Resource Management Update – June 2017

Home Insights Resource Management Update – June 2017

In this edition:

Infrastructure prioritised in Budget 2017

With the Government in a position of surplus, tax cuts were expected to be the major focus of Budget 2017. While this is the case, the Government's second priority is increasing its infrastructure spend. In his first budget as Finance Minister, Steven Joyce announced that the Government is allocating $4 billion in new capital spending as part of its 2017/18 Budget to provide the infrastructure necessary for a growing economy, and has reserved a further $7 billion in new capital for the following three Budgets. This includes:

  • $812 million for the reinstatement of SH1 north and south of Kaikōura following last year's earthquakes.
  • $548 million of new capital funding to maintain and upgrade New Zealand’s rail network, supporting freight movement, exporters, tourism and public transport.  This includes $450 million for KiwiRail’s nationwide rail network (including restoring the South Island Main Trunk Line) and $98 million for upgrades to Wellington’s commuter rail network.
  • $436 million for the first stage of Auckland’s City Rail Link.
  • $100 million towards the Government’s programme to release Crown land for the development of 2700 houses, which will contribute towards the Government's commitment to building 34,000 new houses in Auckland over the next 10 years.
  • $63 million for investing in new water storage infrastructure in regional New Zealand.

Infrastructure investment will be made through core Government agencies, as well as infrastructure agencies, like the New Zealand Transport Agency and KiwiRail. The Transport Agency will invest $9.17 billion in new State Highways over the next 4 years (including the completion of Auckland's Western Ring Route, the proposed East-West Link in Auckland, SH 1 Peka Peka to Ōtaki Expressway, Transmission Gully, and the Northern Arterial and the Southern Motorway Extension in Christchurch). These projects will link major cities with the regions, improve journey times, allow for increasing freight movements, and help the growing tourism industry.

The Government also intends to leverage infrastructure investment through greater use of public-private partnerships and joint ventures between central and local government and private investors. During his Budget 2017 speech, Mr Joyce said more would be said on this point in the coming weeks.

Other ongoing environmental matters that the Budget 2017 touches on include:

  • An extra $1 million for the Te Mana o Te Wai Fund to improve water quality of freshwater bodies of importance to local iwi.
  • $1.5 million to advance proposals for recreational fishing parks in the Hauraki Gulf and Marlborough Sounds alongside other proposals for the use and protection of marine space in these areas.
  • $466 million towards conservation programmes and managing tourism growth on public conservation land. The Government's focus is on initiatives to protect and restore threatened species; prevent the spread of kauri dieback; increase predator, pest and weed control; and marine protection.
  • An extra $4.9 million operating over four years to implement the National Policy Statement on Urban Development Capacity, which seeks to ensure district plans provide opportunities for housing and business development. This is one of the Government's key initiatives to help address housing affordability.
  • A further $3.5 million to administer the $1 billion Housing Infrastructure Fund designed to assist high-growth councils in financing water supply, storm water, wastewater and roading – to open up new housing areas.
  • $4 million of new operating funding over four years to progress New Zealand’s climate change work programme, including a review of the Emissions Trading Scheme and the Productivity Commission's investigation into climate change on the economic trade-offs necessary to meet New Zealand's 2030 emissions target as part of the Paris Agreement.

Allison Arthur-Young & Jess Riddell

One size fits all: discussion papers for first set of National Planning Standards released

As discussed in our last Resource Management Alert on RMA reforms, the Ministry for the Environment is developing National Planning Standards to streamline planning documents nationwide. The Ministry has recently released 10 discussion papers that outline the context, evidence, approach and options for each type of Standard. Feedback in this initial engagement phase is due by 31 July 2017 and it is highly important that developers, councils, infrastructure providers, industry experts, and other frequent users of planning documents, get involved now to ensure the standardised approach will work in practice. 

The majority of the discussion papers address the structure and format of RMA policy statements and plans, however there are three key discussion papers that address content, which are likely to be the most influential:

  • Zones and Overlays (Discussion paper C) – this paper sets out a proposed approach to standardising spatial layers (zones, overlays, precincts) and their content in plans, and includes the possibility of standardised provisions (including objectives, policies and rules) for residential, commercial, industrial, rural, open space and special purpose zones.
  • Definitions (Discussion paper G) – this paper sets out a number of definitions common in plans that are proposed to be standardised, including a number of key terms such as "aircraft operations", "commercial activity", "earthworks", "gross floor area", "network utility", "temporary activity", "modification/minor works/minor upgrading", "infrastructure", "retail activity", "building" and "height". Alterations to these definitions have the potential to significantly change the way that the rules in plans operate.
  • Metrics (Discussion paper I) – this paper proposes to standardise measurement and thresholds for various metric themes in plans. Metrics are proposed for building bulk and location, earthworks, noise and light spill.  Standardised thresholds have the potential to impact on a large range of operations.

