at the expense of the public, who were not entitled to public meetings. The contents of those stakeholder meetings were also not included in the summary of submissions.⁶⁰

60 MBIE & MfE, above n 55, at 9.

• 3.4.2 Deferring the political

Within the discourses of the NPS-UDC Consultation Document (Table 3), there is frequent mention of the benefits of increasing development capacity for growth: growth will allow for building vibrant communities, can help create better urban environments, and if done well, can create choices and opportunity that will attract new people and skills. The Consultation Document portrays a planning system which favours the “most vocal” standing in the way of this better future. It contends that plans which do not provide enough development capacity mostly reflect these vocal voices (presumably current homeowners), locking out future generations from home ownership.⁶¹ The Consultation Document thus acknowledges this existence of the political — that homeowners may not support increased growth (an assumption which is beyond the scope of this article). Yet this aspect of the political was not properly engaged with, considering only 17 individual responses were solicited during a truncated ad hoc alternative NPS process. This could mean questions of the political could be passed further down the line to local authorities, who are responsible for implementing the NPS within local plans through a plan change process.

61 MfE & MBIE, above n 49, at 21.

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Table 3: Major discourses of the Proposed National Policy Statement on Urban Development Capacity: Consultation Document.

74 New Zealand Journal of Environmental Law

3.5 National Policy Statement on Urban Development (NPS-UD) (2020)

The NPS-UD replaced the NPS-UDC in 2020. The NPS-UD also followed the streamlined alternative NPS process.

3.6 Consultation Process Overview

Prior to the official public consultation period, officials from the Ministry for the Environment (MfE) and the newly formed Ministry of Housing and Urban Development (HUD) met with “key stakeholders”. “Pre-consultation” events included: workshops with council staff in high-growth cities; “joined- up” meetings with the public, and with hapū and iwi, which simultaneously consulted about a wide range of government policies (like the Urban Growth Agenda, see below). The Ministry for the Environment released a discussion document to the public titled Planning for successful cities in August 2019,⁶² and accepted submissions on this document from 21 August to 10 October 2019. Feedback was also solicited on MfE’s social media page. Submissions were compiled and sorted into themes in a summary of submissions. Officials also engaged with “key stakeholders” and councils in major urban centres (MUCs) during the consultation period.⁶³

3.7 Consultation Discourses

• 3.7.1 The issues, NPS rationale, and discourses

The Discussion Document lists an array of urban problems: housing unafford- ability, homelessness, decreasing rates of home ownership, congestion, pollution, and intergenerational equity.⁶⁴ The NPS-UD is presented as one component of the broader “Urban Growth Agenda” (UGA) which is billed as a wide package of interconnected measures to manage urban growth. Like the NPS-UDC, the NPS-UD intends to require councils to provide development capacity to enable growth. Yet beyond this, it would also require growth to be strategically located near transport facilities.

62. Ministry for the Environment [MfE] Planning for successful cities: A discussion document on a proposed national policy statement on urban development (Ministry for the Environment, Wellington, 2019).
63. Ministry for the Environment Proposed national policy statement on urban development: Summary of submissions (Ministry for the Environment, Wellington, 2020) at 5–7.
64. MfE, above n 62, at 7.

Post-Politics and the Promulgation of National Planning Policy in NZ 75

Table 4 contains a summary of major discourses within the Discussion Document. Many of the major discourses are similar to those of the NPS-UDC (Table 3), such as the planning system creating major barriers to development, and that obstacles need to be reduced so that the market can deliver necessary growth to meet demand. There is also discussion of how the planning system disproportionately represents certain groups, at the expense of others. Yet the Discussion Document presents further rationale for an updated NPS, contending that the NPS-UDC is a good first step, but not sufficiently broad to tackle the “outcomes we are seeking”.⁶⁵ This includes where to locate development, as well as the intensity of development. It also includes discussion of which rules of development need to be relaxed, such as “restrictive” height rules.⁶⁶

• 3.7.2 Degree of policy completeness, consultation parameters, and submissions

The lengthy Discussion Document presents 10 proposed objectives and accompanying policies of the proposed NPS-UD in extensive detail, of which some are amendments to the NPS-UDC, and some are new additions. It then provides a series of questions to guide submissions. The first query asks whether the submitter supports an NPS that “aims to deliver quality urban environments and make room for growth”.⁶⁷ The follow-up question queries whether the submitter thinks other tools (RMA or non-statutory) could more effectively achieve “a quality urban environment and making room for growth”.⁶⁸

Due to space constraints, this section will examine proposals and feedback related to just one particular proposal, given its contestable nature: proposed provisions for intensification. Submitters were asked to choose their preferred options for intensified development, asking whether submitters support a descriptive or prescriptive approach to intensification (Q8). The former would require councils to provide for “higher-density residential activities” within a suitable catchment area⁶⁹ and would give councils wider discretion on deciding the location of this intensification. The latter would direct local councils to intensify in specific areas.

