On Tuesday afternoon, the Local Government and Environment Select Committee reported back on submissions to the Resource Management (Simplifying and Streamlining) Amendment Bill.
Key issues arising from the Select Committee's report include the following recommendations:
- Retain provisions limiting involvement of, and imposing potential penalties on, trade competitors in planning processes.
- Make significant changes to the notification provisions, but retain the reversal of the presumption of notification, to a presumption of non-notification unless effects are more than minor.
- Amendment the Bill to reinstate further submissions on a limited basis, and subject to a tight time-frame for lodging further submissions.
- Reinstate the ability to appeal plans, plan changes and policy statements on the "merits" rather than being limited to points of law.
- Make significant changes to the call-in and direct referral provisions, but retain the thrust of the provisions in the Bill.
- Defer any change in decision making for notices of requirement.
Click here to view a fuller summary of the Select Committee's report which is included in Russell McVeagh's RMA Reform Report.
A copy of the Select Committee's report, including recommended amendments to the Bill, can be view on Parliament's website.
Last week, the Infrastructure Bill ("Bill") was introduced to Parliament. The purpose of the Bill is to progress a broad suite of amendments, across several Acts, to facilitate infrastructure development by removing unnecessary barriers and improving the consistency of regulatory arrangements.
The Bill is primarily a response to:
- utility operators' concerns that local authorities are inconsistent in their application of “reasonable conditions” to the exercise of statutory access rights of access to roads; and
- local authority allegations of poor quality reinstatement of roads by utility operators.
The proposed solution is to make utility legislation consistent, where appropriate, and to provide a legislated process to give legal status to a stakeholder-created code for managing access to roads, motorways, and rail corridors, and a regulated code if considered necessary.
It is hoped that, while some parties may face increased compliance and resource costs, benefits will arise from a more certain regulatory environment for investment decisions, and the improvement in the management and co-ordination of utility works in roads, rail, and motorways.
Proposed Amendments
The Bill proposes substantive amendments to eight Acts, including:
- the Telecommunications Act 2001, the Electricity Act 1992, the Gas Act 1992, and the Local Government Act 1974 - to provide for consistent provisions around reasonable conditions of access to corridors, allocation of costs when utility operators are required to move assets, and time periods for notification and response (see Part 2 of the Bill).
- The Railways Act 2005 and the Government Roading Powers Act 1989 - to provide for timeframes for responding to requests for access to rail corridors and motorways, and to require controlling authorities to publish criteria on which they will base decisions to grant access (see Part 2 of the Bill); and
- The New Zealand Railways Corporation Act 1981 - to remove statutory restrictions that negatively affect the running of the New Zealand Railway Corporation’s ("NZRC") business, including normalising the treatment of directors and streamlining arrangements for changes to NZRC’s capital. The Bill also removes the requirement to annually provide the Minister with a programme of capital works, removes the limit on how much NZRC can spend in one year and permits NZRC to effect insurance cover for, or give an indemnity to, a director or employee (see Part 3 of the Bill).
The Bill also proposes to repeal the Affordable Housing: Enabling Territorial Authorities Act 2008 ("AHETA"). AHETA was intended to provide councils with regulatory tools to address problems of housing affordability in their district. However, many developers and territorial authorities have raised concerns that the Act is counter-productive and likely to reduce, rather than increase, the supply of affordable housing. In order to address the obstacle that restrictive covenants represent to social housing within newly developed communities, a modified version of the prohibition on certain restrictive covenants currently contained in section 30 of AHETA is being inserted into the Property Law Act 2007.
National Code on Access to Corridors
In Part 1, the Bill introduces a framework for the establishment of a national Code of Practice to govern the way in which utility operators and corridor managers co-ordinate their activities ("Code"). This Part proposes an obligation on all utility operators and corridor managers to comply with the Code, unless parties otherwise agree. The obligation is backed by the ability of a court to order compliance with the Code, and to impose a fine if that court order is not complied with.
A draft Code can be prepared by any person, so as to allow development by industry participants, but it must meet certain requirements before it can be approved by the Minister, ie the Code must reflect broad agreement between stakeholders and must contain the method by which any statutory criteria are to be applied. A Code approved by the Minister will be a deemed regulation. Where there is no Code that meets the requirements for approval, the Minister may issue a Code in the form of regulations.
