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Resource Management Update – April 2019

Home Insights Resource Management Update – April 2019

In this edition:

National Planning Standards arrive: a constant solution to an unproven problem

On 5 April 2019, the Ministry for the Environment released its first set of National Planning Standards (Standards). The Standards, which were born out of the Resource Legislation Amendment Act 2017 and were the subject of public consultation in 2017 and 2018, are intended to be a tool to standardise plans and policy statements and to make them easier to prepare and use. 

The 17 Standards that have been released in this first tranche primarily address the form and functionality of plans, by prescribing the structure of, and format of chapters in, plans and policy statements as well as providing direction on zones and other spatial planning tools, standardised definitions, and noise and vibration metrics.

The timeframes for implementing the Standards vary for different councils, planning documents, and Standards – the timeframes range from one year in respect to the basic electronic accessibility and functionality requirements, to 10 years for unitary councils to adopt the Standards. 

Beyond the introduction of a more consistent structure for planning documents, the Standards that are likely to have the greatest impact for plan users are the Zone Framework and the Definitions Standards:

  • The Zone Framework Standard introduces 23 zones (four of which have been included as a result of the submissions received) and eight special purpose zones (eg airport, Māori purpose, and future urban zones).  Councils are required to create plans that only include the zones listed in the Standard. The Standard does enable councils to include additional special purpose zones in instances where the proposed land use activities or anticipated outcomes of the additional zone are significant (which may be because of the scale of the activity or the environmental benefits), and where it is impractical to both manage the activities or outcomes through another zone and a combination of spatial layers. While the Standard includes a zone description for each zone, no additional content (such as objectives, policies, or rules) is currently provided in the Standard. The intention is that councils will populate zone chapters or sections in their plans with provisions that fit the local context, but that are otherwise generally consistent with the zone description. 
  • The Definitions Standard requires councils to use the terms in the definitions list where those terms are used in their plans. However, councils are permitted to define terms that have a narrower application where required to manage specific issues and to have subcategories of definitions. A key concern with this Standard is the consequential effect that the inclusion of the standardised definitions may have on existing provisions or outcomes. While councils can make consequential amendments as a result of the new definitions, the scope of consequential changes remains unclear and the Ministry has indicated it intends to provide further guidance on this. The Ministry has indicated that it anticipates councils would chose to include the standardised definitions as part of a fuller plan review process, which would enable those definition changes and the consequential effect of those changes to be considered together through that review process.   

The Standards also include a number of additional features not previously included in the draft standards, as a direct result of the submissions received last year, including:

  • The Regional Plan and Combined Plan Standards now provide that regional and combined plans must include a coastal environment chapter (which must include a coastal marine area section) in response to widespread concern that the draft Standards failed to provide a clear 'home' for coastal marine provisions. 
  • A new Foundation Standard that contains mandatory directions that apply across the Standards, including interpretations and cross references within a plan or policy statement. 
  • The Spatial Layers Standard now clarifies to a greater degree the differences between spatial tools (between for instance, precincts and overlays), although the Standards do not provide a hierarchy of the importance of these tools in relation to one another.

The majority of the Standards include mandatory directions, meaning that councils must implement the Standards without going through a normal RMA plan change process (ie without notification, submissions and hearings). The exception to this is when councils implement the Zone Framework Standard, which offers a choice of zones, so these may require a council to initiate a plan change process. 

There is a significant amount of content for councils to work through with a series of plan reviews, and Schedule 1 plan changes are likely necessary, in particular to integrate new definitions in a way that ensures that the meaning of the original provisions are not compromised. That involves considerable time and opportunity cost for councils (and for interested parties), despite it not being clear that there are significant problems with plan feasibility arising from lack of consistency.    

Please contact one of our experts if you would like further information on the Standards.

Cameron Law and Lauren Eaton

RMA over SHA – Te Awa Lakes Special Housing Area proposal declined by Associate Minister

On 4 April 2019, Hon Jenny Salesa, Associate Minister of Housing and Urban Development, declined the recommendation by Hamilton City Council for the creation of the Te Awa Lakes Special Housing Area (SHA) at Te Rapa North, north of Hamilton. We are only aware of one previous SHA being declined at that stage.

The Te Awa Lakes SHA was first proposed by Perry Group (Perry) in October 2017, in parallel with an application for a private plan change under the RMA to rezone Perry's industrial land at Te Rapa North to enable residential and mixed-use development. Through the SHA process, Perry sought to enable the construction of over 1,000 new dwellings on land previously used for sand mining operations. 