65 At 18.

66 At 43.

67 At 18.

68 At 18.

69 At 37.

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Table 4: Planning for successful cities: A discussion document on a proposed National Policy Statement on Urban Development. Source: Ministry for the Environment, Wellington, 2019.

A total of 256 submissions were received, including 80 individual submissions, which were analysed in a Summary of submissions document.⁷⁰ Local government submissions were the second highest (43), then NGOs (26), businesses (18) and infrastructure providers (17). Eighty-seven per cent of respondents fully supported or somewhat supported an NPS which aims to deliver quality urban environments (Q1). In terms of support for prescriptive or descriptive requirements for intensification (Q8), there was more support for the latter. Local authorities mainly supported a descriptive approach, in that it would allow for more discretion at the local decision-making level. Some supported a prescriptive approach, in that it would mandate intensification regardless of issues such as character or heritage, while others opposed it for that very reason.⁷¹

Some elements that respondents raised, which were not considered within the parameters of the NPS-UD, were urban design guidelines, quality of life in intensified housing developments, greater consideration of climate change and natural hazards, and broadening the definition of infrastructure to include social infrastructure.

3.8 Ad Hoc Panel: Technical Advisory Panel

Officials from MfE and HUD appointed a four-person “independent technical advisory panel”,⁷² which was assigned two focus areas: ensuring the “development process, including public consultation and the engagement process, was robust and transparent” and to ensure the “content of the NPS-UD meets the requirements of the RMA”.⁷³ The terms of reference established the panel would receive a package of relevant reports to review, and peer-review officials’ recommendations during four workshops.

During its penultimate workshop, the panel noted they could not complete their duties, as they did not have access to the complete documents agreed on in the terms of reference, and that there would be insufficient time to confirm that the content of the NPS-UD meets the requirements of the RMA. The terms of reference were subsequently changed (a circumstance which was allowed according to the original terms of reference), significantly curtailing the panel’s role: the panel would now only review and comment on “policy intent and

70 MfE, above n 63, at 9.

71 At 10–43.

72. This term does not appear in the RMA provisions regarding national direction, nor is it mandated by the s 46A(3)(b) alternative process.
73. Ministry for the Environment and Ministry of Housing and Urban Development Recommendations and decisions report on the National Policy Statement on Urban Development (Ministry for the Environment and Ministry of Housing and Urban Development, Wellington, 2020) at 19.

recommendations”, including comments on an initial draft of the NPS-UD.⁷⁴ Significantly, the panel would no longer review or comment on any subsequent ministerial proposals or changes.

The panel later commented in a letter to MfE that given the “presumption” of public participation in the RMA, “significant benefits” would be derived from submitting a full draft NPS-UD for public consultation. They acknowledged that “process and time constraints” precluded this step.⁷⁵ Officials acknowledged that there would be value in public consultation on an NPS draft and countered that further “targeted consultation” was undertaken in February and March 2020 with (unspecified) councils, specifically regarding provisions which were substantially different to those outlined in the public Discussion Document.⁷⁶

3.9 Major Policy Outcomes

A Recommendations and decisions report recommended that “the scope and content of the NPS-UD, as proposed in the NPS-UD discussion document, is largely retained”.⁷⁷ In terms of the choice between a prescriptive or descriptive approach to intensification, despite a preference for a descriptive approach, ultimately a “scaled” approach was chosen. This would apply a more prescriptive approach towards built form of development near rapid transit stops and near city and metropolitan centre zones for tier 1 councils, but give some flexibility in determining the extent of this scale of development around those locations (ie some discretion on the meaning of a “walkable catchment”). This was justified on the basis of a cost-benefit analysis which “demonstrates that greater intensification will better enable well-functioning urban environments and more competitive development markets, especially in locations where there is high demand”.⁷⁸

