Spatial Planning Bill

Members, we come now to Part 3. This is the debate on clauses 58 to 70, “General powers, duties, and other matters”, and Schedule 5.

Thank you, Madam Chair. Well, here we go. This is the sort of the grand wrap up, actually, and all through this legislative sweep that’s been proposed by the current Government in its last few weeks in office. One of the criticisms of this whole change to the Resource Management Act regime is that the proposals given to the Minister for the Environment are incredibly wide-ranging, enormously broad in their breadth and ability for the Minister of the day to intervene.

So Part 3, as the Chair has rightly said, indicates the general powers, duties, and other matters. Subpart 1, “Powers and duties”, clause 58 “Minister may require information”, 58(1) “The Minister may give written and dated notice requiring information to be supplied by the following bodies: a regional planning committee, a local authority, a network utility operator (including an additional utility operator) approved as requiring authority.” Now, that’s a very wide range of organisations. Regional planning committees, local authorities—well, those are arms of local government, but network utility operators often have a stand-alone private investment capacity, or indeed they are partially owned by the Crown, or indeed have public shareholding in some cases.

So the ability for a Minister to require information is quite a high threshold to insist that a Minister can delve into and require from these entities information pretty much of whatever sort that the Minister may deem as being required. Clause 58(2) sets out the kind of information that may be required, and it does say in (c) that it may reasonably be required by the Minister. So there is a reasonableness test, and I guess that at some point an entity, a utility in particular, is probably going to want to test that judicially.

I want to come on to the time frames required. Clause 58(3) requires that “The body must supply the information to the Minister within 20 working days after the date of notice, or a longer time set by the Minister.” So the Minister can set a longer time because as we know, 20 working days when it comes to official information requests can be considerably longer in most cases than 20 working days.

But for me, here’s the kicker. Those entities, the regional planning committees, the local authorities, the network utility operators under clause 58(4), “The body must not charge the Minister for supplying the information.” So that information has to be provided for free to the Minister, at the Minister’s request, as long as there is a an element of reasonableness, and that test of reasonableness will have to be defined—

💬 Stuart Smith: Because of work of the OIA.

—my colleague Stuart Smith makes a very good point about the Official Information Act—but must not charge. So my question to the Minister in the chair is, is that fair and reasonable, particularly in the case of network utility operators who may be, and often are, commercial entities required to report to shareholders and stakeholders in some cases, but that shareholder can be the Crown—

💬 Stuart Smith: Could be a trust.

Could be a trust—all sorts of things.

So can the Minister give us some sense of assurance that requests for information are going to be reasonable, the statute says may reasonably be required, but whereabouts does that reasonableness fit? Given that the Minister is not going to be able to charge—sorry, the entity or the body is not going to be able to charge the Minister for that information, I’m kind of keen to have some certainty or assurance that that’s not going to be an unnecessarily burdensome cost upon those organisations.

Thank you. Well, I would just point that member there—he did sort of point to it himself, to clause 58(2)(a)(iii) regarding that network utility operator, and this is to do with implementation plans. It is about the performance of the operator’s responsibilities under an implementation plan. So that is narrow, and it is in their interest to provide that information.

Thank you, Madam Chair. Actually, my colleague the Hon Scott Simpson made the very good point that the Minister is able to intervene to extraordinary lengths within these pieces of legislation, despite all the evidence that suggests that localism is a much better way to go for a more efficient management of resources and spatial areas, whereas this Spatial Planning Bill sets out to allow the Minister to have the wisdom of Solomon, or perhaps the wisdom of Parker, to—

💬 Hon Scott Simpson: Which would be the greater wisdom, do you think?

Well, I’m not going to make that judgment; I’ll leave that to the reader to make that decision. But if we look at clause 60, the Minister may direct amendments of spatial strategies, and it goes on to say that “The Minister may direct a regional planning committee to amend its regional spatial strategy if the Minister is satisfied that the amendment is necessary or desirable to ensure that the strategy complies with any of—”, and it goes through a number of things.

