Royal Commission - Auckland Governance Inquiry
Late last year the Government announced an independent inquiry into Auckland governance issues. The Royal Commission on Auckland Governance, chaired by the Hon Peter Salmon QC, together with Dame Margaret Bazley (who recently served as a Commissioner on the Inquiry into Police Conduct) and David Shand (who chaired the Local Government Rates Inquiry), was formed in October 2007 under Order in Council.
The Terms of Reference require the Commission to consider the local governance arrangements for Auckland in order to provide for the region's current and future well-being and the region's contribution to wider national objectives and outcomes. The Commission may delve into, among other matters, any changes to legislation, changes to the region's boundaries, arrangements between central and local government, institutional arrangements, and governance and representations arrangements.
The Commission received more than 3000 submissions in April this year and public hearings on the submission have now closed. The Commission's deadline is tight: it must report back to Government by 1 December 2008.
The Commission has many tough questions to consider. For example, should the rural areas of Auckland to the North and South be carved off? What about a Lord Mayor? What will happen to community boards? Do we need seven district or city councils?
Of interest were the submissions made by the region's city and district councils and the Auckland Regional Council ("ARC"). ARC submitted that it should be abolished and a single Greater Auckland Authority established, which would be supported by about 30 community councils. Auckland City Council also advocated for a single Greater Auckland Council which would control neighbourhood boards with few selected powers.
Manukau City Council suggested a model with three city councils (northern, central and south) and an overarching Greater Auckland Council. Waitakere City Council preferred a similar model, which would see it take over the Rodney District and some of Auckland City. North Shore City Council sought to essentially retain the status quo of seven councils under a regional council.
At the hearing, Chairman Salmon criticised the Manukau, Waitakere and North Shore City Councils for not putting the region's interests ahead of their own, by appearing to promote their own territories "wav[ing] little flags" saying "we are the best".
Franklin District Council sought to be included in the Waikato region because the district is currently split between two regions and, due to its rural nature, Franklin would be better served in the Waikato region. Papakura District Council submitted that it wanted to remain a separate council as it felt it was small enough in size to be accessible but large enough to be sustainable. Rodney District Council sought to abolish ARC and create a regional forum, an organisation to deal with regional environmental issues, and various region wide "commercially accountable" infrastructure organisations for transport, sewage, water supply and energy. Rodney also sought for the existing city and district councils to remain intact and own and control the proposed regional infrastructure organisations.
Overall, the bulk of submissions seek change to Auckland's governance structures, and it is likely the Commission will recommend some change. A strong theme of "one voice" for Auckland has emerged, with the adoption of simplified governance structures and the creation of a completely new regional organisation. This system would ensure a strong voice for the region as a whole, providing leadership and strong policy and strategy for the region.
Whatever the recommended changes are, the Commission must also consider any necessary transitional arrangements. New Zealand's last major local government reform occurred twenty years ago. The transition was overseen by the five member National Transition Commission chaired by former Governor-General Sir David Beattie, and including a former Government Minister, an ex-Mayor, a local government officer, and a union representative. The Government maintained a strong link with the Commission. Local Transitional Commissions, assisted by the National Commission, implemented the move to the new system in their regions and were discharged on the first meeting of the council of the new local authority. In the end, not all of the intended reforms were implemented. However, with a high level of Government support and financial investment, a significant amount of change occurred over a relatively short period.
Drawing lessons from this experience and other overseas examples, and noting the reality of Auckland's local politics, having incumbent officials and local politicians leading Auckland's transition is less likely to produce real change, and may frustrate some of the desired benefits. Many submissions to the Royal Commission stressed the need for new local authority entities to be established, with a new vision for Auckland - not merely recycling the existing authorities. As demonstrated in various councils' submissions, existing local authorities may also be tempted to protect their "patch" through this process, at the expense of the region's interests.
Transition duties could involve establishing elements of the new structure, hiring key executives and officials, recommending any legislative change, advising on remuneration, asset transfers, and so on. An independent transitional Commission of inspirational thinkers and leaders should be appointed, who will take a fresh, holistic view of the region and do their best to give life to the new local authority arrangements.
