In this edition:

Auckland volcanoes to vest in Iwi collective - negotiations on Auckland Harbours to follow
On 12 February 2010 the Tamaki Makaurau collective iwi Nga Mana Whenua o Tamaki Makaurau signed an agreement in principle with the Crown in relation to ownership of 11 volcanic cones in the Auckland region. more ...

Fresh Water Management
The report containing recommendations of the Board of Inquiry into the Proposed National Policy Statement for Freshwater Management ("PNPS") was released on 28 January 2010 ("Report"). more ...

Viaduct Harbour Holdings Ltd v Auckland City Council
The January 2010 decision of Viaduct Harbour Holdings Ltd v Auckland City Council confirmed that section 274 is not a substitute for a party engaging in its own appeal when the party's own objectives are distinct from those of the appellant. more ...

SuperCity Update: The Third Bill
The third and final bill on the reorganisation of local governance in Auckland, the Local Government (Auckland Law Reform) Bill ("Third Bill"), is currently making its way through the public submission process, with hearings being held by the Auckland Governance Legislation Select Committee in Auckland. more ...

Knockout punch or air shot? Consideration of first instance decisions by the Environment Court
Section 290A of the Resource Management Act requires the Environment Court to have regard to the original decision that is the subject of an appeal. more ...

Forecast demand for drinking water: Auditor-General's performance audit
The Office of the Auditor-General recently conducted a performance audit of eight local authorities' plans to meet current and future demand for drinking water. more ...

On 12 February 2010 the Tamaki Makaurau collective iwi Nga Mana Whenua o Tamaki Makaurau signed an agreement in principle with the Crown in relation to ownership of 11 volcanic cones in the Auckland region.

Nga Mana Whenua o Tamaki Makaurau comprises three groups being Ngati Whatua, Tamaki and Marutuahu.  Membership includes Ngati Whatua o Orakei, Te Kawerau a Maki, Ngati Te Ata, Ngai Tai ki Tamaki, Ngati Tamaoho, Te Aki Tai, Ngati Paoa, Ngati Maru, Ngati Whanaunga and Ngati Tamatera.

Essentially, the Crown-owned parts of the following volcanic cones will be vested in Nga Mana Whenua o Tamaki Makaurau:

The volcanic cones will be held by the collective in trust and managed for the benefit of mana whenua and the people of Auckland City.  It is intended that the volcanic cones be governed by a statutory body comprising equal membership of Nga Mana Whenua o Tamaki Makaurau and the Auckland Council.

The transfer of title is subject to conditions, including:

Going forward, the Crown and Nga Mana Whenua o Tamaki Makaurau will work towards drafting a deed of settlement.  Once the deed is ratified by iwi, it will be signed by each of the parties, and then implemented through legislation. That legislation may or may not deal with other existing interests in the volcanic cones, such as existing infrastructure or easements. We will monitor further development in future editions of Carbon Copy.

Harbours and Island

Although the Agreement primarily addresses the Crown redress to the iwi collective in relation to the volcanic cones in the Auckland region, it also provides a general framework for the negotiation of redress in relation to islands and harbours in the Auckland region. It is anticipated that the negotiations concerning the harbours will involve all relevant Crown agencies as well as the Auckland Council and any other administering bodies. The negotiations will commence upon the completion of the Foreshore and Seabed Act review and the new Auckland governance arrangements are in place.

The report containing recommendations of the Board of Inquiry into the Proposed National Policy Statement for Freshwater Management ("PNPS") was released on 28 January 2010 ("Report"). 

The report proposes a number of amendments to the PNPS to ensure that national issues and goals for Freshwater Management are clearly identified and addressed.  It is intended that the focus of the PNPS will be the outcomes for freshwater management, rather than the processes for achieving those outcomes. 

In particular, the following national issues have been specifically identified by the Board of Inquiry:

• Over-allocation of fresh water.
• Contamination of fresh water.
• Loss of wetlands.
• Incompletely integrated management.

The Board has recommended that the following corresponding goals be included to  ensure that the national values of fresh water are safeguarded:

• Phase out over-allocation of fresh water.
• Phase out contamination.
• Protect wetlands.
• Improve the integration of management of fresh water.

As well as clarifying the national issues and goals for freshwater, the Board has recommended a number of amendments to the objectives and policies to ensure that there is sufficient focus on protecting water quality and quantity.  The Board preferred to use the terms fresh water (as defined in the Resource Management Act 1991 ("RMA")), freshwater ecosystems and freshwater processes, rather than freshwater resources as it felt that "resources" implies that freshwater is something to be used for economic gain.  The Board has recommended the inclusion of a general objective which sets out matters of national significance and goals and places the provisions of social, economic and cultural wellbeing as a secondary objective to the maintenance of the intrinsic values of fresh water.