But why would you set up committees to make decisions that they have to take to the teacher, like their homework, and then they’ll say, “No, go and rewrite your essay. It’s not good enough.”? It just doesn’t seem to be an efficient way to run a system, and I know this might be a shock to some on the other side, but not all Ministers are great at their job. Sometimes you can get a rogue Minister who’s not doing a very good job, and yet they have the power to step in and—

💬 Hon Scott Simpson: Marian Hobbs was one.

Exactly—she was.

💬 Hon Scott Simpson: She went rogue.

She went rogue—that’s right. I’m not suggesting anyone is going to go rogue, but you have to have that as part of it.

I mean, the reality is that with human nature being what it is, we are not all equal. Some people make a better job of things than others. Ministers do come and go, and yet we’re setting this up to have one person to control this—one person. I’d like the Minister to explain why.

It doesn’t really seem like there’s a reasonable test in this to say that the Minister has to have reasonable cause to actually come in over the top of the regional committee and make a direction. So I’d like to know some detail about this, and perhaps the Minister could give us an example—that would be really helpful—of when she thinks that in the way this legislation is written, it would be reasonable for a Minister to come in over the top of the regional planning committee and rule over the top of it. Thank you.

Thank you, Madam Chair. As the members will know, the Resource Management Act (RMA) currently has a lot of ministerial powers and most of these powers in here have been carried over from the RMA with those existing checks and balances. So you’ll see there that the member Stuart Smith was referring to clause 60, and at clause 60(3), there is a whole lot of revisions that the Minister must do if they are using that discretionary power found in subclause (1).

The ministerial powers don’t enable the Minister to get involved in the day-to-day decisions of the regional planning committees or the territorial authorities, and, of course, under this new system the Minister has an appointed member on to those committees, so I would expect that the need for any intervention would be reduced because of that. But, of course, the members have said that not all Ministers are perfect, and, likewise, not all regional committee will always be perfect, or they may not be. So this is why we have these ministerial powers in the bill.

Thank you, Madam Chair. Minister, I just want to go to clause 63, because it’s around the Minister making grants and loans. It says “The Minister may make grants [and] loans to any person to assist in achieving the purpose of this Act.” So if you go back to the purpose around te Oranga o te Taiao—it’s quite broad, and it says, “The Minister may impose terms and conditions on a grant or loan”.

Could you just, please—I don’t know if this is a carryover from the Resource Management Act or not, because I don’t know it as well as you do, but it just seems to me that it’s quite broad. Could the Minister give some examples as to what this potentially could be used for, just in the theoretical sort of way—or maybe some examples of where it may have happened in the past?

I understand it is a carry-over here. On my version, it says, “compare with the Resource Management Act”. I’ll see if the officials come up with an example, and I’ll give it to you in a minute.

Thank you, Madam Chair. Minister Brooking, I just want to come to clause 62, that a Minister may direct that any other action be taken where a regional planning committee or a local authority should be exercising or performing a power or a function. If the Minister’s satisfied “the committee or the local authority is not exercising or performing [their] power [or] function, or duty to the extent … the Minister considers [it] necessary to achieve the purpose of [this] Act”—or the Spatial Planning Bill, as it currently is, before it’s amended—and if the Minister’s satisfied the committee has not exercised or performed the power, function, or duty, then the Minister can direct them.

Now, to the Minister in the chair, there is no accountability to voters and to communities through this clause. Currently, when a spatial plan is developed—and I must refer back to Auckland, where I live: the Auckland Unitary Plan is a spatial plan essentially delivering what the plans under this bill would. That spatial plan, Minister, was developed by an Independent Hearings Panel, which then referred the final draft of that plan to the elected Auckland Council. There were objections—most were resolved; some were unresolved—but the Independent Hearings Panel referred the draft Auckland Unitary Plan to the full council, and they voted on it and they voted to accept it, with a few amendments.

Now, if Auckland Council’s plan does not deliver the expected benefits—in other words, it identifies where land should be made available for future urban development, where land should be available for commercial and business purposes or infrastructure—and if the people of Auckland don’t believe that the plan is adequate or that their council is not delivering the infrastructure and the services to give effect to that plan so that more serviced land is made available for housing—because that’s the purpose of planning, right? I mean, planners don’t do a planning degree, spend their life developing competencies in spatial planning, simply to colour in maps and post them on the wall. There is a purpose behind this: it’s to deliver plans that allow communities, the private sector, to build and to live their best lives.

