In this edition

2011: The year that's been and the year ahead
With Rugby World Cup mania and the election now behind us, most New Zealanders have their sights set on summer - Christmas merriment, beaches, barbeques and a new year in the making. Before the whirlwind that has been 2011 comes to an end, we take a quick look back at some interesting developments in New Zealand's resource management law arena over the past year and the recent UN Climate Change meeting in Durban, South Africa. We also forecast what might be on the agenda going forward into 2012, with a new government and a new year. more

Auckland Earthquake Policy building “blacklist”
Auckland Council's Earthquake-Prone, Dangerous and Insanitary Buildings Policy 2011-2016 was made operative on 24 November 2011. more

Check before you chop
Auckland Council has finally revealed its plans for trees on private land throughout the Super City. Interestingly, it has moved to both add a number of notable trees to the existing schedules in the various plans and to also retain a large number of the general tree protection rules that were set for the chop. more

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With Rugby World Cup mania and the election now behind us, most New Zealanders have their sights set on summer - Christmas merriment, beaches, barbeques and a new year in the making. Before the whirlwind that has been 2011 comes to an end, we take a quick look back at some interesting developments in New Zealand's resource management law arena over the past year. We also forecast what might be on the agenda going forward into 2012, with a new government and a new year.

Christchurch is emerging from a devastating 14 months with all eyes on the future. Geotechnical reporting has tentatively "ok-ed" rebuilding in the CBD and CERA (the Canterbury Earthquake Recovery Authority) has been proactive in managing the many facets of the recovery effort, including being involved in plans to provide low-cost sections to homeless red-zone residents. The Christchurch City Council is set to adopt its Draft Central City Recovery Plan which will provide the framework to guide the re-development of the Central City. Perhaps the biggest challenge ahead lies in convincing investors and commercial interests to re-invest and re-establish in Christchurch rather than elsewhere.

Also Christchurch focused, Minister for the Environment Nick Smith is advocating change to the RMA to more effectively address natural hazards. He is critical of processes under the RMA because in many of the red-zoned areas of the city, subdivision consents were granted in the 1990s despite the land being clearly identified as subject to liquefaction hazards. Whether this consenting was a failure of the RMA itself, or a failure of the local authorities involved in its application, was not discussed. These changes are proposed to be part of the Government's wider Phase 2 amendments planned for next year.

In October, the Government established a technical advisory group ("TAG") to review the principles (sections 6 and 7) of the RMA as part of the Phase 2 reforms. The TAG is to report back in February 2012. It will be interesting to see what recommendations the TAG makes, particularly whether it takes onboard Nick Smith's concerns in relation to natural hazards and whether it seeks to address increasing concerns over fresh water management.

Further north, the new Auckland Council is paving the way for more widespread integrated Council management. The Mercer Quality of Living Survey ranked Auckland 3rd behind European cities Zurich and Vienna. Given the success of Auckland and its restructure, whispers are about that Wellington and maybe Christchurch will be next to super-size their cities. Act and National have supported the idea of one unitary plan for each region and may provide the propulsion for legislative action on this issue.

With Auckland Council hearings on the Draft Auckland Plan (also known as the Spatial Plan) nearing a close, the expectation is that the Plan will be adopted early next year. The role of the Plan under the RMA is still uncertain, with some confusion over whether the Plan must be "given effect to" or "have regard to" by other Auckland Council planning documents. Auckland Council is strongly advocating legislative amendment to ensure other planning documents are required to effect to the new Auckland Plan.

If you are planning on swimming in New Zealand's rivers this summer - maybe think again. After 18 months of investigation the New Zealand Conservation Authority (which advises the Conservation Department and Minister) has released a paper titled "Protecting New Zealand's Rivers". The Paper is critical of the current water quality of many primary rivers, some of which are at a level unsafe to swim in, and demands immediate action before it is too late. The report calls for a system of protected rivers, likened to our network of national parks and reserves, and the selection and nomination of a singular government agency to be responsible for river protection. The Government is underway with their "fresh start for fresh water" programme but Conservation Minister Kate Wilkinson really only stated the obvious in commenting that tackling water quality and better protecting waterways were big issues. Yet again it is unclear who will pay for the baseline monitoring let alone the clean-up costs and the flow on costs to the dairy industry which forms such a vital part of our economy.

We are yet to see what actions New Zealand will take in the aftermath of the UN Framework Convention on Climate Change recently held in Durban, South Africa. There are talks of a framework agreement involving the three largest international polluters - China, India and the United States, all of which have not been involved in the Kyoto Protocol. There is also a suggestion that Canada will be the first nation to renounce the Kyoto Protocol, justifying this by saying that the protocol cannot work without the buy-in of China and the United States. On the home front, John Key has stated that New Zealand will abide by a new global climate change deal, but will wait and see what commitments are made by other countries before signing up New Zealand. On a more internal note, National are intending to further slow down implementation of the emissions trading scheme next year - while this may be a relief for the agricultural industry who are set to come under the scheme commencing compulsory reporting in 2012, it may not help the plummeting price of Emissions Units on the New Zealand market.

