The Environmental Protection Authority opens for business
On 1 October 2009 the new Environmental Protection Authority ("EPA"), a product of the Government's recent Resource Manangement Act 1991 ("RMA") reforms, came into being. The EPA is a distinct statutory office that operates from within the Ministry for the Environment.
The EPA's initial responsibilities will be receiving and processing applications of national significance, which will be fast-tracked through a streamlined version of the usual RMA process, and its current incarnation will therefore resemble more of an administrative body than a protection authority. However, greater responsibilities are likely to arise as a result of further reforms of the RMA. Although an expanded role for the EPA is still a matter of speculation, it may extend to duties relating to Hazardous Substances, the Exclusive Economic Zone, the Emissions Trading Scheme, and possibly water allocation.
The initial functions of the EPA include:
- receiving and processing applications for proposals of natural significance:
- making recommendations to the Minister on the applications received; and
- providing secretarial and support services to Boards of Inquiry appointed to determine applications.
In deciding whether an application is a matter of national significance, the Minister must have regard to the factors in s142(3); namely whether it will involve:
- widespread public concern or interest;
- significant use of natural and physical resources;
- a structure, feature, place, or area of national significance;
- New Zealand's international obligations to the global environment;
- irreversible changes to the environment (including the global environment);
- technology, processes, or methods that are new to New Zealand and that may affect its environment;
- section 8 matters;
- the Crown's public health, welfare, security, or safety obligations or functions;
- more than one region or district or;
- a network utility operation that extends or is proposed to extend to more than 1 district or region.
The EPA's role in recommending a course of action to the Minister will also take into account an assessment of the completeness of the application. The recommendation of the EPA will be published, although ultimately the discretion of the Minister as to how to treat applications is wide.
The assessment of completeness of applications will be significant, as the timeframes for processing matters of national importance are tight. The EPA is already emphasising the need for applicants to contact them prior to lodging an application, and to ensure ongoing contact post-lodgement, so that the EPA and applicant are able to work collaboratively to ensure the process is smooth and timeframes are met. The EPA has also indicated that it intends to involve the expertise of relevant councils in the new processes where that input will be helpful.
For further information contact us, or view the EPA's website at http://www.epa.govt.nz
Public Works Offer Back Bill update
The Public Works (Offer Back of and Compensation for Acquired Land) Amendment Bill ("Bill"), which proposes changes to the Public Works Act 1891 ("PWA"), is currently being considered by the Local Government and Environment Select Committee ("Committee").
The Committee heard submissions on the Private Member's Bill in the first half of August. One of the most highly contested changes in the Bill is the proposed amendment to section 40 of the PWA. This amendment would require the Crown or any other entity holding land acquired und the PWA to offer to sell land acquired under the PWA to the person who it acquired the land from (or their successor) if the land is no longer required for the original public work for which it was acquired.
Under the current PWA, the land is required to be offered back if it:
- is no longer required for that public work; and
- is not required for any other public work; and
- is not required for any exchange under section 105 of the PWA.
In addition, the Chief Executive of the relevant entity currently retains some discretion not to "offer back" the land where it would be impracticable, unreasonable, or unfair to do so. The Bill would remove this discretionary element.
The result of this amendment, if passed, is that parties holding land for the purpose of a public work may be required to offer back land held under the PWA if it is no longer required for the original purpose for which it was required, even if it was being used for some other public purpose. This could have far-reaching implications throughout the country.
Many submitters to the Committee were opposed to the suggested changes as well as to the general policy behind the Bill. Particular concerns outlined were confusion around the term "original public work" and cost and uncertainty around the proposed changes. Some submitters thought changes would be better placed within a wider review of the PWA.
The Committee is due to report back to the House on 17 December 2009.
Bayswater Marina Holdings Limited Vs NSCC - Reclamations of the CMA
The recent High Court decision in Bayswater Marina Holdings Limited v North Shore City Council has confirmed that conditions of deemed coastal permits do not continue to apply once land has been reclaimed and a s245 certificate has issued.