Of course, existing executives and Mayors will need to play some role in any transition. They are valuable sources of knowledge, and the transitional Commission should consult them as and when required. However, incumbents should be the servants of the process, not dictate it.
After all, the Royal Commission's work isn't about telling existing councils to sort themselves out. It is about delivering a world-class city and new vision going forward for Aucklanders. In a brief span of time, the newly formed organisations must capture the imagination of Aucklanders and articulate this new vision. An independent transitional Committee can best deliver on those goals.
Land Transport Management Reform: New Zealand Transport Agency
The Land Transport Management Amendment Act came into force on 1 August 2008. The Amendment Act addresses issues that have been highlighted by a number of reviews into the land transport sector, and implements a new approach to land transport management, funding and planning.
Under the Amendment Act, Land Transport New Zealand and Transit New Zealand have been amalgamated into a single Crown entity called the New Zealand Transport Agency. Amalgamation is intended to achieve more integrated decision-making and better accountability, as well as facilitating the transition to a new funding and planning system. The Board for the New Zealand Transport Agency has been announced, and Geoff Dangerfield appointed as CEO. Click here for a full list of Board members.
New funding arrangements are introduced by the Amendment Act. Fuel excise taxes will be ring-fenced exclusively for land transport activities. The Amendment Act also provides for regional fuel taxes. Regional transport committees are able to introduce regional fuel taxes of up to 10 cents per litre, with a maximum five cents of that amount available for roading projects. The Amendment Act provides for a phased maximum level of regional fuel taxes in 2009 and 2010.
The reform of land transport planning includes a move from an annual planning cycle, to a three-yearly cycle. Every three years, the Minister of Transport is to issue a Government Policy Statement. The New Zealand Transport Agency is to give effect to the Government Policy Statement when it develops and manages its three-yearly National Land Transport Programme. Regional transport committees will also prepare three-yearly regional land transport programmes that feed into the National Land Transport Programme. It is intended for the new planning cycle to increase efficiency and reduce "planning churn" experienced under the former regime.
Finally, the Amendment Act facilitates a move away from the traditional roading-centred approach to land transport management by inserting express reference to rail and coastal shipping in the purpose section of the Land Transport Management Act.
In Resource Management terms, the main implications of these reforms are that people who previously dealt with Transit New Zealand will now deal with the New Zealand Transport Agency, and there will be a new approach to land transport planning with consequential effects for land transport projects.
Landscape and Heritage at Long Bay
Introduction
The Environment Court has recently released its lengthy interim decision on the Long Bay Structure Plan case, in which the developer Landco sought to subdivide and develop its 360 ha property inland from the Long Bay Regional Park. The primarily concern in the case was what level of urban development would be sustainable behind Long Bay and Grannie's Bay within the North Shore City, and the form that such development should take. North Shore City Council ("Council") and Landco held differing opinions on the layout and contents of Structure Plan for the Long Bay site ("Site").
In its interim decision the Court carefully canvassed the key site and area specific issues, including geology, groundwater, ecosystems, terrestrial ecology, freshwater ecology, stormwater, erosion issues, marine ecosystems, the coastal environment, historic heritage, tangata whenua values, landscape and traffic and transportation. These issues are thoroughly assessed against the applicable planning document matrix in the decision (including, statutes, regional planning instruments, the New Zealand Coastal Policy Statement and the North Shore City Plan).
For the purposes of this article we have focussed on the Court's comments on Part 2 on how plan changes (etc) should be assessed by a council or a court under section 32 of the Resource Manangement Act 1991 ("RMA") and other key sections; and on Part 2 of the RMA, particularly in respect of landscape and historic heritage issues. We would be happy to discuss any of the more technical aspects of the decision with you so please contact us if you would like further information.
Section 32
Councils have a duty under s32 of the RMA to assess the necessity for including obectives, policies and rules in a plan. This assessment ensures that the costs and benefits of the proposed provisions are considered and the controls are justified. A test for this assessment was set out in the Eldamos Investments v Gisborne District Council W047/05 case.