Following this initial feedback stage, draft Standards will be notified for written submissions between April 2018 and January 2019, however, there will not be an opportunity to be heard on these submissions. It is therefore critical that the opportunities to participate in the development of the draft Standards are taken now. More information about the Standards and the process of providing feedback can be found here. Please get any touch with any of our team if you would like to discuss the Standards, or require assistance in developing a plan for engagement.

Bronwyn Carruthers & Simon Pilkinton

King Salmon update:

High Court takes a different view on the role of Part 2 in plan making and leave to appeal granted in Davidson

In Turners & Growers Horticulture v Far North District Council [2017] NZHC 764, the High Court has essentially confined the Supreme Court's decision in King Salmon on the role of Part 2 in plan-making decisions to its own particular facts. This is an unexpected departure from the now readily accepted status quo. 

Turners & Growers appealed the Far North District Council's decision (confirmed by the Environment Court) on Plan Change 15 to decline relief sought by Turners & Growers to include controls in the District Plan to manage incompatible rural land uses, including conflict between Turners & Growers's Kerifresh fruit processing facility in Kerikeri and a nearby waste transfer station established by Northland Waste Ltd.

Gilbert J found that Part 2 remains relevant to plan-making decisions under the RMA, by virtue of the Council's obligation to prepare a plan change "in accordance with" the matters provided in s74 (1)(a)-(f) RMA, which includes a reference to Part 2. In doing so, Gilbert J found that King Salmon turned on the requirement for lower-order plans to "give effect to" a national policy statement (or other higher-order planning document), rather than whether proposed rules (like those proposed by Turners & Growers (T&G) in Plan Change 15) were the "most appropriate way" to achieve the objectives and policies of the District Plan under s 32. 

In our view, the High Court's approach is much broader than the approach taken by some other Courts, which have interpreted King Salmon to considerably limit the scope of matters to be considered. While this might be useful in certain circumstances (ie where a plan overemphasises protection rather than enabling development), here the Environment Court used it to "play down" the objectives and policies which required management of potential reverse sensitivity effects (like those generated by Northland Waste on T&G's operations).  

The High Court also placed a significant amount of weight on the broad nature of T&G's notice of appeal, which included "general reasons for appeal" included in (almost) all notices of appeal to the Environment Court as pro forma grounds to ensure the appellant's argument has scope to develop as a case progresses. The Court effectively found that including a general ground of appeal based on inconsistency with Part 2 estopped any complaint before it that the Environment Court inappropriately had regard to Part 2 matters in reaching its decision. This was not a point that was argued before the High Court, and may come as a surprise to those in the resource management community who regularly pray in relief of Part 2.

In other King Salmon related developments, the R J Davidson Family Trust were granted leave to appeal to the Court of Appeal on the question of whether the High Court misinterpreted the need to assess applications for consent under s 104 "subject to Part 2". The appeal is likely to be heard in September.

Disclosure – Russell McVeagh acted for Turners & Growers and the R J Davidson Family Trust in the proceedings discussed above. 

Bronwyn Carruthers & Aidan Cameron

An ocean of applications: recognition of protected customary rights and customary marine title

The deadline for applications to recognise customary rights in the foreshore and seabed under the Marine and Coastal Area Act 2011 closed on 3 April 2017. Over 150 applications were made for recognition orders from the High Court or for direct negotiation with the Government.  Of interest, the co-chair of the NZ Maori Council has applied for recognition of protected customary rights and customary marine title for New Zealand's entire coast on behalf of all Māori.  

There will be wide-reaching implications if applicant groups are successful. However, the threshold for recognition of either category is high, essentially requiring proof that the right or occupation has existed since 1840 without substantial interruption.

Two types of customary rights can be recognised under the Act:

  1. Protected customary rights – are rights to use parts of the coastal marine area without resource consent or other restriction. If protected customary rights are granted over an area, activities that will, or are likely to have, more than minor adverse effects on the protected customary right cannot be undertaken without prior written approval from the relevant group (with limited exceptions).
  2. Customary marine title – provides rights akin to ownership, providing considerable control over how an area is used, including the power to grant or decline "RMA permission rights" on any grounds, effectively amounting to a veto power over resource consent applications (with limited exceptions for infrastructure). 

A decision to decline a permission right is final – it cannot be appealed. 

If a party applies for resource consent in an area where there is a pending application, the party seeking resource consent must give notice to and seek the views of the customary rights applicant group. 

Given the significant number of applications made, it may take some time for them to be processed. It is an area to watch with interest. 

Daniel Minhinnick & Mike Doesburg

10-year battle to strike a balance between Farming and Conservation

The Environment Court's decision on Plan Change 13 (PC13) to the Mackenzie District Plan was released on 13 April 2017. PC13 is intended to protect Mackenzie Basin's ONLs from inappropriate subdivision, development and use. Since initially notifying PC13 in 2007, the Mackenzie District Council has defended PC13 through eleven Court decisions, incurring costs exceeding one million dollars. 