Background to High Court decision
Bayswater Marina is located on the Waitemata Harbour in Auckland. Various planning consents authorising the construction of the marina and reclamation of the foreshore and seabed were granted under the Town and Country Planning Act 1977 and Harbours Act 1950 prior to the RMA coming into force.
Those consents imposed conditions that went beyond the scope of the work to be undertaken to carry out the reclamation, and included provisions relating to landscaping and public open space on the reclamation itself. In particular, the conditions required that, upon completion of construction of the reclamation, the public would have full rights of access to the main reclamation area.
The permits eventually became deemed coastal permits under s384A of the RMA. This meant that the conditions of the various approvals under the Town and Country Planning Act and Harbours Act became equivalent to conditions of consent on a coastal permit under the RMA.
After an occupation consent was granted under the RMA, which completed the suite of approvals needed, work finally commenced. In 2001, a s245 certificate (which incorporated the boundary of the reclaimed land into the jurisdiction of the territorial authority) was granted for the reclaimed area. This meant that all the land above the mean high water springs ("MWHS") became land governed by the relevant territorial authority (in this case, North Shore City Council), rather than coastal land under the jurisdiction of the Auckland Regional Council.
High Court appeal
The High Court appeal lodged by Bayswater Marina Holdings Limited ("Bayswater") queried whether the deemed coastal permit conditions still applied to the reclamation once the reclaimed land came under the jurisdiction of the territorial authority under s245. The appeal was pursued largely because the Environment Court had embarked on its decision making process (concerning the zoning provisions that should apply to the reclaimed land) on the basis that the conditions in the coastal permits did apply. Bayswater considered that after the s245 certificate had been issued, only the North Shore City Council had ongoing jurisdiction over the reclamation and the Auckland Regional Council (and the Minister of Conservation) had jurisdiction below MHWS only. By contrast, the ARC contended that any changes to the parking and public access arrangements on the completed reclamation would need to be by way of an application to the ARC to vary the conditions of the earlier deemed coastal permits.
On the question of law, the High Court supported Bayswater's interpretation and held, following Northland Port Corporation (NZ) Ltd v Whangarei District Council, that "once reclamation of former foreshore and seabed has risen above mean high water springs, that land is no longer within the coastal marine area, being landward of mean high water springs" and that accordingly the public access conditions applying to the reclamation no longer applied.
The reason for this is that once the reclamation is completed, and a s245 certificate has been issued, there is nothing in the Coastal Marine Area to which the conditions can continue to apply. The Court commented on the effect of s245 being designed to "bring to an end the jurisdiction of the Regional Council that existed before completion of the reclamation and to bring the reclaimed land under the control of the relevant territorial authority".
Implications of the decision
This decision has two important implications for those undertaking reclamations of the Coastal Marine Area:
- It confirms that the conditions attached to deemed coastal permits to reclaim land granted before the RMA came into force do not have ongoing force above MHWS once a s245 certificate has been issued and the land falls within the territorial authority's jurisdiction.
- While the decision relates to the transitional provisions of the RMA, which means that it will only apply directly to those reclamations that spanned the period from the prior legislative regime to the RMA regime, it may have some wider implications for reclamations approved in full under the RMA. This is because, arguably, any conditions on a coastal permit granted by a regional council (or, for a restricted coastal activity, the Minister) to reclaim land that relates in part to the end use of the reclamation, (rather than conditions attaching to a s89(2) consent granted by a territorial authority to authorise the end use of the reclamation) will not have effect once a s245 certificate is issued and the land comes within the territorial authority's jurisdiction.
Government plan to rework tenure review regime
The Government recently announced a plan for a review of the regime governing Crown Pastoral Land ("Review Plan") with the three aims of the review being to ensure: effective stewardship of the land; better economic use; and improved relationships with lessees and high country communities.
Pastoral leaseholders are generally farmers who have a 33-year lease with a perpetual right of renewal. Leaseholders may use their land for grazing, but may not subdivide or sell the land, and may not put it to other uses (such as vineyards or more intensive farming) without consent from the Commissioner of Crown Land. They can build dwellings and must live on the property (unless they apply for an exemption) and can control public access. They can sell the lease, but not the underlying land.