The Court in the Long Bay decision identified a peculiarity in the drafting of the new s32 introduced by the 2003 amendments to the RMA, which is that s32 appears to only require a cost/benefit analysis for "policies, rules or methods" not objectives. In response to that peculiarity the Court in this case added to the Eldamos test by summarising the assessment requirements for objectives as follows:
- Section 32 does not require (or preclude) a local authority carrying out a cost/benefit and/or risk analysis of the objectives; but
- Each objective needs to be examined as to whether it is the most appropriate way to achieve the purpose of the Act.
Also, in the Long Bay case the Court considered the risk analysis under s32 and held that the analysis refers back to the definition of "effect" in s3 of the RMA. Section 3 includes "any potential effect of low probability which has a high potential impact", which the Court considered due to its conjunctive phrasing strongly suggests the concept of risk because the relationship between probabilities of an effect occurring, and its consequences or costs is incorporated in the definition of "risk". Therefore, the Court considered it preferable to view it as a risk assessment, in that broader sense of the term. In practice this means that the RMA requires councils to examine both the probability of an effect and its consequences or costs, as a separate and necessary step under a s32 assessment.
Part 2 of the RMA
The interim decision the Court discussed Part 2 of the RMA in relation to the Long Bay situation, in particular the role and weight to be given to sections 5 - 8 of the RMA (covering purpose and principles) and the meaning of 'naturalness'.
The Court emphasised the well settled law that section 6 - 8 matters do not automatically or necessarily veto all other considerations, and the relevant matters under those sections should not be achieved 'at all costs'. The Court held that the role of sections 6 - 8 goes further than merely informing decisions under section 5 and followed McGuire v Hastings District Council which held that those sections "direct" section 5 considerations. Other considerations (including the relative scale and degree of them, and their relative significance in the final outcome) may outweigh a section 6 - 8 matter of national importance. The Court cited several examples of classic cases where this weighing of interests resulted in section 6 - 8 matters being "beaten" by an accumulation of considerations, including: New Zealand Rail Limited v Marlborough District Council (port facility in the coastal environment); and Auckland Volcanic Cone Society Inc v Transit New Zealand, (motorway requiring excavation of an outstanding natural feature).
The Court mentioned later in its decision that the consideration of Part 2 matters is not a simple balancing test where competing interests are posed against each other, but rather that it is an exercise of weighing up all the relevant considerations.
The Court also discussed whether the RMA gives preference to natural resources or physical resources under Part 2. The Court held that there is:
an initial preference for specified natural resources over general physical resources (although of course any one or more such matters may in the end be outweighed by an accumulation of other factors) - other than physical resources which may be of national importance under section 6(e) and (f).
In terms of s6(b) with reference to outstanding national features and landscapes, the Court discussed the meaning of "natural" and endorsed a modified list of the "naturalness" criteria in Wakatipu Environment Society Incorporated v Queenstown Lakes District Council so that the list includes:
- relatively unmodified and legible physical landform and relief;
- the landscape being uncluttered by structures and/or obvious human influence;
- the presence of water (lake, river, sea);
- the presence of vegetation (especially native vegetation) and other ecological patterns.
Should one or more of the criteria be missing or somehow compromised the landscape or coastal environment is not then "non-natural" but just less natural. The Court considered that:
There is a spectrum of naturalness from a pristine natural landscape to a cityscape, and a 'cultured nature' landscape may still be an outstanding natural landscape.
The degree of naturalness goes to the weight a landscape is given in Part 2 considerations.
The Court notes that a "cultured nature" landscape is simply a natural landscape but not necessarily a pristine landscape. The Court noted that where a pristine landscape can be found (because they are rare) it must be a very natural landscape.
The Court made an interesting comment about outstanding natural landscapes stating that often it considered that the difficult issue is not if something is an outstanding natural landscape but where the outstanding natural landscape ends, and how the land neighbouring such a landscape should be devloped.