If those communities, made up of voters representing ratepayers and property owners, representing renters, people who live in cities and in regions—if they’re not satisfied with the plan, currently they can vote out the people who approved the plan and they can also ask for new representatives to develop a new plan. In this case, Minister, clause 62 says the Minister in charge may direct action to be taken. It doesn’t say that Minister is accountable back to the people who live in that community, in that region. It might be the thing the Minister wants to do. There’s no accountability. It’s remarkable that after all the submissions that the select committee heard from local government, from regional government, from farmer groups, property developers, people concerned about trees in the urban environment, if a plan’s not working, they won’t have a chance to vote out the people who are failing them; they’ll have to rely on a Minister, but if that Minister’s intentions for their region or district are different, tough luck.

Well, ACT says that’s unacceptable, Minister. There must be democratic accountability for plan makers in each region.

💬 Shanan Halbert: You didn’t do that with Watercare. Auckland Council CCOs.

There must be. Well, this gentleman, Mr Shanan Halbert, says that ACT didn’t do that with Watercare. Well, you know what? If the voters of Auckland don’t like the way that Auckland Council is managing their council-controlled organisation Watercare, they can vote out their elected members, Mr Halbert, but they can’t vote out a Minister who’s directing their region to do stuff. Would you please explain, Minister?

Thank you. On this point that Simon Court is raising about the Minister’s powers, I’d note again that it is only if the Minister is satisfied that the local authority or committee isn’t exercising or performing the powers, functions, and that reasonable steps have been taken to assist that group. Then, there are checks and balances at (3) as well.

On his more, I guess, esoteric points around voting in and out people—[Interruption] There’s nothing wrong with being esoteric—of course, Ministers can also be voted out, would be a point I’d make there.

Back to Barbara Kuriger’s point about clause 63, it is confirmed that it is a carry-over from the Resource Management Act, and the officials tell me that it has rarely, if ever, been used, but perhaps the type of thing that it might be used for is a grant for an IT investment that would benefit all of the committees.

Thank you, Madam Chair. I want to ask the Minister whether clause 64 is a carry-over or not. I suspect it’s not. Clause 64 places a duty of others to assist regional planning committees, and the clause applies to chief executives of departments, Crown entities, local authorities, iwi authorities and groups that represent hapū, network utility operators, and that’s the list. But, again, there is a requirement in clause 64(2) that these persons “must provide information or technical support to a regional planning committee free of charge if—(a) the committee requests the information or support to assist the committee in performing or exercising its powers, functions, or duties under” the legislation.

And so, again, there’s quite a wide-ranging requirement potentially for what could be quite costly levels of information to be provided, and the requirement that it be done free of charge, I think, follows on my previous comments relating to a similar provision. How can the Minister ensure and give us confidence that that is going to be reasonable? There is a reasonableness test, but how can we be sure that that’s not going to be abused, and will that require judicial interpretation at some point? Because I can imagine that the regional planning committees are probably going to require an awful lot of information, because they are effectively setting a strategic plan for a region for 30 years and potentially more than 30 years. So some of the detailed data and information that only a chief executive of a department or a Crown entity or a local authority can provide could potentially be very, very detailed. Now, the regional planning committees of themselves are going to almost certainly create their own secretariat, their own support, their own administrative base, their own datacollecting teams and staff, so I’m interested to know: where’s the balance, what it’s going to be, and how can we be sure that this is going to work as intended? Because notwithstanding what I’m sure is probably a good intent and, probably for reasons that may seem practical, there is a potential, I think, for abuse of this facility that requires information and data to be provided free of charge. So if the Minister can give us some insight into that, that would be very useful, thank you.