The Board agreed that there should be consistency where possible with the terminology of the RMA while the PNPS should endeavour to be consistent, any duplication of matters already addressed and provided for under the RMA was unnecessary (for example monitoring and reporting requirements).

In responding to submissions, the Board of Inquiry found that a number of matters raised went beyond the scope of its mandate, or were not appropriate to be addressed in the PNPS.  These included:

• amending the boundaries of regions;
• providing for a distinction between the functions of local authorities under the RMA and executive functions they have under other legislation (eg owners or operators of water supply networks);
• co-management techniques between Maori and local government; and
• overriding existing RMA provisions relating to existing uses and activities both in terms of additional controls on existing consents and preferential treatment for renewing consents as opposed to applications for new consents.

In terms of implementation, the Board of Inquiry has recommended a new policy to allow for progressive implementation by regional councils of policies in the PNPS.  Regional councils are required to implement the policies of the PNPS by the end of 2014 unless the regional council is satisfied that it will be impracticable to do so.  If that is the case, a programme for progressive implementation may be put in place (within 18 months of the date of gazetting of the PNPS) with a completion date of no later than end of 2030.

More information on the Board of Inquiry's recommendations can be found here.

The January 2010 decision of Viaduct Harbour Holdings Ltd v Auckland City Council confirmed that section 274 is not a substitute for a party engaging in its own appeal when the party's own objectives are distinct from those of the appellant.

Wynyard Quarter (“the Quarter”) comprises approximately 35 hectares of land reclaimed between 1920 and 1940 on the foreshore of the Waitemata Harbour.  It is the site of one of the largest proposed waterfront developments in New Zealand’s history and not surprisingly is of interest to a large number of parties, often with divergent interests. 

Reflecting its historic role as a heavy industrial area, the current City Plan zoning provisions for the site provide predominantly for industrial uses such as marine services, ship repairs, fish processing, berthage and storage tanks of bulk liquids and petroleum.  Auckland City Council Proposed Plan Modifications No.4 and No.33 ("Plan Modifications") propose the redevelopment of the Quarter to provide for more intensive forms of activity, as well as open space.

In February 2009, Viaduct Harbour Holdings Limited ("VHHL") lodged its appeal against the Auckland City Council Commissioners' decision on the Plan Modifications. Kawau Island Access Organisation Inc ("KIAO") lodged an "application" to become a section 274 party to this appeal on 2 November 2009.

KIAO's application sought to persuade the Court to impose a continuous network of public open space along the coastline of the Quarter. Provision for public access along the coast had been included in the originally promulgated plan modifications but was removed in the decisions version of the provisions.

Upon a close reading of VHHL's appeal the Court concluded that neither VHHL or indeed any party had appealed against the deletion of the provisions concerning public access to the waterfront.  While VHHL sought withdrawal of the plan modifications, this general relief could not support KIAO's specific relief relating to public access to the coast. 

Judge Newhook concluded that what KIAO sought to achieve was beyond the ambit of its rights under section 274.  Unfortunately for KIAO no other entity had appealed the removal of the provisions in the decisions version, despite several submitting in favour of them initially.

There was a second fundamental barrier preventing KIAO's participation as a section 274 party. As it had not lodged a submission on the Plan Modifications it was relying on qualifying as "a person representing a relevant aspect of the public interest" under section 274(1)(d) prior to the 2009 amendments. However the name of the Society and its objectives indicated its primary interest lay in issues relating to Kawau Island as opposed to maintaining continuous public access around the coast of the mainland. The Court therefore found that KIAO was not a person representing a relevant aspect of the public interest.

This case is a reminder that lodging an original submission on a plan change that may be of interest is important to ensure the opportunity to challenge a decision on appeal is later available.  The opportunity for a party to lodge its own appeal is important both in cases where no other appellant raises similar concerns (as occurred here) and particularly following the 2009 amendments, which limited the grounds for qualifying as a section 274 party by removing the ability to rely on representing a relevant aspect of public interest.

The third and final bill on the reorganisation of local governance in Auckland, the Local Government (Auckland Law Reform) Bill ("Third Bill"), is currently making its way through the public submission process, with hearings being held by the Auckland Governance Legislation Select Committee in Auckland.

A number of themes of discontent have emerged during the submission process, including:

The speed of the legislative process and the truncated opportunity for public participation

With the introduction of the Third Bill in early December, only nine weeks (including the Christmas - New Year period) were open for written submissions to be made to the Select Committee.  Many have complained that this is scant time for the public to read and understand the specifics of a complicated Bill which, according to the Government, contains the "how" of the reorganisation.  The Human Rights Commission has gone so far as to label the consultation process "a mockery of democracy". 