Landscape and heritage
The Court commented that there was a great deal of disagreement by the various experts who gave evidence in this case as to the landscape issues (including as to quality, character and extent of landscapes), and the list of agreed facts was matched by the list of disagreements. There was, however, agreement as to the significance of five landscape features, situated on the subject land, which were listed in a study commissioned by the Council in 1998/2002. As one would predict with such an extent of expert disagreement, the landscape issues in this case were very contentious as they went to key issues such as the location, density, and total number of residential lots at the site.
Both Landco and the Council proposed three similar Landscape Retention Areas under their respective Structure Plans, described by Landco as: a conservation area (where development was to basically be avoided), an enhancement area (where limited development would occur) and a potential future landscape enhancement area (areas generally not suitable for development which were to provide a landscape backdrop for other development).
Both Structure Plans included a Long Bay 7 zone. The purpose of the zone was for the protection of "historic heritage landscape" where any building would be discretionary with a focus on limiting historic heritage damage. Landco's description of the 7 Zone differed from the Council's particularly because it provided for both heritage and recreation, and was smaller in size. The Landco proposal saw this area retained as a public open space containing a single community facility with residential and all other activities being non-complying.
In this case the heritage experts all agreed that the layering of historic occupation of the headland at Long Bay may be unique to New Zealand and is highly significant at district, regional and national levels. Such layering includes pre-European Maori occupation, early colonial and settler occupation of the 19th Century, and 20th Century occupation including occupation related to World War II.
On the evidence the Court found that there were three areas large enough to be described as landscapes: the cityscape (including the two schools and the residential enclave); the marine reserve area of the Hauraki Gulf and adjacent area of the Coast; and the house/pasture/bush area landscape of Okura (and possibly parts of Long Bay). Ultimately, the Court held on the evidence that all the land on the site (except the urban part) had a natural character in terms of s6(a) of the RMA.
In terms of the Structure Plans, the Court generally preferred a modified form of the Council's Structure Plan as it held that it better achieved the purposes of the RMA. The Court considered that it better provided for appropriate scale of development in or near the Hauraki Gulf / Long Bay outstanding natural landscape and better provided for historic heritage.
The Court considered that both Structure Plans failed to recognise and properly provide for the relationship of Maori with their ancestral ties and cultural heritage. Also, the Court found that both Plans failed to give sufficient weight to relevant matters of national importance, particularly: preserving the natural character of the coastal environment and protecting it, and the historic heritage of the relevant ridge, from inappropriate subdivision and development; the relationship with Iwi with their ancestral sites; and preserving the cultural or cultivated natural character of the coastal environment (and outstanding natural landscape) of the two relevant ridges and a spur.
Through the Court's weighing up of the relevant considerations (including landscape, natural character and historic heritage) it held, based on the finding of the facts and its predictions, that the factors of national importance in this case do make development inappropriate in the specified locations. The Court consequently modified the preferred Structure Plan by drawing a heritage protection area ("HPA") boundary line to include and protect such areas. The Court amended an already enlarged Long Bay 7 zone area by including the HPA and an adjoining area within the zone.
The interim decision concluded with the parties being directed by the Court to submit an agreed draft Structure Plan and a final version of the Land Use Strategy based on the Court's findings in the decision during 2008 and early 2009.
An Update On Reverse Sensitivity And Restrictive Covenants
Two recent decisions have confirmed the relevance of "no complaints" covenants in addressing reverse sensitivity effects. The decision of the Environment Court in Ngatarawa Development Trust Limited v Hastings District Council provides a useful overview of recent law on the matter of reverse sensitivity effects, and in that regard discussed the operation and effects of no-complaints covenants. However, the Court in Ngatarawa noted, at the time that decision was given (April 2008), that no-complaints covenants "had not been tested under battle conditions". In May of this year, South Pacific Tyres NZ Ltd v Powerland (NZ) Ltd provided those battle conditions, where the High Court was asked to consider the legal status and implications of no-complaints covenants.
Ngatarawa Development Trust Limited v Hastings District Council (Environment Court, Napier, W017/2008, Thompson J, 15 April 2008).