It is intended that the Bill will ultimately be divided at into two Bills, with Part 1 and the Schedule becoming the Utilities Access Bill, and Parts 2 to 4 remaining as the Infrastructure Bill. It is intended that the Utilities Access Bill be enacted this year. The Bill is yet to progress to the select committee and submissions have not been called for yet.
RMA Phase II reforms update - Aquaculture Technical Advisory Group
The first work stream identified in the Phase II reforms relates to developing greater direction for central Government in respect of improved management for aquaculture. Such reform is a high priority for the Government due to the commercial potential of the industry. The work stream will review existing aquaculture legislation to identify possible improvements to the regulatory regime, and it is hoped that an Aquaculture Reform Bill will be ready for introduction in late 2009.
The Government has now announced the appointment of the Aquaculture Technical Advisory Group ("TAG") and their terms of reference. The members of the TAG are:
- Hon Doug Kidd (Chair): a former Minister of Fisheries and Maori Affairs and current member of the Waitangi Tribunal;
- Dennis Bush-King: Environment and Planning Manager at Tasman District Council and member of the Resource Management Review Phase I TAG;
- Mike Burrell: Chief Executive of Aquaculture New Zealand, the industry body for the aquaculture sector;
- Kirsty Woods: Manager of Fisheries Policy and Development for Te Ohu Kaimoana, who has worked on aquaculture reform since 2001 and on the Maori commercial aquaculture settlement since 2005;
- Nici Gibbs: Policy Manager of the New Zealand Seafood Industry Council Ltd with over 20 years' policy and resource management experience in central government, regional government and the private sector;
- Mark Farnsworth: Chair of the Northland Regional Council and a member of the Local Government New Zealand National Council; and
- Keir Volkerling: Iwi Development/Resource Management Consultant with extensive experience and knowledge in iwi fisheries and aquaculture issues.
The broad functions of the TAG are to generate proposals for reform of aquaculture legislation, review any advice or proposals Ministers may choose to provide, and report directly to the Ministers through written recommendations where required.
The TAG will report to Ministers by the end of September 2009, who will then report back to Cabinet by the end of November with recommendations for improving the aquaculture regime.
Ombudsman allows possible contaminated sites to be identified
The Ombudsman recently made a finding in relation to the availability of information regarding contaminated land in the Hawke's Bay area. The finding was in respect of a complaint made to the Omudsman against the Hawke's Bay Regional Council ("Council") under the Local Government Official Information and Meetings Act 1987 ("LGOIMA"). The complaint arose because the Council refused to release details of 3099 "Unverified HAIL" sites in the Hawkes Bay Region.
The HAIL is a record of activities and industries that are known to have the potential to cause land contamination as a result of the use, storage, or disposal of hazardous substances. Sites that are classified as "Unverified HAIL" are sites which appear on the HAIL but whose relevant land-use history (and possible contaminated or uncontaminated status) have not yet been confirmed by the Council.
The Ombudsman reviewed the Council's decision and the LGOIMA, finally concluding that it was in the public interest to make the information available. This decision was based on a variety of grounds. Under section 7(2)(b)(ii) of the LGOIMA the Omudsman considered whether making the information available would unreasonably prejudice the commercial position of the person who supplied or who is the subject of the information. He concluded that only those who were in the business of dealing in land could fall within this section, and that disclosure of the list would not result in unreasonable harm to the commercial position of those people.
The Ombudsman also held that it was not necessary to withhold the information to protect the privacy of natural persons under section 7(2)(a) of the LGOIMA. Even though the Privacy Commissioner held that there was a considerable privacy interest in the HAIL list, the Ombudsman felt that the benefit in withholding the information was outweighed by other considerations. These included the tentative and evolving nature of the information, the fact that the Ministry for the Environment in its guidelines recommend that all land-use information be provided on LIMs/PIMs, and that the information is available from the Council under specific information requests in any event. Also relevant was that, unless owners and potential purchasers know to check for HAIL information, the availability of information on a site-specific basis was not adequate to address this issue.
The finding emphasised the importance of releasing the information in conjunction with a contextual statement which would provide further information on the status of information in the "Unverified HAIL", other categories used to describe land contamination, and information of the Council's investigation process. The Government has commented that it expects other councils to follow suit and allow the public to see if sites are potentially contaminated.