3.10 Post-Political Analysis

Several points are salient in terms of how much the NPS makes room for the political. It appears the officials leading the NPS-UD process sought for thoroughness, rigour and transparency. This is evident from the unprecedented hybrid process, which implemented an independent “technical advisory panel”. However, ultimately the panel was unable to complete their duties as per the original terms of reference, citing lack of promised documents from Government to consider, as well as a tight timeframe which precluded them

74 At 19–21.

75 At 20.

76 At 21.

77 At 23.

78 At 53.

finishing. It is thus unclear whether it was able to provide the “checks and balances” that were originally sought. The panel, while it performed similar functions to a BOI, did not require a submissions hearing, precluding the opportunity for submitters to be heard. Nevertheless, the NPS-UD process allowed for a much longer consultation period than that of the NPS-UDC. The Recommendations and decisions report provided a transparent look at the final recommendations for the policy, as well as justifications for these decisions.

It is apparent from discourses employed within the Discussion Document (Table 4) that a growth-focused policy would be pursued, which relied on market mechanisms to help deliver policy outcomes. Given that the NPS-UD was billed as a broadening of the NPS-UDC, this is unsurprising. It is evident from the consultation questions that there was never really a question as to the broad direction of this NPS. Even the first question — the closest the document came to allowing input on the broad direction of the NPS — was framed in a leading way which shut down meaningful input about policy parameters or approach: do you support an NPS which “aims to deliver quality urban environments and make room for growth?”.⁷⁹ The only follow-up about broad policy directions was a query about what non-statutory tools could be employed towards the purpose of better urban development outcomes. The parameters of discussion did not sufficiently allow for questioning the intent and objectives of the NPS.

While the broad parameters of the NPS were largely immutable, there was some earnest feedback sought about the direction of specific policies. This included, for instance, feedback solicited about the policies and methods suggested for intensification (which was, similar to a growth-focused broad direction, a foregone conclusion before consultation, as part of the hegemonic vision of the NPS). The Discussion Document presented submitters with a choice of a prescriptive or descriptive intensification approach. Despite the submitters’ overall preference for the latter, the former was ultimately chosen. While the preference of submitters was noted, the choice for prescriptive requirements was couched in economic and technical terms: “cost-benefit analysis” and “evidence” demonstrated “that greater intensification will better enable well-functioning urban environments and more competitive development markets, especially in locations where there is high demand”.⁸⁰ This is displacing the political: it is not explicitly acknowledged that this may cause tension or dissatisfaction; the decision was largely outsourced to experts, relying on technical justifications.

The upshot of a prescriptive approach is that the NPS-UD appears to have traded some “restrictive” planning rules, frequently cited as such within the

79 MfE, above n 62, at 18.

80 At 53.

Discussion Document, for new directive planning rules. There is never an acknowledgement of why those so-called restrictive planning rules (height, balcony size minimums, etc) existed in the first place, and what might be sacrificed or changed by abandoning or overriding them. Restrictive planning rules, along with the entire planning system, are painted to favour entrenched interests, leaving out entire communities. The NPS-UD is proffered as a solution for those disenfranchised by the planning system, presumably by increasing housing affordability as the market starts providing for more diverse house typologies. It is thus assumed that the market will provide these affordable homes. The possibility that it will not provide these homes is not entertained. This may have the effect of dispersing the political, by which the political can be “fragmented and diluted from an immediate or physically affected community to new, undefined and vague communities, such as the ‘public interest’ or ‘future generations’”.⁸¹ If there are negative outcomes in the years after the NPS-UD is enacted (affordable housing is not ultimately delivered, or mixed-tenure communities create negative social outcomes for residents), the political may manifest through collective dissatisfaction.

The choice of a prescriptive zoning approach may ultimately have the effect of deferring the political. The NPS provisions will be given effect to through plan changes. In Auckland, for example, the Unitary Plan process created a vision for the city, including areas earmarked for intensification. Homeowners will now be presented with a new vision for their cities through the NPS-UD plan change process, which they may not entirely embrace, and may ultimately challenge. It is not to say this vision is bad, or wrong; however, given that there were no public hearings, and individual submissions (though higher than for the NPS-UDC) were relatively few, it indicates a fundamental disconnect between the reality of how much an NPS may affect people, and the extent to which the wider urban public was aware of, or actively involved in, the proceedings.