The Council received considerable public feedback on the Te Awa Lakes SHA proposal, both in support and in opposition. The key benefit of the proposed SHA identified in this feedback was the provision of additional housing supply for Hamilton City. The majority of the opposition was from existing industrial operators located in close proximity to the proposed SHA site, who were concerned with potential reverse sensitivity effects arising from the location of residential activities within a predominantly industrial area.

Following the hearing and consideration of public feedback in June 2018, the Council recommended to the Minister that the Perry SHA be approved.

While acknowledging the benefits of SHAs generally in increasing housing supply and improving affordability, the Associate Minister declined the Council's recommendation. The Associate Minister emphasised that SHAs must be consistent with the broader land use objectives, and that this proposal was complex and highlighted issues relating to the compatibility of different land uses. These included:

  • the potential for constraints on industrial activities arising from reverse sensitivity effects associated with the location of incompatible land uses; and
  • the SHA would result in an isolated residential enclave with no provision for adequate transport infrastructure or community facilities.

Ultimately, the Associate Minister concluded that the complexity and potential significance of the effects associated with the SHA would be more appropriately considered and addressed through the plan change process under the RMA. 

The Associate Minister's decision highlights the potential for conflict between the need to increase housing supply (and enhance affordability) and the importance of preserving the ability of lawfully established industrial or infrastructure activities to continue and develop. These tensions have historically been addressed through the RMA plan change and resource consent processes, and are also likely to come to the fore when the draft bill for the establishment of the Housing and Urban Development Authority is introduced to Parliament later this year.

Disclosure – Russell McVeagh acted for Fonterra Limited and Port of Auckland in providing feedback on the proposed SHA.

Daniel Minhinnick and Tom Atkins

The Parliamentary Commissioner presents a case for radical change to the ETS

This March, the Parliamentary Commissioner for the Environment released a report (available here) recommending a re-think of the way New Zealand considers climate change targets and policies. The report suggests that forestry credits should only be used to offset biological emissions (such as methane from cows), while carbon emissions (such as car exhausts) should be brought to zero without any reliance on forestry. 

The Commissioner's report represents a significant break from traditional thinking on climate change policy. Implementing it would require fundamental changes to New Zealand's Emissions Trading Scheme (ETS) and a reframing of our 2050 emission reduction targets. At present, farmers are excluded from the ETS altogether and all emitters have access to carbon credits. The Commissioner's report would not only introduce farmers to the scheme, it would also allow them exclusive access to the only offsetting mechanism available to industry – carbon credits.

The thinking behind the Commissioner's report is that New Zealand runs the risk of over-relying on forestry (a vulnerable resource) to meet its climate change targets, all the while delaying progress on meaningful reductions to CO2 emissions. The Nelson fires in February this year add weight to the Commissioner's report. They have highlighted the vulnerability of pine forests to heightened temperatures and periods of drought, both of which are more likely as a result of climate change.

The Commissioner wishes to step away from the premise that all greenhouse gas sources and sinks are fully substitutable. The Commissioner points out that forest fires undo much of the climate benefit that forest sinks represent. He also notes that the warming effects of methane emissions are relatively short-lived, while carbon dioxide emissions have a warming effect for centuries to millennia. 

The Commissioner warns that "a single target including all sources and sinks renders the temperature outcomes of climate policies uncertain." 

Instead, the Commissioner advocates for separate targets for each group which "reflect the risks their concentrations and warming effects pose." He recommends that New Zealand should strive to reduce all fossil fuel emissions to zero by the second half of the century without any reliance on carbon credits, which is very ambitious and probably unrealistic. He also recommends that methane emissions be reduced, but does not specify by how much. Given he would provide farmers with exclusive access to forestry credits, we can assume it would not be by a lot.   

National party spokespeople and Federated Farmers have endorsed the Commissioner's report, but the Minister for Climate Change has indicated that the Government will not be looking to implement its recommendations. The Minister thanked the Commissioner for the Report and accepted his reasoning in the long-term, but committed to retaining the use of forestry offsets for both carbon dioxide and other greenhouse gas emissions.

The Zero Carbon Bill is expected to be introduced to Parliament by mid-year. At present, it is unclear whether it will apply equally to agricultural and carbon emissions. While the Commissioner's report is likely to fuel the argument for the exclusion of agriculture from the goal of net zero by 2050, the report may also be used to bolster claims that agriculture should be brought within the ETS. The Report is unlikely to have any material impact on the Bill's initial drafting but we foresee it being used as ammunition by both sides of the house once the Zero Carbon Act is introduced.  

Allison Arthur-Young and Kristen Gunnell

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