In this edition:
New Zealand King Salmon decision now extended to resource consents
In this case the R J Davidson Family Trust challenged the Supreme Court’s rejection of the “overall broad judgment” approach traditionally taken to the assessment of resource consent applications under s104 of the RMA. The Trust’s appeal related to an application for a 7ha mussel farm in Beatrix Bay.
In May 2016 the Environment Court, in a split decision, declined the Trust’s appeal seeking consent for a mussel farm, citing concerns regarding the cumulative impact of the proposed farm on natural character, and on the endangered King Shag. The Environment Court relied on the Supreme Court’s decision in Environmental Defence Society v New Zealand King Salmon  1 NZLR 593 to find that, because the RMA’s purpose of sustainable management and its underlying principles are increasingly particularised in lower-order planning documents, there was no requirement to refer back to Part 2 of the RMA in determining resource consent applications (absent invalidity, incompleteness, or uncertainty).
The Environment Court’s rationale was upheld by the High Court on appeal. The High Court held that the reasoning in King Salmon, which related to the provisions of proposed plans, applied equally to s104(1) with respect to resource consents. This is because the relevant provisions of the planning documents (including the NZ Coastal Policy Statement) had already given substance to the principles in Part 2.
The decision has significant implications for the legal and planning professions:
- Removing the need for resource consent decisions to be made “subject to Part 2” and on an “overall broad judgment” approach will significantly raise the importance of plan provisions and higher-order documents. This includes plans and documents promulgated prior to the Supreme Court’s clarification in King Salmon, which may provide strong direction against consent.
- The importance of careful drafting of plan provisions during plan review and change processes has increased. In particular, plan drafters will need to ensure that all aspects (both enablement and protection) of Part 2 are reflected in plan provisions, rather than relying on Part 2 to “complete the picture” when resource consent applications are assessed.
Daniel Minhinnick and Aidan Cameron
High Court decision brings intensification a step closer for Auckland
Last year, 20 proceedings (a mix of appeals and applications for judicial review) were initiated in the High Court challenging whether certain recommendations made by the Independent Hearings Panel (IHP) to Auckland Council on Unitary Plan provisions were within the “scope” of submissions received. While the IHP had the power to make out of scope recommendations, it needed to identify where it was exercising this power, as this affects parties' subsequent rights to appeal.
10 of the scope proceedings were heard as “test cases” in December. The majority involved challenges to the IHP’s decisions as to the scope provided by submissions to recommend the up-zoning of more than 29,000 residential properties across Auckland. The other proceedings concerned more discrete challenges to the scope provided by submissions for particular recommendations, including a recommendation to relocate a viewshaft and other site-specific re-zoning recommendations.
In its decision released on 13 February, the High Court dismissed all but two of the test cases, including those challenging the residential upzoning recommendations. Whata J found that, in the context of a whole plan review (as opposed to a plan change), the potential for a submission to be “on” the Unitary Plan was wide. Whata J was satisfied that the IHP’s recommendations on residential up-zoning were reasonably foreseeable and logical consequences of the submissions on the Plan, which meant those recommendations were within scope.
The two proceedings that the Court upheld were the Strand Holdings test case (which related to the relocation of the Dilworth Terraces view protection plane) and the Wallace Group test case (which concerned the rezoning of industrial land). In both cases Whata J stressed the need to ensure the fairness of the process. Greater specificity is required within a submission where its acceptance will have a disenabling effect on the development capacity of a site. The submissions at issue in these test cases were found to be insufficient to fairly put an affected party on notice as to the potential effects.
Resolution of the test cases is intended to provide guidance to those parties whose challenges on the issue of scope are yet to be heard. We anticipate that the High Court’s general endorsement of the IHP’s approach to the issue of scope will assist in resolving the remaining proceedings, without the need for a hearing in many instances.
The practical effect of the decision is to bring residential intensification in Auckland one step closer to reality. Absent any appeals of the High Court’s decision to the Court of Appeal, we expect Auckland Council to move quickly to make operative the Unitary Plan’s provisions providing for wide-spread residential intensification.
Disclosure statement – Russell McVeagh acted for Strand Holdings Ltd in these proceedings.
Allison Arthur-Young and Simon Pilkinton
A solution to the housing crisis? Government proposes new Urban Development Authorities
Public consultation has begun on the Government’s proposal to create locally-controlled urban development authorities (UDAs), which will be tasked with fast-tracking urban redevelopment and renewal in New Zealand’s cities.