The role of Council Controlled Organisations ("CCOs")

The provisions of the Third Bill allow the Auckland Transition Agency ("ATA") to propose and establish a number of CCOs (ie corporate entities, owned by the Auckland Council) to run major regional infrastructure in Auckland.  Media, and a number of individual submitters, have raised concerns over a perceived lack of accountability of these organisations and the "lock-out" of public participation in the provision of these services.  Proponents of the proposed CCO system point to the failure of the current council structure to deliver key infrastructure projects.  The Government has stood strong in its support of a new framework, and the proposed CCO structure seems likely to remain.  Further specifics around the operation of the new CCOs may, however, be introduced to the Third Bill.

Continued rejection of Maori seats and three year tenure of the Pacific and Ethnic Advisory Panels

The Third Bill makes no provision for designated Maori seats on the Auckland Council.  Instead it proposes a mana whenua board to promote cultural, economic, environmental and social issues of significance for mana whenua and Maori of Tamaki Makaurau.  The Third Bill also makes provision for Pacific and Ethnic Advisory Panels for Auckland, to identify and communicate to the Auckland Council the interests and preferences of those peoples in relation to the contents of the policies and plans of the Council, and any other matters of specific interest.  The Third Bill proposes that these Panels will be disestablished on 1 November 2013.  Concerns about a lack of continuing ethnic participation in local government in Auckland continue to be prominent and Race Relations Commissioner Joris de Bres has designated such issues amongst the top ten priorities for the Commission in 2010.

Despite these complaints and the lack of final sign-off of the Third Bill, work behind the scenes on transitional matters continues.  The ATA has undertaken public consultation on its proposed CCO structure, and the role of the new Local Boards in Auckland.  Discussion and feedback on these documents is available here.  The Local Government Commission has released its determinations on the regional and electoral boundaries of Auckland.  They are available here.  Recruitment for the new Auckland Council structure has also begun. 

The Auckland Governance Legislation Committee is not due to report back to Parliament on the Third Bill until 4 May 2010.  Enactment is likely to occur soon afterwards, leaving a maximum of six months (from that point) to implement its transitional provisions.  Accordingly, significant change to the Third Bill in response to the public submission process is unlikely.  Important tweaks to operational detail will, however, occur.  The Government will be keen to ensure that the Third Bill is as accurate and comprehensive as possible, so that Super-Auckland is up and running smoothly on day one (1 November 2010), leading into general election year 2011.

Section 290A of the RMA requires the Environment Court to have regard to the original decision that is the subject of an appeal.  Recent caselaw suggests that the Environment Court's approach is that section 290A obliges the Court to do nothing more than give genuine consideration to the council decision on appeal and it has expressed concern at "excessive reliance" by witnesses on council decisions when giving evidence in the Environment Court.

The Resource Management Amendment Act 2005 introduced the requirement that, in determining an appeal, the Environment Court must "have regard to" the decision that is the subject of the appeal.  The legislative history of this provision indicates Parliament was concerned that the Environment Court could completely ignore a decision reached by a council, which was democratically elected and accountable to an electorate. 

The phrase "have regard to" as used in a general sense was discussed in Unison Networks Ltd v Hastings District Council (High Court, Wellington, CIV 2007-485-896, 11 December 2007) where Justice Potter stated (at para 70):

The matters must be given genuine attention and thought, and such weight as is considered to be appropriate

The Court in that case made clear that no interpretation of section 290A could elevate the council decision to a factor that must be “observed” or “given effect to”.  Two cases from last year add two new dimensions to this consideration.

In HB Land Protection Society v Hastings District Council (W57/09, Environment Court, Wellington, 28 July 2009), the Environment Court restated that the provision does not create a presumption that the council's decision is correct, but requires genuine consideration to be given to it.  However, the Court went on to express the view that if the Court were to find the decision a finely balanced one, the council's decision could be given weight as an expression of informed local opinion.  This might be particularly so in a Plan Change appeal, where questions of policy are prominent.  Also the section required, impliedly at least, an explanation in the Court's decision should the Court come to a different view from the council hearing panel (at para 7).

The expectation in HB Land Protection Society for the Court to provide reasons if it reached a different view from the Council appears to be a natural justice concern, and indicates section 290A may imply a procedural requirement, but it does not alter the weight to be given to the Council decision.  In effect, it might be considered to provide an extension of the general duty for a decision-maker to provide reasons (see for example Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546; Heaney v Rodney District Council (HC, Auckland, CIV-2003-404-003480, 16 March 2004, Gendall J); Biomarine Limited v Auckland Regional Council (2007) 13 ELRNZ 1).