Various farming interests, including the Mackenzie branch of Federated Farmers submitted that the PC13 rules were too restrictive and risk making farming in the Basin unviable as the proposed provisions restrict the ability to intensify productivity using irrigation and place limits on certain farming methods. The Environmental Defence Society, along with a number of other section 274 parties, submitted that pursuant to s 6(b) RMA and the regional policy statement, PC13 must install a regulatory regime that halts further degradation and ensures protection of ONL characteristics and values. 

The Environment Court found that pastoral intensification and agricultural conversion in the Mackenzie Basin is often inappropriate and unsustainable. The Court accepted that the ONL was much more than just its visual attributes, and PC13 needed to protect those values, such as natural science values, as well as the scenic qualities against inappropriate development and use. Weighing all factors, the Court concluded that the Council's reworded objectives, policies and rules were in accordance with the Council's functions under s 31 of the RMA, and are the most appropriate provisions under section 32 of the RMA. Accordingly, the Court confirmed PC13, subject to the Council's latest changes.

Judge Jackson also recommended an immediate moratorium on certain Crown land sales to farmers, while an "all station" environmental impact review is carried out. The Commissioner for Crown Land, Craig Harris, is currently considering the Court's comments and has the final say on a moratorium decision. Federated Farmers is strongly opposed to a moratorium, and has not ruled out the possibility of an appeal. 

Bronwyn Carruthers & Jess Riddell

Shifting currents – continuing changes to water policy

The last few months have seen further developments in the freshwater policy sphere, including the Our Fresh Water Report, the Clean Water 2017 Package and Taranaki Regional Freshwater Plan.

On 27 April 2017, the Ministry for the Environment and Statistics NZ released a report entitled "Our Fresh Water 2017" with a focus on water quality; water quantity and flows; and ecosystems, habitats and species. Key findings from the report include:

  • nitrogen levels are getting worse at 55% and getting better at 28% of monitored river sites;
  • phosphorus levels are getting better at 42% and getting worse at 25% of monitored river sites;
  • of the 39 native fish species reported on, 72% are either threatened with or at risk of extinction;
  • E.coli levels are 22 times higher in urban areas and 9.5 times higher in pastoral rivers compared with rivers in native forest areas; and
  • 51% of water allocated for consumptive use is for irrigation, and 65% of that is allocated to Canterbury.

While the report does not make any recommendations for management or policy responses for freshwater issues, it does identify a range of information gaps that it hopes will be filled over time. 

The Ministry for the Environment has also recently released a number of further reports following the debate and confusion around the freshwater quality standards proposed by the Government's Clean Water 2017 package. NIWA's Technical Background Report to support the Clean Water package acknowledges:

  • that the Clean Water 2017 sampling guidelines are clearer than the 2003 guidelines and National Policy Statement on Freshwater Management 2014 in that sampling must occur "regardless of weather conditions";
  • the standards for swimmability under the Clean Water 2017 proposal are more restrictive than the secondary contact standards (ie for wading, boating), but more permissive than the national bottom lines under the National Policy Statement on Freshwater Management 2014; and
  • currently, only 43% of sites (that NIWA has data for) comply with the Clean Water 2017 standards for primary contact (swimming), meaning the new categories provide a target to aim for.

The Ministry for the Environment has also published a report on the swimming categories for the Clean Water package. Notably, the report identifies:

  • the level of E.coli present that is considered unsafe for swimming has changed only negligibly since the 2003 guidelines;
  • the new swimmable categories focus on how often the acceptable threshold is exceeded, and the water quality is graded accordingly;
  • although the proposed categories allow swimmable water bodies to exceed the acceptable threshold more often, they also require the water to be of very low health risk at least half of the time; and
  • the proposed standards for the "excellent" and "good" categories are very similar to European Union thresholds.

As an example of ongoing freshwater reform in the regions, the Taranaki Regional Council has recently provided an update report on its proposed Freshwater Plan. The Plan is still at a draft stage, with notification expected in 2020. However, the proposed Plan has ambitious guidelines for all rivers to have riparian fencing, and the definition of "river" includes streams and intermittently flowing waterways of any size. This means that all streams, regardless of size and location must be fenced. 

As part of the consultation stage for the proposed Plan, the Council commissioned a report comparing the proposed Plan's standards for riparian fencing with the fencing recommendations of the Land and Water Forum. The report notes that the proposed Plan will result in reduced contaminant loads across all contaminants tested for, and that fencing first order streams (as is proposed) makes a considerable difference to contaminant loads, as it is estimated 80% of the transfer of contaminants to water occurs at first order sites. However, overall, the effectiveness of riparian fencing depends on the terrain of the site and the contaminants involved.

Daniel Minhinnick & Simon Pilkinton

This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.

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