It bears noting that beyond the concerns highlighted in the previous discussion, the recent enactment of the bipartisan RMA (Enabling Housing Supply and Other Matters) Amendment Act in December 2021 presents a troubling epilogue to promulgation of the NPS-UD, from a post-political standpoint. The Act is designed to increase the housing supply of main urban areas by both hastening the implementation of the NPS-UD, as well as enabling more medium-density development through mandated “medium density residential standards”.⁸²

First, the Bill moved quickly through the law-making process, with a brief three-week consultation period, which minimised opportunity to account for

81. Allmendinger, above n 59, at 216.
82. Resource Management Act (Enabling Housing and Other Matters) Amendment Act 2021.

the political from the outset (ie changing any broad parameters of the Bill). In addition to its rushed character, the Act contains prescriptive provisions which were inserted by an Act of Parliament directly into the RMA, rather than through the normal process of amending an NPS. For instance, the Act contains prescriptive design parameters of medium-density housing — some of which had immediate legal effect and would not be subject to consultation during subsequent local plan change processes to accommodate other provisions of the Act or the NPS-UD. While it is beyond the scope of this analysis to provide further commentary on this Act, it remains to be seen whether the implementation of national planning instruments that are rushed, prescriptive and promulgated outside of normal NPS processes (or a combination of all these things) becomes a regular post-political tactic.

3.11 Comparisons and Conclusions

The case studies thus reveal that the legislative amendments to the NPS process have affected the extent to which the political was accounted for in the NPS processes. Perhaps the most impactful amendment was the 2005 addition of a streamlined alternative process, which allows the Minister (or in the case of both NPS processes, ministries) a large amount of discretion over the process. Both processes, led by different political parties, followed the alternative NPS process, which yielded mixed results; similarities included collaborative elements of consultation: in the case of the NPS-UDC, this was statutorily required, while the NPS-UD process implemented this voluntarily. While the collaborative process is not formally included in RMA processes, to the extent that it has been noted in other countries,⁸³ it clearly still plays a part in New Zealand planning processes.

The NPS-UD process was more transparent, thorough and solicited more submissions (especially from the general public) than the NPS-UDC process. The NPS-UDC process was truncated, and interestingly, relevant documents detailing the entire process are fewer (and those that exist much less thorough). However, ultimately, both policies were largely enacted as they were intended. The broad parameters of discourse were tightly controlled — and the objectives largely predetermined. Submitters could only provide feedback on specific policies. Policy content was largely predetermined before it reached the public, and fundamental questions about the framework would not be entertained.

Finally, it is clear that amendments which have allowed for higher levels of prescription have also influenced NPS outcomes, which can be seen in the example of the NPS-UD. The process for implementing the NPS-UD is ongoing, and has been expedited by the new bipartisan Bill as discussed above.

83. See Allmendinger and Haughton, above n 8.

4. RESOURCE MANAGEMENT ACT REFORM

A Labour-appointed Resource Management Review Panel recommended the repeal and replacement of the Act in June 2020.⁸⁴ It recommended a suite of replacement legislation: a Natural and Built Environment Act (NBA) to serve as the main resource management statute; a Spacial Planning Act (SPA) which requires the development of long-term regional spatial strategies; and a Climate Adaptation Act (CAA).

In February 2021, Government initiated the repeal and replace process in accordance with the Panel’s recommendations. The first stage of a two-stage select committee process commenced with the release of an exposure draft of the NBA and an accompanying explanatory parliamentary paper.

Submissions on the exposure draft were accepted between June and August 2021, and were considered by the select committee during the second stage of the process. The select committee’s inquiry culminated with a report which concluded that the NBA development process should continue, and the full Bill to be submitted to the House of Representatives.⁸⁵ The Natural and Built Environment Bill (NBE Bill) was subsequently introduced to Parliament on 15 November 2022 for its first reading on 22 November 2022.