The process of tenure review was established by the Crown Pastoral Land Act 1998. The aim of tenure review was to develop the economic potential of leasehold land, while protecting its conservation values. Pastoral leaseholders can now apply for a tenure review through LINZ, which can lead to negotiations between the Crown and the leaseholder, resulting in some land being transferred to the Department of Conservation, and the lessee gaining freehold title to some land capable of productive use.
In January 2002, there were 303 perpetual leases covering 2.17 million hectares. By the end of March 2008, 54 of these properties had completed tenure review and four had been bought outright by the Crown, leaving 245 properties in perpetual leasehold title.
Controversy surrounding tenure review and the fairness of rents paid by high country farmers has recently come into the public spotlight as a result of the decision of the Land Valuation Tribunal in the Minaret Station Rent case (which dealt with the issue of whether or not to consider amenity values such as lake and mountain views when setting rents for high country farms).
The Review Plan confirms the Government’s commitment to implementing pastoral lease rents based on the earning capacity of a property - including the amenity values, which was the Crown's case in Minaret Station. It also rescinds the previous Labour Government’s ‘lakesides’ policy, which effectively prevented leasehold properties within five kilometres of lakes from entering into tenure review. Lakeside leases will now be considered on a case-by-case basis, with significant inherent values protected as necessary, in order to "maximise the best conservation and economic gains from each tenure review.”
As the review is a high level change in strategic direction for Government policy, there is little scope for public submission. However, members of the public can submit on individual properties undergoing the tenure review process through the LINZ website here.
Read the Report of the Parliamentary Commissioner for the Environment, Change in the high country: Environmental stewardship and tenure review here.
Public - Private Partnerships for Infrastructure Development
In early October, the National Infrastructure Unit of the Treasury released the document Guidance for Public Private Partnerships in New Zealand ("Guide").
A Public Private Partnership ("PPP") involves the Government paying a private sector party to deliver long-term infrastructure and related services. That party is usually responsible for the design, finance, construction, maintenance and, in some cases, operation of the service. The Government undertakes the initial engagement of the private sector party and makes milestone payments once operations have commenced.
PPPs are widely used in overseas jurisdictions to develop key infrastructure sooner than would otherwise be possible through usual funding routes. With the increasing interest in, and viability of, PPPs in New Zealand as well as the Government's interest in fast tracking large infrastructure projects, the Guide will be of interest to government agencies, as well as any private sector parties who may be potential bidders on these types of contracts.
The Guide provides a breakdown of the processes that are to be followed in a PPP, including business cases, project development and the bidding process. The Guide also gives direction on steps between the selection of a preferred bidder and contract execution, as well as ongoing contract management. In addition, the Guide contains framework for assessing whether a PPP is preferable over conventional procurement (such as fixed price or design & construction contracts) in any given situation.
You can read the Guidance for Public Private Partnerships in New Zealand here.
The Law Commission has released an issues paper titled "Alcohol in Our Lives", suggesting major changes to New Zealand's liquor laws, including the recommendation for an entirely new statute.
Key recommendations in the Report related to:
- supply controls;
- demand reduction; and
- problem limitation.
Submissions are sought on the paper by 30 October 2009, and the Law Commission is due to release its final report in March 2010.
Please click on the link below to view The Liquor Leaflet - Russell McVeagh's Liquor Law newsletter - which includes a fuller summary of the Law Commission's report, as well as updates on the abandoned Auckland City Council Liquor Licensing Policy and two liquor bills currently before Parliament.
http://www.russellmcveagh.com/_docs/RMLiquorLeafletSep2009.html.
Climate Change Response (Moderated Emissions Trading) Amendment Bill
Further to the update in the September edition of the Carbon Copy, there have been new developments on the Emissions Trading Scheme front. The Climate Change Response (Moderated Emissions Trading) Amendment Bill ("Bill") received its first reading on 24 September 2009 and is expected to be passed into law by December 2009 (just in time for the next major climate change conference in Copenhagen).