On 10 August 2009, Ministers Dr Nick Smith and Tim Groser announced an emissions reduction target range of 10% to 20% below 1990 levels by 2020. The target was also tabled at the recent round of international climate change negotiations in Germany. It signals New Zealand's commitment to a successful outcome from the United Nations climate change conference to be held in Copenhagen in December.
A decision on the target range was made after weighing up environmental and social factors, economic implications, international relations aspects and taking into account the results of public consultation. According to Dr Smith the target is an ambitious but achievable goals: New Zealand's gross emissions are currently 24% above 1990 levels.
It is intended that New Zealand will meet its 2020 target through a mixture of domestic emission reductions, the storage of carbon in forests, and the purchase of emission reductions from other countries.
The most significant cost increase for the industry as a result of the target will be increases in petrol and electricity.
New Zealand has attached conditions to the target:
- the global agreement sets the world on a pathway to limit temperature rise to not more than 2ºC;
- developed countries make comparable efforts to those of New Zealand;
- advanced and major emitting developing countries take action fully commensurate with their respective capabilities;
- there is an effective set of rules for land use, land-use change and forestry; and
- there is full recourse to a broad and efficient international carbon market.
Overall the Ministers are of the opinion that the target range reflects a fair contribution by New Zealand to the international effort to reduce greenhouse gas emissions.
Protection of the Hauraki Gulf Marine Park
Almost ten years on from the enactment of the Hauraki Gulf Marine Part Act 2000, it is evident that, while teething problems have occurred, the Act remains an important legislative control over the use of the Hauraki Gulf. Over the past 10 years both councils and the Courts have struggled with the application of the Act generally, and in particular the tension between the different management objectives, which range from the protection and enhancement of the environment to the maintenance of the resources of the Gulf (which contribute to recreation and enjoyment).
In response to growing uncertainty, the Hauraki Gulf Forum (established by the Act to facilitate the management and conservation of the Gulf), has published a useful and readable explanatory document titled Governing the Gulf - Giving effect to the Hauraki Gulf Marine Park Act through Policies and Plans. The Guide sets out in clear terms how the Act can be given practical application in policies and plans produced by Councils, and explains the interrelation between the Act and the Resource Manangement Act 1991 ("RMA"). While the Guide is an effective explanatory document, it remains to be seen over the coming months how councils, Courts and other interested parties will utilise the Guide in the management and use of the Hauraki Gulf. Click here for copy of the Guide.
Independent Panel's review of the Waikato co-management arrangements
On 23 July 2009 the Independent Panel ("Panel") reviewing proposed Waikato River co-management arrangements released its report. The Panel was appointed to review the proposed co-management arrangements for the Waikato River contained in a Deed of Settlement by the Crown with Waikato-Tainui, signed on 22 August 2008.
The intended co-management arrangements are focused on restoring and protecting the health and well being of the Waikato River. The report evaluates whether the current co-management arrangements meet the objectives of the deed and intended agreements with Waikato iwi. The panel comprised of Evan Williams (chair), Barry Harris, Guy Salmon, Gordon Blake, Jamie Ferguson and Paul Majurey.
Vision and Strategy for the Waikato River
The Vision and Strategy is the primary co-management instrument. The vision and strategy contains objectives relating mainly to the future of the Waikato River and the health and wellbeing of the river.
The Panel recommended that the Vision and Strategy should:
- take account of the whole Waikato river (including the Waipa catchment);
- eventually have the status of a National Policy Statement under the RMA; and
- have the status of a Statement of General Policy under Conservation legislation.
Guardians of the Waikato River
The deed of settlement provided for five new co-management entities. However, the Panel recommended that the "Guardians of the Waikato River" be the sole co-management entity, and the lead agency for river and catchment issues in the region. This entity is to be comprised of equal Crown-Maori representation and is to be Crown funded. The Guardians are also responsible for:
- the content of the vision and strategy, including standards;
- administering the clean-up fund;
- promulgation of national environmental standards relevant to the health and wellbeing of the river; and
- appropriate compliance and enforcement powers.
Interestingly, the Panel also recommended that the:
- Ministers should clarify the rules of engagement and funding (if any) for Environment Waikato ("EW") and Territorial Local Authorities; and
- Proposed structures be implemented despite potential uncertainty in the RMA reform process (for example, if the reform process produces an Environmental Protection Agency that assumes all or part of the role of EW in this context).