4.1 The National Planning Framework

By way of broad summary, the approach of the NBA is markedly different from its predecessor, as it creates not only an obligation to manage adverse effects, but also to proactively promote outcomes for the benefit of the environment, to be achieved through setting environmental limits and associated targets.⁸⁶ To achieve the purpose of the Act, a national planning framework (and all plans) must provide for “system outcomes”, ranging from the protection or restoration of the environment, to well-functioning urban areas.⁸⁷

Generally speaking, the initial impression imparted by the NBE Bill is that the resultant NBA will arguably be less enabling (less neoliberal) a planning regime than the RMA, as the national planning framework (NPF) will set certain minimum biophysical states that must be maintained, and maximum amounts of harm that may be permitted by proposed activities. This may mark a departure from planning that sacrifices the political in favour of policies which

84. Report of the Resource Management Review Panel New Directions for Resource Management in New Zealand (Resource Management Review Panel, Wellington, June 2020) at 5–7.
85. Environment Committee Inquiry on the Natural and Built Environments Bill: Parliamentary Paper (November 2021) at 13.
86. Natural and Built Environment Bill 2022 (186-1) [NBE Bill], cl 3.
87. Clause 5.

are meant to simply advance economic development, which is a hallmark of post-political planning. This obviously merits further discussion that is beyond the scope of this article.

The Bill fleshes out the processes for promulgating the NPF that were absent from the exposure draft, as well as the processes by which national direction are given effect to in plans or regional spatial strategies (defined in the Spatial Strategy Bill as a strategy prepared and adopted by a regional planning committee).⁸⁸

The level of detail provided by the Bill in terms of the promulgation of the NPF, and how it will be given effect to by lower-level planning instruments, allows for a preliminary comparison of RMA and future NBA processes from a post-political perspective, and the extent to which the political may be accommodated or diminished.

Several key points in this regard include the following.

• 4.1.1 A mandatory NPF, with some mandatory topics

An explanatory note prefacing the Bill explains that the NPF will be rolled out in stages to support the new planning system, and will transition the policy intent of existing RMA national direction, contain new policy content on infrastructure, as well as add new content over time.⁸⁹

In terms of what matters will be addressed, the exposure draft included an explicit list of topics that must be included in a mandatory NPF (Figure 1).⁹⁰ The Bill also specifies that an NPF is mandatory at all times.⁹¹ It also appears to largely have retained the required topics that must be addressed by the NPF as indicated in the exposure draft; the Bill requires that certain topics are addressed within the NPF: environmental limits regarding air, indigenous biodiversity, coastal water, estuaries, freshwater and soil must be set through the NPF.⁹² The Bill also requires direction to be provided through the NPF on certain matters (Figure 2).⁹³

88. Spatial Planning Bill 2022 (187-1) [SPA], cl 8. 89 NBE Bill, explanatory note.
90. New Zealand Government Natural and Built Environments Bill: Parliamentary paper on the exposure draft (New Zealand Government, Wellington, 2021) at 9–13 (consultation draft).
91. NBE Bill, cl 32.
92. Clause 38.
93. Clause 58.

13 Topics that national planning framework must include

(1) The national planning framework must set out provisions directing the out- comes described in—

(a) section 8(a) (the quality of air, freshwater, coastal waters, estuaries, and soils); and

(b) section 8(b) (ecological integrity); and

(c) section 8(c) (outstanding natural features and landscapes); and

(d) section 8(d) (areas of significant indigenous vegetation and significant habitats of indigenous animals); and

(e) section 8(j) (greenhouse gas emissions); and (f ) section 8(k) (urban areas); and

(g) section 8(l) (housing supply); and

(h) section 8(o) (infrastructure services); and

(i) section 8(p) (natural hazards and climate change);.

(2) The national planning framework may also include provisions on any other matter that accords with the purpose of the national planning framework, including a matter relevant to an environmental outcome provided for in section 8.

(3) In addition, the national planning framework must include provisions to help resolve conflicts relating to the environment, including conflicts

between or among any of the environmental outcomes described in section 8.

Figure 1: Natural and Built Environments Bill: Parliamentary paper on the exposure draft (pt 3 cl 12).

Source: New Zealand Government, Wellington, 2021.

While the RMA stipulated the role of national direction within the planning hierarchy, it never explicitly mandated national direction, much less dictated topics of national direction. A mandatory requirement, with some mandatory topics to implement through the NPF, would thus represent a significant change to the country’s planning regime.