Thank you, Madam Chair. I want to turn to clause 65, “Rights or interests in freshwater and geothermal resources preserved”. This clause really outlines that the bill does not create, transfer, extinguish, or determine rights or interests. So, therefore, we take from that that geothermal interests, in particular, that I want to talk about are not going to be affected by this bill. But I do note that Contact Energy in their submission warned that the bills risk delaying the decarbonisation of the energy sector, putting New Zealand’s emission-reduction goals at risk. So that has to come from a fear about something within these bills. So if the spatial plans, Minister, cannot extinguish the rights of any party to those resources, how might the plans actually effectively extinguish it by not allowing them to access those resources? So, as we often know, geological structures don’t follow lines on maps, and so I imagine spatial plans will be based on the surface area, not in the aquifers beneath. An earthquake may, for example, change the structure of the aquifer underneath, which is the resource for the geothermal plant. Therefore, they have to go somewhere else. Is that affected if horizontal drilling in the geothermal space underneath crosses the spatial plan’s boundary underneath the surface? Is that an allowable activity?

💬 Simon Court: It sparked a war between Iraq and Kuwait.

Wow! It’s a very serious question, and I know it might seem a little technical, Minister, but it could be very important. I do note the concern of Contact Energy, and I’m sure they don’t spend their days trying to trip up the Government. They are concerned about their business. So that must come from some real concern. So have you turned your mind to that, Minister? I’d be really interested if that is the sort of thing you think that they might be concerned about in their submission.

As I’ve noted a couple of times in this debate, these spatial planning plans are not regulatory plans. That is the Natural and Built Environment plan, and these provisions—clauses 66 and 65—are largely carry-overs from the Resource Management Act.

Going back to the Hon Scott Simpson’s points about the different bodies that need to provide information for free under clause 64—of course, this is an important point, and I think the member acknowledged this as well; we are trying to get all the relevant parties involved in the making of this plan and, therefore, we need the information sharing. As he noted as well, there is that practical and reasonable test but also under Schedule 8 of the Natural and Built Environment Bill, if it is costly, it can be paid for.

I call on Scott—

💬 Hon Scott Simpson: Simon Court.

CHAIRPERSON (Hon Jenny Salesa): Simon Court, sorry.

💬 Hon Scott Simpson: It’s getting late, Madam Chair.

CHAIRPERSON (Hon Jenny Salesa): It’s getting too late in the night.

Madam Chair, I do accept the honorific of being compared to the Hon Scott Simpson. What a charming, dapper, and experienced member of the Environment Committee, who I would have to give no small credit to for what I have learnt in my three short years as an MP.

Minister, clause 63, a “Minister may make grants or loans to any person to assist in achieving the purpose of this Act.” Now, it does go on to say that money must be “appropriated by Parliament for [this] purpose.” But Minister, I’m concerned that a Minister of the Crown having all of the powers of a Minister for the Environment conferred by the Natural and Built Environment Act, as it no doubt will become, and the Spatial Planning Bill, or Act, as this will become, will also have the power to hand out some Crown bucks, some green bucks, to any person to assist in achieving the purpose of this Act.

Now that’s a remarkable thing to include in a bill. Minister, would you care to explain, in just a moment, because I’ve got three questions. What are the criteria that a taxpayer might assume are applied to this power for the Minister to make grants and loans?

💬 Hon Scott Simpson: Where do we apply—where do we apply?

The Hon Scott Simpson wants to know where does he apply? I’m sure that’s because he’s the member for Coromandel. He has a plan to capture and rehome some Hochstetter’s frogs because he might be a person assisting in achieving the purpose of the Act.

Minister, clause 66. “Interests in land are not taken or injuriously affected by regional spatial [strategy]”. It says here, “An interest in land must be treated as not being taken or injuriously affected by any provision in a regional spatial strategy unless this Act provides otherwise.” Minister, are we to assume that property owners’ interests in land will be injuriously affected by plans made under this bill, or Act when it becomes law?

Will the Minister explain what that clause means? Because many, many submitters at the Environment Committee were concerned at the erosion of property rights—including existing rights—through resource consents to take water, to discharge to the commons from their businesses from their undertakings. Minister, would you explain, in addition to what is the criteria for the handing out of green bucks or planning bucks under clause 63, what is the risk of interest in land being injuriously affected by regional spatial strategies? How’s that to be mitigated?