By way of background, the New Zealand Emissions Trading Scheme ("NZ ETS") came into force on 26 September 2008. The key purpose of the NZ ETS is to enable New Zealand to comply with its international obligations under the Kyoto Protocol and the United National Framework Convention on Climate Change. This is coupled with the Government's policy to provide certainty for economic growth and to have the flexibility to respond to possible changes in the post-2012 international climate change framework.
The Bill amends the Climate Change Response Act 2002 by modifying the NZ ETS and provides further powers to make regulations and administer the principal Act. The objectives of the Bill are to:
- reduce competitive impacts of the NZ ETS and provide greater certainty for economic growth;
- provide a smoother transition for participants into the NZ ETS and protect against price volatility in early years;
- ensure the NZ ETS is affordable within current fiscal constraints;
- maintain flexibility to respond to possible changes in post-2012 international climate change arrangements;
- maximise the degree of harmonisation with the Australian Carbon Pollution Reduction Scheme, in particular to reduce trans-Tasman competitiveness risks; and
- improve the administrative effectiveness of the NZ ETS.
It is intended that certain functions relating to the assessment and processing of individual applications for allocation will be transferred to the Environmental Protection Authority at some point, as discussed above. It is also likely that other NZ ETS administrative functions will be transferred to the Environmental Protection Authority. No changes are proposed in relation to responsibility for applications for allocation for forest land and fishing quota owners. The main measures in the Bill:
- shift the commencement of unit-surrender obligations for the liquid fossil fuels, stationary energy, and industrial processes sectors to 1 July 2010;
- provide for a transitional phase to operate from 1 July 2010 to 31 December 2012 during which time:
- participants in the liquid fossil fuels, stationary energy, and industrial processes sectors are only required to surrender 1 eligible unit for every 2 tonnes of CO2-e emitted and have an option to pay $25 in lieu of surrendering a unit in satisfaction of unit-surrender obligations; and
- the export of New Zealand units from the NZ ETS is prohibited, with the exception that the prohibition will not apply to the export of forestry-related New Zealand units;
- provide a transitional phase to operate from 1 January 2008 to 31 December 2012 during which participants in the forestry sector are required to surrender 1 eligible unit for every tonne of CO2-e emitted and have the option to pay $25 in lieu of surrendering a unit in satisfaction of unit surrender obligations;
- provide for free allocation of New Zealand units to emissions-intensive, trade-exposed industries on an intensity basis, with eligibility thresholds and phase-out rates for free allocation set at levels to reduce trans-Tasman competitiveness risks;
- delay the commencement of unit-surrender obligations for the agriculture sector until 1 January 2015;
- provide for free allocation of New Zealand units to the agriculture sector on an intensity basis;
- set the point of obligation for the agriculture sector at the processor level initially, with flexibility to move the point of obligation to the farm level in the future;
- increase free allocation of New Zealand units to the fishing sector to 90% of 2005 emissions levels for 1 July 2010 to 31 December 2012; and
- provide power to make regulations for the setting of emissions reduction targets.
Interestingly, the Maori Party has come to the Government's aid to help put the ETS in place. The Government had been negotiating with Labour to form an agreement on the ETS however with the support of the Maori party, the Government no longer needs Labour's support. The key features behind the Maori party's agreement are:
- a specific proposal to enhance the Government's energy efficiency assistance (including home heating and insulation) for low income households;
- a Treaty clause in the legislation to ensure Crown's obligations to its Treaty partner are not compromised by the ETS;
- recognition that iwi have issues with respect to deforestation provisions and their specific Treaty settlements where they have unknowingly been disadvantaged; and
- a commitment from Government to work with iwi and the Maori Party to find solutions for iwi with forests returned in Treaty settlements pre-ETS.
Various sectors of the business community are also supportive of the Bill, with Business New Zealand formally signalling its support stating the Bill will create a fairer balance between consumers, taxpayers and businesses.
Despite the fact that Labour and National are not united on this particular version of the ETS, with the support of the Maori Party, and strong support from other sectors of the community, the National Government is likely to have this Bill passed by the end of the year.