This case concerned Ngatarawa Development Trust Limited's ("Trust") proposed 95 lot residential subdivision, which was to be located adjacent to agricultural and horticultural blocks (including a blueberry growing operations) and the Hastings Aerodrome ("Aerodrome"). Both the subdivision and the proposed residential land use were non-complying activities under the Hastings District Plan.
While the Aerodrome had provided its written approval to the application, some of its members (on an individual basis) and users opposed the application as well as the blueberry growing operators next door. One of the key concerns was the potential for reverse sensitivity effects to result from residential activities located in close proximity to the Aerodrome and the agricultural activities.
The primary concern of those opposed to the subdivision was that the location of 95 residential lots in close proximity to the Aerodrome would lead to a level of complaint that it would be politically irresistible and that the Aerodrome would be unable to continue to operate at its current levels. Given that the Aerodrome is a regionally significant asset and it is practicably unable to locate elsewhere, it was submitted that the consent to allow this residential subdivision should be overturned.
Unlike many other airports around New Zealand, there are no noise contours contained in the Hasting District Plan, and as such it was unclear where the 55dBA noise contour line would fall. The 55dBA contour line is often adopted as an "outer control boundary", with residential activities allowed outside that line, but with restrictions within.
The Trust recognised the potential for adverse noise effects as a result of the location of the subdivision, and to that end proposed that the placement of no complaints covenants on the titles of the subdivided lots would be a condition of consent. The proposed no complaint covenant (essentially a restrictive convent) provided that a purchaser of a property in the subdivision would be contractually required not to complain about, or take any enforcement action against, any adverse noise adverse effects emanating from the adjacent Aerodrome or agricultural activities.
Judge Thompson found that such covenants must meet the Newbury tests, in that such a covenant must:
- be for resource management purposes;
- be fairly and reasonably relate to the development authorised by the consent to which it is attached; and
- not be unreasonable, in the sense that no reasonable authority could have imposed it.
Additionally, as recognised in the Ports of Auckland Limited v Auckland City Council case, such a condition may also not be imposed on an unwilling party. Here, as Judge Thompson pointed out, the Trust volunteered such a condition, and so there would be no issue of imposition of such a condition and a prospective purchaser would be aware of the covenant as it would be recorded on the certificate of title and make their decision to purchase or not accordingly.
The Court did recognise that no-complaints covenants do not address the primary effects of an activity and opined that such covenants were not a "panacea for reverse sensitivity issues":
… all they really mean is: If you complain, we don’t have to listen, and there are issues about such covenants which have not, to our knowledge, been tested under battle conditions. We are not to be understood as agreeing that they are a panacea for reverse sensitivity issues.
On the basis of the evidence before it, the Court declined to grant the resource consents sought. The Court found that the totality of adverse effects were significantly more than minor; with reverse sensitivity concerns contributing to that assessment.
Although the Ngatarawa case was not decided solely on the basis of the potential reverse-sensitivity effects arising from the application, it sends a clear message that, while no-complaints covenants are a useful measure to address secondary adverse effects and are a useful mitigation measure, they are not a complete answer to reverse sensitivity issues and will not necessarily sway the consent authority's overall broad judgment in favour of an application.
South Pacific Tyres NZ Ltd v Powerland (NZ) Ltd (High Court, Wellington, CIV 2008-485-427, Gendall AJ, 16 May 2008)
This case was an application for summary judgement in the High Court brought by South Pacific Tyres NZ Ltd ("South Pacific") who sought specific performance in respect of Powerland's agreement to register a no-complaints covenant against its land in consideration for South Pacific's written approval to Powerland's application for subdivision consent.
Powerland wished to develop its "business industrial" zoned land in Upper Hutt in the Wellington region for residential purposes. South Pacific, who owned the the neighbouring property and carried out a tyre manufacturing business was prepared to give its written consent to the development on the basis that Powerland enter into a no complaints covenant with South Pacific.
The relevant terms of the covenant provided that:
- South Pacific may carry on its operations and activities (including any existing use rights and activities authorised under the Resource Management Act 1991 ("RMA") and the district plan) without interference or restraint from Powerland.