58 National planning framework must provide direction on certain matters

The national planning framework must include content that provides direction on:

(a) non-commercial housing on Māori land:

(b) papakāinga on Māori land:

(c) enabling development capacity well ahead of expected demand:

(d) enabling infrastructure and development corridors:

(e) enabling renewable electricity generation and its transmission.

(e)

Figure 2: Natural and Built Environment Bill, cl 58. Source: <https://www.legislation.govt.nz/>.

A mandatory NPF which must address certain environmental outcomes or provide direction on certain matters presents interesting implications in terms of the political. On the one hand, it provides clarity for localities moving forward in terms of what matters are of national significance. The inclusion of an express list of topics also provided transparency for submitters, allowing for an expression of the political at this stage of the formulation of the NBA. (On the other hand, if submitters’ views on topics of national significance were not reflected by the Bill, this would be an instance of deferring or transferring the political.)

Incidentally, the Select Committee did not favour the explicit delineation of topics for the NPF, reasoning that topics of national significance would emerge over time. They recommended a threshold test and/or evaluation criteria to determine what could constitute a matter of national significance. Such a test does not appear to have been explicitly included in the Bill. Thus, the decision as to what constitutes issues of national significance, and must be addressed through the NPF in the future, appears to rest with the Minister. This could perpetuate the current dynamic where national direction policy is largely formulated by the time it is opened up for submissions. The extent to which the Ministry consults with other parties in deciding topics for future national direction, and the process by which these topics are codified into the NPF, will be key in terms of allowing expressions of the political within NPF processes.

• 4.1.2 Standard process for preparing and amending the NPF

The NPF will be prepared via a single, standard process. The broad strokes of this process include:

• Pre-notification engagement, which must include collaboration between the National Māori Entity and the Minister; it is also required that the Minister engage with iwi authorities and groups that represent hapū on a proposal, with individuals or organisations that the Minister considers representative of the local government sector, and with any person deemed appropriate by the Minister.⁹⁴
• If environmental limits or targets are proposed, a panel — chosen by the Minister — must review these items in terms of their effectiveness, ability to be monitored or reported on, and underpinned by evidence.⁹⁵
• An evaluation of the proposal prepared by the Minister. This must assess whether the proposal is the most appropriate way to achieve the purposes of: the Act, the NPF, setting environmental limits or setting targets. Interestingly, this evaluation must also consider whether it is appropriate to apply provisions or directions at a national rather than local level.⁹⁶
• Public notice of the NPF proposal is required: this includes notice of the NPF proposal, and overview of the policy intent of the proposal, and the evaluation report. Written submissions from any person on the proposal are invited; persons must state if they wish to be heard in respect of the submission.⁹⁷
• The Minister must establish a board of inquiry to assess the proposal.⁹⁸ They must have particular regard to the Minister’s evaluation report that is notified; they must have regard to other items such as sub- missions, any evidence received, report recommendations from any review of the NPF. It also sets out matters the board must disregard, such as effects on scenic views from private property, or any adverse effect arising from the use of the land by people on low incomes or with special housing needs.⁹⁹ They must supply a report after the completion of their inquiry, setting out the board’s recommendations and reasoning, which must be made available to the public.¹⁰⁰ While the Select Committee recommended a standing board of inquiry, this was not incorporated into the Bill.¹⁰¹

There is no streamlined or ad hoc process for creating the NPF in the Bill. This marks a departure from the RMA, where successive amendments over

94. Schedule 6 cl 2.
95. Schedule 6 cl 3.
96. Schedule 6 cl 6.
97. Schedule 6 cl 8.
98. Schedule 6 cl 9.
99. Schedule 6 cl 19.
100. Schedule 6 cl 20.
101. Environment Committee, above n 85.

the years enabled increasingly abbreviated processes for formulating national direction. The requirement for a board of inquiry to assess each NPF proposal is a strong step towards encouraging a robust policy formulation process, where submitters have a right to be heard in a hearing.