A new “tool kit” of powers
The Government’s proposal would enable significant urban development projects to be planned and facilitated by publicly-controlled UDAs, with the potential for partnership with private companies or landowners. While the UDAs would not have consenting powers, a substantial “tool kit” of enabling powers is proposed, including powers to:
- assemble parcels of land, including being able to ask the Minister for Land Information to consider exercising existing compulsory acquisition powers under the Public Works Act 1981;
- override existing and proposed district and regional plan rules and use streamlined consenting processes;
- plan and build infrastructure such as roads, water pipelines and reserves;
- buy, sell and lease land and buildings; and
- borrow to fund infrastructure and levy charges to cover infrastructure costs.
As currently proposed, the Government would decide which powers from the toolkit each UDA would be able to use for particular projects. Not all powers would be available for all projects.
Have your say
Further information on the proposed legislation, including the discussion document can be found here. Submissions close on 19 May 2017.
Allison Arthur-Young and David Alley
Who decides when works on private land will prevent or hinder a designation?
A recent Environment Court case, Western Properties Ltd v Auckland Transport, concerned a successful appeal under s179 of the RMA against Auckland Transport’s (AT) decision to decline to give its approval under s176 of the RMA for proposed works on land along Great North Road that was subject to an AT designation for road widening purposes.
Western Properties was seeking to redevelop its land at the corner of Buscomb Avenue and Great North Road, Henderson to construct a new 9-storey mixed use retail, parking and residential building. Part of the property was affected by an AT road widening designation. AT declined to give its approval under s176 for works on the designated land, as it considered the works would prevent or hinder AT from undertaking road widening in the future.
AT’s decision to decline s176 consent overturned
The Court held that the jurisdiction under s179 to determine an appeal against a decision to decline s176 consent requires the Court to reach its own decision under s176 as if it was the requiring authority. AT argued unsuccessfully that the decision on the matters under s176 was for the requiring authority alone, as the body responsible for the relevant designation. The Court commented that AT’s suggestion that the jurisdiction under s179 of the RMA was so constrained as to prevent consideration by the Court of the matters in s176 “cannot be sustained on any interpretation of the legislation".
A key factor in this case was AT’s lack of certainty that it would ever require the full extent of the designated land for road widening purposes. The land along Great North Road in West Auckland was first designated in the 1960s, and no specific road widening project has ever been proposed. The approach adopted by the Court in determining the appeal required it to step in to AT’s shoes to determine AT’s requirement for the land.
This case is of interest particularly where land is subject to designations that pre-date the RMA. The Court was clear that a robust assessment of the public work protected by the designation (including its environmental effects) is required, to enable proper consideration under s176 as to whether a proposed land use will prevent or hinder that public work. These assessments will usually be readily available where a designation has been subject to the normal RMA tests.
Where s176 consent is sought for land affected by designations that pre-date the RMA, the requiring authority may need to undertake assessments, potentially akin to a notice of requirement, to determine with some certainty its requirement for the land. AT has appealed the Environment Court’s decision.
Allison Arthur-Young and Simon Pilkinton
Surprise! More roads for Auckland
Late last year, the New Zealand Transport Agency (Transport Agency) lodged with the Environmental Protection Authority its notices of requirement and resource consent applications for the East West Link (EWL) and the Auckland Northern Corridor.
The EWL will connect SH20 at Onehunga with SH1 at Mt Wellington, with the aim of providing better connections through Auckland’s critical industrial belt to rail and freight hubs. The Northern Corridor involves improvement works to provide a direct motorway-to-motorway connection between SH1 and SH18 from Albany Highway through to Constellation Drive and north to Oteha Valley Road.
The RMA approvals for the EWL and the Northern Corridor have been referred to board of inquiry processes to be completed by the end of this year. Submissions on both projects are likely to be due around the end of March 2017, based on a February/early March notification of the applications as forecast by the Transport Agency. Decisions by a board of inquiry must be made within nine months of public notification.
Bronwyn Carruthers and David Alley
Round two: EPA to hear TTR’s second iron sands mining application
Lodged with the Environmental Protection Authority (EPA) on 23 August 2016, and publically notified on 17 September 2016, TTR’s application seeks marine consents and marine discharge consents to mine iron sands in a 65 square kilometre area of seabed between 22-36 kilometres off the coast of Patea, in waters 20-42 metres deep.
This is TTR’s second application for such consents, after its first application was declined in mid-2014. Since its lodgement, the current application has been met with widespread opposition from local iwi and community organisations, and its progress has been stymied by delays and procedural wrangling.
Submission period extended
Originally scheduled to close on 14 October 2016, the public submission period has twice been extended, first to 14 November, and then to 12 December.