- Powerland will not bring any proceedings for damages.
- Powerland will make no complaint or submission or rejection relating to the effects of the use of South Pacific's land.
- Powerland will not make or lodge, or be party to, or finance nor contribute to the cost of any submission, application, proceeding (either under the RMA or otherwise) restricting or prohibiting the current or future uses of South Pacific's land, including any action to modify the current or future uses.
Powerland executed the covenant on the same day that South Pacific consented to Powerland's resource consent application, which was subsequently granted. Two days later, however, Powerland indicated to South Pacific that it intended to unilaterally cancel the covenant, and within a week had laid a complaint with Upper Hutt City Council about noise created by South Pacific. South Pacific then bought these proceedings seeking that Powerland be made to specifically perform its obligation to register the covenant.
Powerland submitted that the covenant was illegal under the Illegal Contracts Act 1970, as the covenant ousted the ability of Powerland from making a complaint to the Environment Court about activities which breached the RMA.
The High Court considered the discussion of the vires of such covenants in Christchurch International Airport, and stated that:
…this case provides clear authority for the proposition that persons can waive their rights and enter into "no complaints' covenants provided that the rights are not "rights which should be regarded as incapable of surrender for reasons of public policy".
The High Court cited favourably the decision of Neazor J in Rowell v Tasman District Council that:
[an] applicant, who had freely consented on an informed basis "to the imposition or an easement, was entitled to give up his rights of public participation under the RMA.
The High Court held that it too was satisfied that such covenants do not contravene the principles or provisions of the RMA. The rights to public participation under the RMA are able to be waived by an individual giving free and informed consent.
The agreement to enter into this covenant meant that Powerland directly benefited from waiving its rights of public participation, as the written approval given by South Pacific allowed Powerland to obtain resource consent to develop its land which would otherwise have not been granted.
For completeness, the High Court considered whether the rights in question were rights that could not be surrendered on the ground of public policy, ultimately finding that they cannot:
The Covenant does not allow the plaintiff to contravene the RMA or remove the possibility of RMA duties being enforced. It only precludes the defendant – and its successors in title – from so complaining. If the plaintiff contravenes the RMA, any other person can still apply for an enforcement order and/or the local authority’s enforcement officer can issue an abatement notice.
The High Court found that this right was able to be surrendered by a party, and Powerland had in fact surrendered its right by giving free and informed consent. In reaching this conclusion, the Court opined that:
- No-complaints covenants did not authorise or license contravention of the RMA, nor do they remove the Council or Environment Court's enforcement powers.
- The covenants are more akin to a settlement agreement between parties within which parties can, quite legally, waive their rights to complain by giving free and informed consent.
Conclusion
These decisions from the Environment Court and High Court confirm that no-complaints covenants are commonly used and effective tools for addressing reverse-sensitivity effects on the environment. However, the decisions also remind practitioners and managers that such covenants are not a one-stop-shop for addressing adverse effects, and will be only one factor in the Court's overall broad judgment.
Proposed National Policy Statement For Freshwater Management
The Government released the Proposed National Policy Statement on Freshwater Management ("Proposed NPS") on 23 July 2008, as part of its wider Sustainable Water Programme of Action. A Board of Inquiry has been appointed, chaired by Environment Court Judge David Sheppard, and will call for submissions at a later date. The Proposed NPS addresses both water quality and increasing demand for water.
Once finalised, regional and district planning documents must give effect to the objectives and policies contained in the NPS, with regional councils being required to notify changes to their regional policy statements within two years of the NPS coming into effect.
The Proposed NPS sets out a broad list of objectives for freshwater management. These include:
- Ensuring freshwater resources meet or exceed a swimmable standard.
- Controlling land-use development and discharges of contaminants.
- Managing social, economic and cultural demands for fresh water.
- Ensuring efficient use of allocated fresh water generally.
- Identifying tangata whenua values.
