Resource Management Update – December 2017

Home Insights Resource Management Update – December 2017

Contributed by:

Contributed by: Allison Arthur-Young, Bronwyn Carruthers, Daniel Minhinnick, Cameron Law, Simon Pilkinton, Michael Doesburg and Lauren Eaton.

Published on:

Published on: December 08, 2017


In this edition:

Auckland's Plan and how to pay for it

Mayor Phil Goff has released his Mayoral Proposal for Auckland Council's 2018 – 2028 Long Term Plan (Council's 10-year budget). The Mayor's Proposal comes hot on the heels of the Auckland Council Planning Committee's approval of the draft of the revised Auckland Plan. Both of these documents will drive Auckland's future growth and development and will be open for public submissions in early 2018.

Revised Auckland Plan

The Auckland Plan is a spatial plan required under the Local Government (Auckland Council) Amendment Act 2010 to direct Auckland's growth over the next 30 years. The revised Auckland Plan will replace the first Auckland Plan, adopted in 2012.

The draft of the revised Auckland Plan runs to almost 300 pages, with the Auckland Development Strategy at its heart. The Development Strategy will provide the strategic direction for Auckland's anticipated growth. In particular, it will set out the existing and future urban areas where growth will occur, including how growth will be sequenced over the 30-year life of the Plan and will be enabled by current and planned infrastructure.

The revised Auckland Plan, once finalised, will be a critical document in future RMA processes in Auckland. It will be a key driver of future plan changes to Unitary Plan, including Council-initiated and private plan changes to "live zone" future urban areas. It will also be relevant for the assessment of future resource consent applications.

Mayor's Budget Proposal

Every three years, Auckland Council is required to prepare a LTP, which is Council's budget for the next 10 years. This week, Mayor Goff set out his priorities for the LTP in his Mayoral Proposal.

The Mayor's priorities are investment in transport infrastructure, improving housing affordability and increasing water quality in Auckland's streams and beaches. Capital expenditure of $11-$12 billion on transport infrastructure is proposed, with $7 billion earmarked for investment in water infrastructure (primarily wastewater and stormwater).

Mayor Goff proposes to fund the Council's activities through a mix of mechanisms:

  • Rates rises (at an average of 2.5% in the first two years and 3.5% thereafter);
  • Auckland-wide targeted rates for improving Auckland's water quality and natural environment; and
  • A regional fuel tax of 10c per litre (plus 1.5c per litre in GST), supported by Central Government, to assist with funding Auckland's future transport infrastructure.

The next step is for the Council, along with Local Boards and other stakeholders, to develop a proposed LTP for public submissions. This will go to the Governing Body for approval on 7 February 2018.

Please get in touch with one of our experts if you would like any further information on the implications of the revised Auckland Plan, the LTP or the upcoming submission processes.

Allison Arthur-Young & Simon Pilkinton 

Auckland Unitary Plan update: we're finished – quick, fix it!

The majority of appeals filed against the Unitary Plan in both the Environment and High Courts have now been resolved, settled, withdrawn or dismissed, with corresponding sections of the Plan becoming operative. A small number of proceedings are outstanding in the Environment and High Courts; therefore, the Plan still has the catchy title "Auckland Unitary Plan: Operative in Part" – a summary of the status of all appeals can be found here.

With much of the Plan operative, Auckland Council has begun amending and tidying the Plan, most notably through its proposed Plan Change 4 – Corrections to technical errors and anomalies. The Council has so far proposed six plan changes, and further plan changes are expected to follow. These plan changes are likely to affect a number of properties across the region, so it is important to review and consider any changes and lodge submissions if appropriate.

As mentioned in our April update, under the Resource Management Act 1991, the Council has discretion to decline to process requests for private plan changes for the first two years after the relevant provisions became operative. The Auckland Council Planning Committee has adopted a number of criteria that it will take into account when considering whether to accept private plan change requests during this two-year period. In addition to the usual criteria in clause 25 of the First Schedule to the RMA, the Committee will also consider whether the outcomes of any plan change:

  • align with the Future Urban Land Supply Strategy;
  • give effect to the Auckland Plan;
  • follow Appendix 1 – Structure Plan Guidelines of the Auckland Unitary Plan for any structure planning related plan change; and
  • give effect to the environmental outcomes expected and effectiveness of the Auckland Unitary Plan.

One private plan change has been notified so far (Plan Change 6 (Private) – Auranga B1 Drury West), with two more accepted last week. Further plan changes are expected in the New Year.

Please let us know if you require assistance with any Unitary Plan issues or would like to discuss how the contents of this article could affect your project or business.

Cameron Law & Michael Doesburg

A new Government and a new policy statement for freshwater management?

In our November update, we considered what reforms may be in store for the RMA under the new Government. The management of New Zealand's freshwater resources was also a hot topic during the election campaign and, like the RMA, here too we can expect a range of reforms over the next three years.  