The initial extension was due to the complexity and quantity of information contained in the application, which necessitated an extended submission period. The second extension came after the Environment Court overturned the EPA’s decision to approve the redaction of certain information in the application on the basis of commercial sensitivity. The Environment Court was not persuaded that any prejudice to TTR’s commercial position arising from the disclosure of the redacted information outweighed the public interest in full disclosure.
By the time the submission period finally closed on 12 December, the EPA had received 13,733 submissions (around 9,000 more than it received on TTR’s first application). Although the EPA has yet to release its analysis of these submissions, we expect the vast majority are likely to be opposed to the application, with KASM, Greenpeace and iwi groups mobilising significant opposition.
The hearing commences on 7 February. A list of pre-approved questions to be asked of expert witnesses during pre-hearing conferencing and during the hearing has been released in advance.
The hearing may take up to 40 working days, meaning it is expected to conclude no later than 12 April. A decision must then be released within 20 working days of the hearing’s completion.
Bronwyn Carruthers and David Owen
RMA encroaching on Fisheries territory: Motiti Rohe Moana Trust v Bay of Plenty Regional Council
The Motiti Rohe Moana Trust has long been an active party in matters before the Environment Court relating to Motiti Island. In this case, the Trust sought a declaration that it is lawful for the Council to include objectives, policies and rules in its proposed Regional Coastal Environment Plan to avoid, limit or discourage fishing techniques or methods within specific coastal marine areas, to maintain indigenous biodiversity and recognise and provide for the relationship of Māori with the waters and taonga (including fishery species).
The key issue before the Environment Court here was the interface between the RMA and the Fisheries Act 1996, and particularly the application of s30(2) of the RMA (which seeks to prevent regional councils from controlling the taking, allocation or enhancement of fisheries resources). The Court found that the RMA and the Fisheries Act are intended to work together and it is appropriate for some overlap between the two regimes. Fishing restrictions in a regional coastal plan would only offend against s30(2) of the RMA if they met all preconditions of that section, namely that a regional authority must not:
- perform a function under s30(1)(d)(i), (ii), or (vii); where
- that function controls the taking, allocation or enhancement of fisheries; and
- is for the purpose of managing fishing or fishing resources.
In this case, the Court held that the Bay of Plenty Regional Council had the power to include controls in the Regional Coastal Environment Plan to restrict the taking of fish and fishing methods for purposes other than managing fishing or fishing resources. These purposes included maintaining and protecting indigenous biological diversity (recognised in s30(1)(ga) of the RMA) and providing for the relationship of Māori with the waters and taonga (recognised in s6(e) and 8 of the RMA).
Greater scope for councils
On the Environment Court’s approach, regional councils will have greater scope to protect marine life through regional coastal plans, which could generate gains for biodiversity and help to address environmental effects of fishing practices in the coastal marine area. However, the ruling could also increase regulatory costs for the fisheries industry and create significant uncertainty regarding what management system will apply in particular areas (or to particular species).
The Minister for Primary Industries has appealed the decision to the High Court.
Daniel Minhinnick and Aidan Cameron
Proposal to move salmon farms using rare regulations
The Ministry for Primary Industries' consultation document proposes the amendment of the operative Marlborough Sounds Resource Management Plan (Sounds Plan) to enable the relocation of up to six salmon farms from 'lower-flow' sites within the Queen Charlotte and Pelorus Sounds.
The proposal would introduce a new coastal marine zone to the Sounds Plan. In this new zone, marine farming in six identified locations shown on a map would be a restricted discretionary activity, subject to limited notification rights and detailed conditions of consent. Farming in some of the sites identified is currently prohibited under the Sounds Plan. The proposed changes would therefore 'unlock' the ability for New Zealand King Salmon, the owner of all of the six existing farms, to apply for consent to relocate them.
Rare use of power
The proposed amendments to the Sounds Plan would be introduced through regulations promulgated under s360A of the RMA, which gives the Government the ability to amend provisions in a regional coastal plan that relate to the management of aquaculture activities in the coastal marine area. Section 360A was introduced by amendments to the RMA in 2011, which fundamentally changed the consenting regime for aquaculture activities, and sought to reduce the costs, delays and uncertainties that existed with the prior regime. This is the first time the Government has proposed the use of this power.
The proposed regulations, developed through a working group that included local and central government, iwi, the aquaculture industry, and residents' groups, represent a much more streamlined approach than the existing plan change requirements under Schedule 1 of the RMA. The approach will enable much greater certainty for New Zealand King Salmon’s operations in the region, and support the industry at an important time, with the Marlborough District Council currently consulting on the aquaculture provisions of its next-generation regional coastal plan.
Have your say
Consultation on the proposed regulations (which can be found here) closes on 27 March 2017.
Daniel Minhinnick and Aidan Cameron
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