As drafted, the Proposed NPS requires regional councils to set timetables for developing freshwater quality standards and environmental flows and levels for all freshwater resources. Regional policy statements must also direct regional and district plans to effectively manage land-use development and discharges of contaminants. The Proposed NPS promotes prioritisation of water allocation for reasonably foreseeable consumptive use, and efficient water use (including through transferability of resource consents).
The Proposed NPS requires changes to regional plans and district plans. Under the Proposed NPS, regional plans must set freshwater quality standards and environmental flows and standards for all freshwater resources. Regional plans must also require that water permits contain conditions for efficient consumptive use, including industry good practice and technology, and, where appropriate, the return of water to freshwater resources. Pursuant to the Proposed NPS, district plans must require that all relevant land-use and subdivision consents contain conditions providing for protection of water quality and sustainable management of water demands.
In recent years, water management has been an extremely topical policy area at both a local and national level, with calls for the establishment of tradable water permits and the charging of resource rents. The ability of the Sustainable Water Programme of Action to adequately address water issues has been questioned; for example, questions relating to central government water policy were raised at the recent Environmental Defence Society Conference. Last October, the lack of progress on the Programme led the current Ministry for the Environment Chief Executive Paul Reynolds (at that time Assistant Director-General at the Ministry of Agriculture and Forestry) to label it "the programme of inaction" at the New Zealand Water and Wastewater Conference. Since then, there have been a number of policy developments: a National Environment Standard ("NES") for sources of human drinking water was promulgated in December last year; a NES for measurements of water takes is currently being drafted into regulation; and the Ministry for the Environment is currently seeking submissions on a proposed NES for Ecological Flows and Water Levels, which prescribes appropriate methodologies for establishing ecological flows. In addition to this, the Ministry for the Environment has indicated that consultation on the Proposed NPS will be announced shortly.
We are well placed to advise on these water issues or to assist with the preparation of a submission. Please contact us.
Wellington City Council - Town Centre Review
The Wellington City Council is currently undertaking a process of reviewing various planning policies, particularly in relation to town centres. The Council's overall approach is to provide a framework that will guide the development and management of Wellington City's centres.
To achieve this, the City Council has introduced two plan changes and a number of policy documents that aim to tighten the flexible approach of the District Plan in relation to town centres. In particular, the Council has released Plan Change 66 which allows the Council to more effectively manage the potential impacts of new retail developments within the Central Area and Suburban Centres zones and Plan Change 52 (currently at the appeal stage) which places urban design controls on retail development over 500m2 located outside of the Suburban Centres.
The Council's proposals focus on a number of key issues concerning Wellington City including:
- The promotion of a hierarchy of centres that will assist in assessing the appropriateness of proposed developments.
- The protection and enhancement of the City Centre.
- Comprehensive redevelopment of housing adjacent to town centres.
- Recognition of appropriate urban design to maintain Wellington's character areas.
It is likely that further plan changes will be introduced by the Council over the next year to address these concerns and implement the policy documents. Given the wide significance of these proposals, anyone who has an interest in the Wellington area should monitor any new development with a view to getting involved where necessary.
Auckland City Consolidated Bylaw 2008 - New Contamination Bylaw
The Auckland City Council has recently reviewed its Auckland City Consolidated Bylaw 1998, which it is required to do every 10 years in accordance with the Local Government Act 2002.
As part of that review process, the Council has introduced a new bylaw containing a new Contaminated Land and Refuse Landfill Development Control. The bylaw (found in Part 13.3 of the Consolidated Bylaw) controls the use of contaminated land by requiring a landowner or occupier to cease work when contaminated land is encountered during the course of works. Works may not recommence until the district plan requirements in relation to contaminated land are met or relevant consents are obtained. The bylaw does not relate to contaminated land that is expressly allowed as a permitted activity in the district plan, or is authorised by a land use consent or designation.
The new provisions essentially repeat the obligations required under the Resource Management Act and the relevant district plans when contaminated land is encountered during works.
Therefore, while the bylaw does not create new obligations for landowners, it expressly requires land owners and occupiers to inform the Council immediately when contaminated soil is "unexpectedly" disturbed so that the land owner or occupier can implement immediate measures to protect the health and safety of persons and the environment.