Labour's controversial proposal for a freshwater "resource rental" did not make it past its coalition negotiations with NZ First. However, the parties' Coalition Agreement makes a commitment to "increase water quality standards for urban and rural areas using measurements that take into account seasonal differences."

Labour's Confidence and Supply Agreement with the Greens contains similar commitments to:

  • improve water quality through stronger regulatory instruments;
  • increase funding for freshwater enhancement;
  • wind down government support for irrigation; and
  • provide assistance to the agricultural sector to improve water quality.

The agreements between the three parties in Government do not specify how these broad commitments to improve freshwater quality will be achieved via regulatory reform. However, a close review of Labour's 2017 Policy Manifesto provides some significant insights into the reforms that we might expect over the coming three years.  

The most significant change on the cards is a new National Policy Statement for Freshwater Management (NPSFM). Labour has proposed to replace the NPSFM 2014 with a new NPS based on the "Sheppard version", proposed in 2010 by the Board of Inquiry on freshwater management chaired by former Environment Judge Sheppard. The Sheppard version contains strong directives for phasing out over-allocation and contamination, which were substantially "watered down" by the previous Government when it adopted the first NPSFM in 2011.

Any new NPS will bring with it considerable challenges. Regional Councils across the country are already working hard with key stakeholders to give effect to the NPSFM 2014 in their regional plans. A new NPS will mean yet more rounds of plan review and changes.

Labour also proposes to strengthen enforcement to achieve improvements in water quality. Funding is proposed for MfE or the EPA to prosecute non-compliance with regional plans and resource consents through local Crown solicitors. Under Labour's proposal, Regional Councils, currently tasked with enforcement, will instead be tasked with improving their monitoring, with annual reporting obligations to MfE regarding the protection of waterways and improvements in water quality. Regional Councils themselves are also proposed to be subject to an annual audit as to whether they are discharging their responsibilities to manage freshwater resources within their regions.

Daniel Minhinnick & Simon Pilkinton

Declarations with wider implications:
NZ Building and Projects Ltd v Auckland Council

In NZ Building and Projects Ltd v Auckland Council [2017] NZEnvC 175, the Environment Court considered a number of declarations in relation to two dwellings on a site within the High Aircraft Noise Area in the Auckland Unitary Plan Aircraft Noise Overlay. Although the declarations focused squarely on the legality of the two dwellings, the Court's decision has wider implications for the interpretation of the RMA's provisions that determine the activity status of consent applications.

Amongst a range of other declarations, the applicants sought a declaration that their consent application to demolish the existing building at the front of the site and construct a new dwelling was accepted by Auckland Council before the relevant rule of the Unitary Plan, which prohibits new dwellings in the High Aircraft Noise Area, became operative. As such, the applicants argued that their application fell to be processed as a discretionary activity under section 87B of the RMA. The applicants lodged their consent application on 26 August 2016, approximately three weeks before this rule became operative under section 86F of the RMA.

The Court's finding turned on the interpretation of the relationship between sections 87B (prohibited activities in a proposed plan to be treated as discretionary) and 88A (activity status "freezes" at the date an application for consent is first lodged). In considering the interplay between these two sections, the Court found that the reference in section 88A to applications being treated as discretionary under section 87B was indicative of Parliament's intention that these provisions be read alongside one another. The Court held that if an application for consent for a particular activity is decided after a proposed rule prohibiting that activity is made operative, section 88A "freezes" the discretionary activity status of that application pursuant to section 87B.

The Court acknowledged the limitation placed on section 88A by section 86F, which provides that a rule in a proposed plan must be treated as operative (and any previous equivalent rule inoperative) if the time for submissions or appeals on that rule has expired and all submissions have been dealt with. However, the Court considered that discretionary activity status under section 87B must prevail over any district plan rules (whether operative or proposed), as that status is provided for by the RMA as the enabling statute.

The Court also pointed to a number of practical difficulties that would arise were section 87B not to operate in this way. This included limitations on the ability of the Environment Court to determine appeals on applications for discretionary activities that become prohibited where a proposed rule becomes operative before the appeal is determined.

In our view, the Court's decision strikes a considered balance between the recognition of the respective roles of sections 86F, 87B and 88A in determining the activity status of consent applications, and the need to ensure consistency and coherency in the application of key provisions of the RMA.

While the Court acknowledged that "it is at least odd drafting to have two shield provisions in the RMA when one would surely suffice", it considered that any untidiness in drafting was simply the result of the piecemeal approach taken to RMA reform in recent years, rather than an intention to have those provisions operating inconsistently in the same circumstances.

Disclosure: Russell McVeagh acted for Auckland Airport, as a section 274 party, in these proceedings.

Allison Arthur-Young & Lauren Eaton

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