Finally, post Rena and Pike River it will be interesting to see whether there is significantly increased opposition to both deep sea drilling and mining in New Zealand. The fall-out from this type of national disaster and the more recent gas scare at Huntly East Mine could be marked.

Environmentally speaking, New Zealand has had to roll with the punches this year and yet, despite numerous disasters, the country is leaving 2011 on a pretty positive note as Rugby World Cup winners, earthquake survivors, oil-soaked penguin savers and super-city dwellers. Nice work Kiwis.

Auckland Council's Earthquake-Prone, Dangerous and Insanitary Buildings Policy 2011-2016 was made operative on 24 November 2011. We reported on the draft policy in an earlier newsletter which can be viewed here. Given the implications of this policy for property owners in the region, it is somewhat surprising that the draft policy attracted such a small number of submissions: only 36 submissions were received and only ten submitters requested to be heard.

The only substantial amendment to the draft policy was that the timeframe for strengthening Importance Level 2 buildings has been reduced from 30 years to 20 years. Importance Level 2 buildings covers most buildings in the Auckland Region (ie those buildings that do not have a post disaster function (Importance Level 4) and those which do not house people in crowds or contain contents of high value to the community (Importance Level 3)). It appears that Auckland Council has assessed all Importance Level 4 and 3 buildings. However, the list of Level 2 buildings is incomplete and the number of buildings in this category is currently unknown.

The Council officer who reported to the Council on the final draft policy highlighted the potential difficulties associated with managing the earthquake risk information. Those properties which fall considerably short of the current 34% standard potentially face significant upgrading costs, insurability issues and perceived safety issues. The reporting officer recommended that the Council refrain from any proactive publishing of any summary lists of buildings deemed to be earthquake-prone to the general public.  He noted that any large scale reporting on the matter needs to be carefully guided by experts to balance the need for keeping the public informed, but not generating "unreasonable panic". In reality, however, the information will be publicly available on individual property records and can also be requested under the Local Government Official Information and Meetings Act.

This is unlikely to be the last we hear of the Earthquake Policy. The magnitude of the cost associated with the building upgrades which need to occur over the next 20 or so years is still not fully known. Certainly, for many buildings constructed prior to the Napier earthquake in 1931, the strengthening costs could be extremely high, or even so high as to be prohibitive. Following fast on the heels of the leaky building saga, this is not the news property owners in the Auckland region might have wished for this Christmas.

Auckland Council has finally revealed its plans for trees on private land throughout the Super City. Interestingly, it has moved to both add a number of notable trees to the existing schedules in the various plans and also to retain a large number of the general tree protection rules that were set for the chop.

The Resource Management (Simplifying and Streamlining) Amendment Act 2009 introduced restrictions on the types of tree protection rules that territorial authorities can include in district plans. The intention was to remove the "general" tree protection rules that create the need for numerous minor resource consent applications for felling, removal and trimming of trees in Auckland.

While this seemed drastic at the time, and some thought it would result in an open attack on trees on private land, the limited exceptions in the Act have ultimately hindered Parliament's intent of loosening restrictions on the tree protection rules. This is because the rules are saved if they apply to a tree or group of trees specifically identified in the plan, located in a reserve or subject to a conservation management plan or strategy. This led the former Waitakere City Council and North Shore City Council (supported by the Auckland Regional Council) to seek a declaration as to whether some rules in their district plans were saved, and would continue to apply from 1 January 2012.

The Environment Court issued its decision on the declaration earlier this year. The Court considered the scope of the phrase "a tree or group of trees...specifically identified in the plan", and found it went well beyond what anyone had anticipated. The Judge surprisingly determined that the following trees were "specifically identified" in a district plan and would therefore have continued protection after 1 January 2012:

• A cluster of trees identified precisely by location (usually by street address and/or legal description);
• All trees of one or more named species in a defined area or zone;
• All trees in a class with defined characteristics in a defined area or zone;
• All trees in a named ecosystem (usually natural rather than artificial) or habitat or landscape (unit) or ecotone.

In reliance on this outcome, the Auckland Council has now reviewed all the "general" rules in its various District Plans and decided which are "specific" enough to be saved. The upshot is that the formerly "general" tree protection rules will be retained across large areas of the City, and not revoked on 1 January 2012 as Parliament intended.  A summary list of the revoked rules can be viewed here.

In addition, the Council has publically notified numerous plan changes and added a significant number of notable trees to schedules in the plans. On 13 December 2011 the Environment Court granted an application by Auckland Council for the proposed rules to have legal effect from 1 January 2011. It is unclear whether the Court was aware that, in fact, most of the general tree protection rules were going to be retained when making this order on an ex parte basis.

Despite Parliament's intention to remove the general tree protection rules, and reduce the protection given to trees, it appears the opposite has occurred. Not only are the general tree protection rules being retained across a large part of the Super City, but a significant number of trees are also proposed to be added to the Schedules of Notable Trees. The Council's actions have resulted in more onerous restrictions than before the 2009 amendments were introduced.

As the Council has advised, "check before you chop", because while the 2009 amendments were intended to create a less arduous and more efficient process in relation to the felling, removing and trimming of trees in urban environments, in reality the majority of blanket tree protection rules have remained.

 

© Russell McVeagh 2011. All rights reserved. www.russellmcveagh.com