Capital reaction to the suggested "Wellington Super-city"
The establishment of the Auckland Super-City Council has sparked talks in the capital of a potential "Wellington Super-City". As was the case in Auckland, there are varying opinions on whether or not Wellington should follow in Auckland's footsteps and establish some type of "super-city" council.
Recently, Wellington Mayor Kerry Prendergast suggested that the region could become a super-city as soon as 2013. The Mayor has expressed concern that Wellington could be out-lobbied in key areas by a unitary Auckland authority. The proposal would see Wellington's eight councils reduced to between one and three. Early criticisms of the proposal are largely that councils in the Wellington region operate collectively, and have better working relationships (especially with regard to key areas such as water, environmental issues and events) than former councils in Auckland.
However, United Future's Peter Dunne is strongly in favour of moving to a combined Wellington super-city council as soon as possible. He believes that a super-city in the capital is inevitable, and that Wellington needs to start planning now so as not to become isolated and fragmented, and be unable to compete for national resources.
Local businesses are split over the proposal, highlighting that the Government needs to be cautious not to follow Auckland too closely as there are many differences between the two cities. Other key players are keen to watch how the Auckland super-city operates within its first years before they take a position on the idea.
At this stage, there is no set framework or timeline for the proposed super-city, nor has public consultation taken place. Despite this, the Mayor appears keen to get the discussions rolling as soon as possible, so it is a 'watch this space' area for now. We will continue to keep you updated.
Paraparaumu Airport - Expert evidence and Iwi consultation
Early last month the Environment Court released its interim decision approving Plan Change 73 to the Kapiti Coast District Plan, allowing for the re-development of Paraparaumu Airport. The construction of this key infrastructure is certain to enhance economic growth and employment in the area, and it is expected to be ready for commercial passenger flights within a year.
In approving the Plan Change, the Court endorsed the staged development approach put forward by the applicant, Paraparaumu Airport Limited ("PAL"), which linked the level of development to particular roading upgrades (including the topical Western Link Road).
The Court directed some very minor changes to the Plan Change put forward by PAL, in relation to the proposed noise contours and related monitoring requirements. A monitoring requirement had been agreed at mediation which provided for monitoring at both the 65dBA Ldn and 58dBA Ldn contour. The Court set aside this agreement and removed the 58dBA Ldn requirement, noting that “the exploration and resolution of other issues had made this additional monitoring requirement an impractical and expensive solution”. However, the Court directed a minor change to the noise contours to recognise the effects of helicopter noise which were key concerns for one of the appellants.
In its decision, the Court made some interesting comments on expert evidence and tangata whenua issues which reinforced some important and established principles. In particular, the Court made the following observations:
Expert Evidence: The Court was highly critical of some experts appearing for the Paraparaumu Airport Coalition ("PAC") for not being familiar with the definition of “sustainable management” in the RMA, as well as their contention that “sustainability” did not require any growth or increase in outputs. (The PAL position was that the Airport could simply continue in its current form, and there was no need for any investment to be made in upgrading the Airport's facilities, or providing an increased level of service for its users). The Court observed that: “Those contentions are simply wrong in RMA terms.” The Court also noted that manifest inadequacies and inaccuracies in one expert’s evidence, including failing to read the revised provisions of the Plan Change, meant that it could not “place any reliance on it”.
However, the Court did give considerable weight to the evidence of one member of PAC who acknowledged that he was not appearing as an expert as he could not “claim the necessary degree of objectively expected of an expert witness”. The Court felt it would be ill-advised to disregard the professional opinions of the witness on airport safety given his extensive professional experience flying at Paraparaumu. Given the contradictory evidence on airport safety, the Court adjourned the hearing to allow the Civil Aviation Authority ("CAA") to produce a third, independent, opinion. Following CAA’s evidence, the Court found that airport safety was sufficiently addressed by the Plan Change.