While the Panel consulted with affected parties in the Waikato region, there are still outstanding concerns with the proposed recommendations, primarily in respect of the single governing body (the Guardians) and the large area that the settlement is intended to cover (the catchment includes large portions of agricultural land). The Government is yet to comment on the report.
Indigenous People's Legal Water Forum
On 27 July 2009 the Indigenous People's Legal Water Forum ("Forum") was held in Wellington. The purpose of the forum was to explore the rights of indigenous people to be involved in the governance of freshwater. The forum attracted speakers from New Zealand, Australia and Canada. There were also a wide range of participants including current Members of Parliament, iwi leaders and practising solicitors. The forum was chaired by Justice Joe Williams of the High Court.
The forum highlighted the importance of water for all New Zealanders and the need to provide an appropriate legal framework for the various groups who hold rights to water. The current New Zealand situation was examined, with examples from Waikato (the Waikato-Tanui settlement of the Waikato River) and the South Island (Ngai Tahu). Australian and Canadian perspectives were also presented, highlighting that indigenous people across the world have had varying degrees of success when attempting to assert rights over water.
The Forum concluded with a session on the possibilities of new agreements and new rights. Jucinta Ruru (Otago University) asserted that the doctrine of native title applies to water and that the New Zealand Government has not yet clearly extinguished Maori rights to water. While many disagree, it is important to note that the issue of Maori rights to water has not yet been directly considered by a Court in New Zealand, so the potential for litigation in this area still remains.
The key areas to watch in the coming months are:
- The release of the National Policy Statement for freshwater management (submissions on the proposed statement closed in January).
- The possibility of Maori rights in freshwater being tested by the Courts, and the reaction from Central Government to any finding on the issue.
- The enactment of the Waikato-Tainui settlement of the Waikato River into legislation.
- Other iwi looking to the Waikato-Tainui settlement for a co-management precedent.
Notice of Requirement trumps Retirement Village resource consent
The Environment Court released its final decision on Villages of NZ (Mt Wellington) Ltd v Auckland City Council (A56/09) on 21 July 2009. The Court's interim decision was released in March 2009 and confirmed the designation subject to the Council addressing some traffic effects and some other minor issues. The decision provides some useful comments on matters that are relevant to notices of requirement generally.
The case concerned a notice of requirement by Auckland City Council for a 2.9ha lot in Mt Wellington. The Council proposed to create a park on the land to help meet the shortfall of playing fields for winter sport in the Mt Wellington / East Auckland area. The site selected by the Council is currently vacant; however, it is subject to an unimplemented resource consent for a retirement village for up to 242 residents.
Requiring Authority's Objectives
In its interim decision the Court recognised that there was some variation between the objectives for the public work given in the notice of requirement and those presented by the council's planning witness. While the Court accepted that the additional matters presented in the evidence generally aligned with and validated the objectives in the notice of requirement, the Court highlighted that the Council "speaks through its resolutions" rather than its counsel or witnesses and that the Court places a great deal of importance on identifying a requiring authority's objectives for the purpose of performing its functions under section 171(1)(c) of the RMA.
Effects on the environment
The Court went on to consider whether, in assessing the notice of requirement, the future environment included the retirement village for which consent had been granted in accordance with the test set out in Queenstown Lakes District Council v Hawthorn [2006] NZRMA 424. Hawthorn recognised that granted, but unimplemented, resource consents could form part of the future environment against which a proposal should be assessed, "where it appears likely" that those resource consents will be implemented. The Court agreed that the test set out in Hawthorn applies to notices of requirement, but found in this case that the retirement village consents were not likely to be implemented if the notice of requirement was confirmed, and therefore did not form part of the future environment against which the notice of requirement should be assessment. The decision in that way recognises that designations will ultimately overrule other consented activities.
Alternatives
The appellants argued that the Council had not given adequate consideration to alternative sites and methods, and identified one site in particular on an adjoining street. However, the Court restated the well known principle that an assessment of alternatives does not require a requiring authority to consider all options, and it not bound to select the 'best' option. In this case, the Court accepted that the Council had undertaken an assessment which was more than cursory (except in relation to traffic effects), but that this was not fatal to the notice of requirement. It was reasonable for the Council to discount the alternative site proposed by the appellant as it would require purchasing land from between three to eight owners - some of whom had already built on their land.
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