The second decision is Upper Clutha Environmental Society v Queenstown Lakes District Council (C108/09, Environment Court, Auckland, 13 November 2009) in which the Environment Court, after adopting the interpretation of Justice Potter in Unison Networks, went on to comment on the approach taken to consideration of the council decision by witnesses (at para 63):

To repeatedly remind the Court of the views of the first decision-maker is not only to needlessly prolong the evidence but also to misunderstand the role of the Court.

The Court's reasons as to why witnesses should not go into the council decision at length included:

• The Court hears different evidence to that heard by the Council, due to additional witnesses often being present at the Environment Court, and due to more focussed evidence as a result of key issues being identified in the course of the first instance hearing.

• Cross examination in the Environment Court allows more robust testing of evidence. 

• The composition of the hearing body is different. Council hearings may be conducted by elected councillors, community board members or independent commissioners (none necessarily with a legal background or specific expertise).

• It is possible for a proposal to change between council and Environment Court hearings.

Section 39(1) of the RMA provides local authorities with the discretion to establish a procedure that is "appropriate and fair in the circumstances".  Anyone who has been involved in council hearing processes will recognise the vast differences that can exist between the different types of hearing.

There are many examples of robust and thorough council hearing processes, often before experienced independent commissioners, including retired Environment Court or High Court Judges.  In those circumstances, where the council process has more closely resembled an Environment Court process (for example involving prior evidence exchange, questioning of the applicant by submitters via the committee, an experienced decision-making body and extensive expert evidence), then there is a more powerful case to be made for the council decision to be given greater weight. 

The 2009 RMA amendments recognised the substantial costs and delays associated with consenting processes.  One initiative of those amendments was the introduction of the process of direct referral of resource consent applications to the Environment Court (sections 87C to 87I).  Given the Environment Court's clear directive that first instance decisions are of limited weight and the new option of seeking direct referral, applicants may increasingly make use of the direct referral process to avoid a council hearing process for controversial projects.

Given the Court's comments in Upper Clutha Environmental Society v Queenstown Lakes District Council, witnesses and legal counsel appearing in the Environment Court may refer to the council decision to the extent that it assists the Court in discharging its obligation to give the decision attention and thought.  However, excessive reliance is unhelpful, potentially prolongs hearings and misunderstands the Environment Court's role to consider a matter with an open mind and reach its own decision. 

The Office of the Auditor-General recently conducted a performance audit of eight local authorities' plans to meet current and future demand for drinking water.  The audit identified strengths and weaknesses in the management of drinking water supplies, and recommended that local authorities take a number of actions to ensure they can meet future demand.

The audit found that all eight local authorities were able to ensure security of supply at present, and were generally complying with the requirements of the relevant legislation, (including the Local Government Act 2002, RMA, Building Act 2004, Health (Drinking Water) Amendment Act 2007, National Environmental Standards for Sources of Human Drinking Water Regulations 2007, and the Proposed National Policy Statement for Freshwater Management) but that less than half were efficiently managing their drinking water supplies to meet demand for drinking water in the future.

All of the local authorities had integrated drinking water supply planning into their 2009-2019 long-term council community plans, and had budgeted capital expenditure that aligned with their main drinking water supply challenges.  However, levels of service, performance measures and targets varied across local authorities.

Ensuring security of drinking water supply into the future will depend on swift improvements in forecasting, planning, and the upgrading of water supply infrastructure.  This is particularly the case because of the challenges currently being faced, such as increased competition for access to water, the need to reduce consumption, and the costs associated with upgrading infrastructure.

Generally, the audit found that the smaller the local authority, the more limited the forecasting and the bigger the challenges faced.  Among the stand out local authorities were Tauranga City Council and Nelson City Council, while Central Otago District Council and South Taranki District Council were listed as two of the worst performers.  No Auckland local authorities formed part of the sample group, as a separate performance audit for Auckland is intended following the transition to the new Auckland Council.

The audit issued eight high-level recommendations to local authorities, which broadly encompassed:

• Improving the information available for demand forecasting.
• Preparing comprehensive demand management plans, which include sustainable development strategies.
• Using additional tools to assess and verify the reliability of demand forecasting.
• Placing more emphasis on improving the efficiency of drinking water supply systems.

The audit concludes that communities cannot be complacent about the security of future drinking water supply, and urges that we all take interest now in how local authorities manage water supplies and plan to meet demand for drinking water in the future.  The report can be accessed in full here.

© Russell McVeagh 2010. All rights reserved. www.russellmcveagh.com