Consultation with tangata whenua: A consistent theme running from the application phase through to the Environment Court was whether tangata whenua concerns had been sufficiently addressed. As a submitter at the Council hearing, and later an appellant, Te Whanau a Te Ngarara raised its desire for the Airport to be returned to the original owners. At the Council hearing, the Commissioners clearly stated that ownership matters are outside the jurisdiction of a consent authority considering a plan change. On appeal, Te Ngarara extended its interest beyond ownership to include Part 2 matters. Early on in the Environment Court process, PAL sought to strike out the appeal as Part 2 matters were not raised in Te Ngarara’s original submission to Council. The Court declined to strike out the appeal as the relief sought by Te Ngarara (that the Plan Change be declined) was consistent with its earlier submission and it was entitled to change or extend its reasons for seeking that relief. In its final decision, the Court noted that, despite purporting to raise Part 2 matters, the real concern remained ownership, and that was outside the Court’s jurisdiction.
In terms of consultation with tangata whenua, the Court restated the well known principle that there is no obligation on an applicant for a private plan change to consult. However, the Court noted that the consultation undertaken with the mandated iwi authority (Te Runanga o Ati Awa ki Whakarongotai) was extensive, that PAL was correct to negotiate with them, and that it was Te Runanga’s function to seek hapu’s views and disseminate information to its constituent hapu, which include Te Ngarara.
The Court is expected to release its final decision shortly.
The Minister for Food Safety Kate Wilkinson has announced that there will be a wholesale replacement of the Food Act 1981 and the Food Hygiene Regulations 1974 that deal with food preparation and safety. A recent review of New Zealand's food regulatory regime by the New Zealand Food and Safety Authority found that the current domestic food system suffers from duplication and gaps in the law, with consequential costs for food businesses.
A Bill to modernise and improve the law has been in development for the past two years. The new Food Bill is expected to be introduced to Parliament within the next year and be in place by late 2010 or early 2011. Proposed changes include:
- provision of an enhanced imported food regime;
- mandated risk based tools and a shift in onus of responsibility from Government to food business operators;
- clarification of the New Zealand Standard for all food sold within, and exported from, New Zealand;
- providing for a national restaurant grading system; and
- improvement of penalty provisions.
The food sector has an estimated annual turnover of $22 billion and employs more than 20 percent of working New Zealanders. The industry also accounts for exports of $18 billion and this is expected to continue to grow over the next 10 years within the framework of a new Act. Local authorities will still play a dominant role in food safety, becoming a one-stop-shop for establishing food based businesses.
Wellington Planning Update
Wellington City Council has recently begun consulting on a comprehensive overhaul to the central planning framework of the city. New Proposed Plan Change 72 reviews the residential areas of Wellington, and aims to ensure Wellington's growing population has access to appropriate housing, while mitigating effects of development on existing infrastructure and the environment. Proposed Plan Change 72 also considers the special character and heritage of Wellington suburbs, promulgating design guides and rationalising character protection rules.
Proposed Plan Change 73 reviews the suburban centres rules of Wellington, and intends to strengthen the current centres-based approach to planning. The changes signal an intention to stop inappropriate development (especially large-format retail) from occurring outside of centres to ensure the continued viability of these centres in the future. New rules include design standards and amenity-enhancing requirements, and new signage and traffic effects considerations. A number of new definitions have will also be added to the Wellington District Plan. Submissions on both proposed Plan Changes close on 27 November 2009.
Wellington 2040 has also been released, and is a consultation document which aims to collate public views on the 30-year framework for Wellington's centre-city, including the waterfront. The document identifies 14 issues facing the future of Wellington, and asks for public views on each of these issues. Submissions on Wellington 2040 close on 30 November 2009.
If you are interested in Plan Changes 72 and 73, or Wellington 2040, a Russell McVeagh Planning Update is accessible here.
This publication is included in Russell McVeagh's website on the Internet:
www.russellmcveagh.com
The publication is intended only to provide a brief summary of the subjects covered. It does not constitute legal advice and should not be relied on as such without first obtaining specific professional advice based on your unique circumstances.
Russell McVeagh has New Zealand's longest established and most experienced environmental and resource management practice. We are here to work with you, and if you require any advice or further information on the matters dealt with in this publication please contact the partner/solicitor in the firm who normally advises you, or alternatively contact:
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