Then, Minister, we come to clause 67, “System performance”. Now, Minister, I remember that you were on the Randerson panel that identified some of the problems with the Resource Management Act. One of them was—when it came to consenting and land development, making land available for housing, and for making it easier to build infrastructure—that the performance of the Resource Management Act was poor and that this legislation and the corresponding complementary bills were intended to improve system performance.

Yet, rather than the efficiency of the system being up there, maybe in the purpose clause, it’s down here at clause 67. Which doesn’t give it much weight, Minister, compared to all the other things that people making decisions, having powers, giving effect to things under this legislation will have to take account of.

System performance—chief executives are supposed to prepare a monitoring and evaluation report and then to report on it, and local authorities have to prepare a report on it. Well, goodness me. How the ambition to improve the system performance of the resource management, the land management, environmental management process has been eroded. Clause 67, Minister, would you care to explain your answers to those three questions?

We’re starting at clause 67, “System performance”. Of course, it is the whole scheme of the legislation and having these spatial plans that is one of the ways to achieve the issues identified by the Randerson review there. Clause 67, though, is, of course, helpful. Going backwards, now, to clause 66. This is the same as the Resource Management Act (RMA) and it’s not an erosion of any property rights. As I said before, the same can be said for clause 63.

I do want to, though, turn it back to Stuart Smith’s question. My apologies to Stuart Smith when I said everything was the same as the RMA. There is, in fact, at clause 65—it is the same as clause 814 of the Natural and Built Environment Bill and it’s consistent with a High Court case. The Crown has committed to not preclude options to address freshwater rights and interests, and this clause is to preserve that commitment.

I move, That the question be now put.

Thank you, Madam Chair. Just in terms of the regulations, Minister—the Governor-General, in terms of clause 68, can make regulations providing for anything this Act says may or must be provided for by regulations. I mean, this is a remarkable clause. What’s been clear, Minister, through the development of the legislation: first reading, second reading—in fact, let’s go back to the exposure draft of the Natural and Built Environment Bill, back in 2022. There were a whole lot of conflicts that this legislative process was intending to resolve, or to develop legislation that would allow these conflicts to be resolved, Minister. So conflicts between protecting special places in the environment and “Hey, we need to build things. We need to build homes for people to live in. We need to develop resources like quarries so we can excavate the hard blue rock in the case of South Auckland and North Auckland so that we can build the roads, so that we can make the concrete blocks, so we can build the subdivisions and build our cities.”

In Auckland alone, between half a million and a million people are expected to come to our great city between now and 2050. That’s according to population projections that the Auckland Unitary Plan provides for. So Minister, given that the bills—the Natural and Built Environment Bill and this Spatial Planning Bill—have deferred the resolution of conflicts between the natural environment, between, apparently, the interests of mana whenua in each region, and people who want to build things and get on with life. It’s deferred the resolution of all of those conflicts to a national planning framework and then maybe Ministry of Business, Innovation and Employment plans, and then of course, spatial plans made under this bill, where these conflicts appear still not to be resolved; they appear to have been kicked for touch. So Minister, would you care to elaborate on what recommendations of the Minister, made under clause 68(1): “The Governor-General may, by order in council”—“may”. What regulations provide for anything this Act says “may” or “may be” provided for, and how the information might be set out in an implementation plan? Because as with everything that this bill has delivered, it hasn’t appeared to resolve conflicts. It’d be very interesting to hear the Minister’s interpretation of how this clause may be interpreted and how it might help to resolve conflicts.

Well, of course, there is some conflict resolution within the purpose of the Act, which is in a different part, which we’ve had in a different debate. I’d say in terms of the specific question around clause 68(1) and providing for anything in this Act, we’ve already discussed that there can be regulations for the type of evidence used, and I would think that wording is a fairly standard one.

I move, That the question be now put.

The question is that the Minister’s tabled amendment to clause 62 and amendments to Part 3 set out on Supplementary Order Paper 390 be agreed to.

The question is that the Minister’s amendments to Schedule 2 set out in Supplementary Order Paper 390 be agreed to.