One caveat is that while there is no streamlined process for creating the NPF, there is a streamlined process for amending its provisions. This process may be used if the Minister is satisfied that the proposed amendment will not create a significant departure from existing direction in the framework. The Minister can also consider other factors to determine the appropriateness of this approach, including the advantage or disadvantage of acting quickly, or the extent and timing of any public debate and consultation that has taken place on the matter. This streamlined process still involves a board of inquiry and allows for submissions, although no hearing will be held and paper submissions will be considered only.¹⁰²

It is encouraging that a board of inquiry will still be required as per this streamlined amending process. However, some warning signs that the political could be deferred or displaced during this process is the fact that no hearing is required, and also that the Minister is afforded a fair amount of discretion in this process. Still, the clause requires the Minister to consider the extent to which consultation and debate has already taken place on the matter. This may be the first time the word “debate” appears within planning legislation in New Zealand. This could be taken as acknowledgement that issues of national significance and the policy that addresses them can be contentious — and that debate is a normal and necessary part of the process — in effect, embracing the political within the process.

• 4.1.3 Ministerial powers

One element of the RMA processes of national policy promulgation that appears to have been carried over to the Bill is that the Minister is still afforded relatively strong powers within the process. For instance, the Minister is granted the right to the final decision as to the content of an NPF proposal, and while they must have particular regard to the NPF evaluation report, they are only required to have regard to other matters, such as the BOI report.¹⁰³

There do appear to be some checks and balances to ministerial power. While the Minister may withdraw all or part of an NPF proposal, public notice of the withdrawal, along with the reasons for the withdrawal, must be provided.¹⁰⁴

102. NBE Bill, sch 6 cl 24.
103. Schedule 6 cl 21.
104. Schedule 6 cl 18.

The Minister may also direct a BOI to suspend its inquiry for a specified period or until a specified event occurs, although must give the public notice of such suspension of inquiry.¹⁰⁵ Another check on ministerial power exists within the framework for determining ministerial exemptions for certain activities, where certain criteria delineated in the Bill must be met.¹⁰⁶ If during the required nine- yearly review of the NPF, to assess the extent to which it is meeting its purpose, changes must be done in collaboration with the National Māori Entity, and must be implemented in plans using the appropriate process in sch 6.¹⁰⁷

Overall, the NBA appears to contain more checks to ministerial power than the RMA. However, the final extent to which ministerial powers may defer, displace or transfer the political during the NPF promulgation process ultimately depends on the extent to which they are exercised.

• 4.1.4 Giving effect to the NPF through plans

Schedule 7 sets out plan-making and plan changes processes. The Bill lays out three processes by which a plan may be created. The standard process, which would involve an independent hearing panel (IHP), must be followed for first plans prepared under the Act and subsequent reviews of the full plan, or in any circumstances where it is proposed to amend the strategic content of a plan.¹⁰⁸ It also introduces a proportionate process and an urgent process, to be used under more narrow circumstances, which would involve commissioners hearing submissions and making recommendations on a plan, rather than an IHP.¹⁰⁹

While these processes generally appear to be robust in terms of providing for public participation, along with an IHP, one item of note concerns the extent to which the NPF can circumvent these plan-making or plan change processes. The NPF may direct regional planning committees to insert specific provisions in their regional strategies and plans.¹¹⁰ Regional planning committees, in turn, must amend a proposed plan if directed to do so by the NPF without using the processes provided in sch 7.¹¹¹ This is reminiscent of RMA provisions which also allowed for NPS provisions to be inserted into lower-level plans without using the sch 1 process.

105. Schedule 6 cl 17.
106. Section 64.
107. Schedule 6 cl 27.
108. Schedule 7 cl 7(1).
109. Schedule 7 cl 7(2), (3).
110. Section 60.
111. Schedule 7 cl 40.

5. CONCLUSION

In sum, there appear to be significant gains in terms of how and where the political may be expressed within the proposed processes for NPF promulgation: a standard process for NPF preparation which must involve a board of inquiry; or a streamlined amendment process which also includes a BOI and has regard to prior consultation and debate. However, ministerial powers, even with checks and balances, are still strong under the NBE Bill. And there still does not appear to be a mechanism for a wider audience, beyond those deemed relevant by the Minister during the pre-notification engagement stage, to provide input on broader policy intent before the public notification stage.

Inclusion of such a mechanism would ensure that the public of New Zealand — who are paying attention to the planning system now more than ever, following the devastating weather events that rocked the North Island in early 2023 — are afforded a chance to weigh in on their future. Charting a course through uncertain times will surely elicit expressions of the political from the public — conflict, dissensus, or fundamentally different views of what the future should look like. The most robust and fair national planning policy promulgation process is one that accounts for the political head-on, rather than only allowing the public to tinker at the edges.