RMA reform: How the courts helped drive NZ’s fast-track regime – Deborah Chambers
The rules and processes that grew up under the Resource Management Act, shaped heavily by judicial approach and practice, proved unequal to the scale of housing, roads, renewable generation and infrastructure New Zealand needs.
The people who actually deliver things – entrepreneurs, engineers and project developers – have a bias towards action and outcomes. The system that has grown up around them has a bias towards process. That mismatch is why a permanent fast-track regime became politically necessary.
Two recent renewable projects show the problem. Far North Solar Farm’s large solar proposal near Greytown, in Wairarapa, was referred directly to the Environment Court after a 2023 application. Hearings ran through 2024. An interim decision arrived in October 2025; final consent followed in May 2026.
More than three years, and substantial court-ordered costs running into the hundreds of thousands, on top of the parties’ own legal and expert fees and the cost of years of delay. One assumes the total burden was well into the millions of dollars.
Separately, Contact Energy’s Slopedown wind farm, 55 turbines and roughly a billion-dollar investment, was declined in March 2025 under an earlier fast-track process, largely on ecological grounds involving long-tailed bats that forage in low numbers, and other effects the design had already sought to minimise. It was later granted under the Fast-track Approvals Act 2024.
Treating low-density foraging bats, or similar local effects, as a reason to hold up projects whose point is to reduce long-term climate risk is out of kilter with the bigger picture. The cost does not stay with the developer. It flows through to higher energy prices, more expensive houses and more costly roads. Every New Zealander pays.
Not every case starts at a council. Some are referred directly to the Environment Court. Where a council decision is issued, anyone who participated at that stage can bring the matter to the Environment Court. The court then conducts a full merits rehearing. The legislation gives the court the same power, duty and discretion as the consent authority whose decision is under review. It is not confined to correcting errors.
Other courts required to rehear matters, such as appellate courts, do not routinely start again from the beginning and call fresh evidence on issues that no one is arguing about. Other courts have strict, judge-enforced processes to define the issues in advance so that evidence is confined to what is actually in dispute. Going outside that risks significant costs.
The Environment Court has not done this. Judges often prefer to see what emerges once the hearing starts, rather than force the issues to be defined first. If no one is arguing about the traffic conditions, there is no good reason to hear traffic engineers again. It is extremely unusual, costly, and often a waste of time and money.
The court has also tolerated delay and ranging beyond the issues the parties have put in contention. Some judges have vigorously pursued lines of inquiry that counsel and the parties have said are not in dispute, and have persisted despite those objections.
Judges do not personally pay the costs, so they have less skin in the game than the parties who do. They have also issued successive interim decisions rather than a single final judgment – a practice that multiplies cost and uncertainty and is unknown in other courts. They have encouraged parties to keep mediating or to “own” the conditions long after a defended hearing has begun.
The role of the judge is to get on and decide the case, not to act as a mediator. Practitioners report that even a four-day Environment Court hearing can cost each party around $1 million in professional fees. That is not sustainable for the volume of infrastructure the country requires.
Senior courts reinforced the culture. In Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, the Supreme Court rejected the long-standing “overall broad judgment” approach that had previously allowed decision-makers to weigh matters in the round under Part 2 of the RMA. Directive policies in the New Zealand Coastal Policy Statement had to be given effect to. “Avoid” meant not allow in relation to outstanding natural character and landscapes.
The decision reduced the room for enabling or balancing judgments and made subsequent decision-making more rigid, particularly in the coastal environment. It was not the only senior-court intervention that complicated plan-making and consenting, but it was a pivotal one.
Part of the difficulty is also statutory. The old RMA set a low threshold for public notification. Once notified, anyone could submit and, if unsuccessful, take the matter further. A determined lay litigant could stall a project the country needs. Applicants faced the choice of absorbing the cost, burning objectors off through process, or paying them to withdraw. Both major parties eventually concluded that allowing almost anyone to object and appeal was not right for major infrastructure. The fast track’s practical advantage is that it focuses attention on those close to the project and then forces identification of the four or five real issues in contention. Fast track processes focus on those issues and the conditions that can address them.
Lawyers and the legal approach are not well suited to delivering large-scale physical infrastructure at speed. Countries that give engineers a stronger role in decision-making – whether in Parliament, in senior administrative roles, or in the institutions that actually build things – tend to get on with the job more effectively. When you travel in places such as South Korea, the contrast is hard to miss: modern bridges, high-speed rail and dense, functional cities, built at pace while still protecting selected cultural sites. Several Asian countries have historically placed more engineers in positions of influence and have not been bound up to the same degree by a judicial and process-oriented culture.
New Zealand has a choice. We can continue to let a legal approach dominate, as has happened in the United Kingdom and elsewhere with similar, basically disastrous results for delivery, or we can give more weight to an approach that focuses on building what is needed, subject to real environmental constraints but not to the reduction of every impact to zero.
We now finally have a replacement for the Resource Management Act. The Planning Act and Natural Environment Act received royal assent last month. Transitional provisions begin on October 30. The reforms are intended to standardise rules, reduce the number of consents required, and speed up decision-making. The RMA continues in amended form during the transition and is expected to be fully repealed by around 2030.
Whether the new regime succeeds will depend on the same people who shaped the old one: judges, commissioners, planners, lawyers and council officers. They will need to apply common sense, integrity and big-picture thinking rather than focus on minutiae or the reduction of every impact to zero. If they do not, and the new system again rewards process over outcomes, Parliament will simply expand the fast track to bypass the problems the practitioners and judges create.
The fast track is an early example of a wider reaction. When courts become slow, expensive and process-driven, and when that approach is out of touch with what is needed on the ground, Parliament starts taking decisions out of the formal court system and putting them into faster, more informal channels.
If the judiciary continues to favour elaborate process over timely outcomes, that trend is likely to spread beyond infrastructure. The practical question is whether the courts will adjust, or whether more areas of decision-making will simply be moved elsewhere.
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