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Resource Management Update – 27 November 2018

Home Insights Resource Management Update – 27 November 2018

In this edition:

Super powers: The Housing and Urban Development Authority Unveiled

Solving New Zealand's housing crisis has been on everyone's political agenda. The latest step towards building more affordable housing and fast-tracking urban development is the establishment of the long-awaited Housing and Urban Development Authority, the details of which were announced by the Housing Minister Hon Phil Twyford over the weekend.

The Authority will be a new Crown agency that will combine Housing New Zealand (and its subsidiary HLC) and the KiwiBuild unit to form a super agency, and it will have super powers to match. The Authority will have two key roles, namely to lead large and small scale urban development projects, and to be a public landlord. Its overarching aim is to drive the Government's urban renewal programme by accelerating and delivering quality urban development that connects households with employment opportunities, open spaces and transport links.

The Authority will be equipped with some very broad powers that will enable it to cut through what the Minister sees as the red tape that is currently inhibiting development from occurring, as well as cut through rights, including in some cases the ability to:

  • Shorten planning and resource consent processes by being the consenting authority for projects.
  • Acquire private property and re-purpose Crown-owned land for development projects.
  • Override, amend or suspend provisions in planning documents, including existing designations and district plan provisions.
  • Build, alter or remove any building infrastructure in the project area.
  • Suspend, make or amend bylaws.
  • Set target rates inside the project area and require betterment payments from landowners for transport projects.

Perhaps in acknowledgement of its proposed wide-ranging powers, the Minister has said that the Authority will work in partnership with local iwi, councils and the private sector to deliver new communities. There will also be opportunities for the public to provide input, including on the development plans for projects. The development plans will set out (among other things) the powers that the Authority can use for that particular project. A panel of independent commissioners, one of whom must be a current or former Environment Court Judge, will hear submissions on development plans and can make recommendations to the Minister.

It will be interesting to see how this new super agency, which will be able to override provisions in existing RMA planning documents, will fit with the Government's other agenda on RMA reform.

The Minister has indicated that legislation will be introduced into Parliament in 2019 to establish the Authority. The first projects are expected to be in place by 2020. The Minister's press release and further information on the Authority is available here.

Daniel Minhinnick and Lauren Eaton

"Fixing" the RMA: The Government's plan for RMA reform

When in opposition, Labour was highly critical of the National Government's 2017 amendments to the RMA which, among other things, reduced public participation and gave the Minister broad powers. This month, Environment Minister, Hon David Parker announced a staged reform programme designed to repeal a number of National's provisions. In a recent Cabinet paper (available here), the Minister outlined the details of the programme.

Stage One of the reform programme will comprise the introduction of an amendment bill in December this year. Stage Two will involve a more comprehensive review of the resource management system next year. The Minister considers that both stages are necessary to correct a resource management system that is "underperforming in its management of key environmental issues such as fresh water, climate change adaptation, and meeting people's needs for affordable housing and thriving communities."

Stage One – narrowly focussed amendments

Stage One will make a number of "relatively straightforward" amendments to the RMA and reverse the "objectionable changes made by the previous Government". It will:

  • Remove the Ministerial power to prohibit or delete district or regional plan rules that duplicate or overlap with other legislation.
  • Repeal the preclusions on notification, objection and appeal relating to consent applications for residential activities and land subdivision.
  • Repeal the restriction on submitters' ability to appeal only on matters raised in their original submission on resource consent applications.
  • Reverse the change to the subdivision presumption so that all subdivision requires resource consent unless otherwise permitted by a district plan.
  • Reinstate the ability for councils to require a financial contribution as a condition of consent.

Stage One will also see the introduction of a number of new provisions into the RMA to improve consenting, as well as enforcement and the Environment Court's processes. The proposed amendments will:

  • Enable all applicants to suspend the processing of their resource consent application and allowing consent authorities to suspend consent applications where administrative charges are outstanding.
  • Establish a new enforcement oversight unit within the EPA to take enforcement action under the RMA.
  • Clarify that conditions of multiple existing resource consents can be reviewed concurrently (ie catchment by catchment) as a simple measure to assist with scarce resource allocation.
  • Enable any person dissatisfied with a council's notification decision to challenge that decision by seeking a declaration from the Environment Court (except where they are a trade competitor or surrogate).

Stage Two – a comprehensive review of the resource management system

The contents of Stage Two are still relatively undefined but will comprise a more comprehensive review of the resource management system. It appears the Government is waiting for input from external agencies, as well as the conclusion of other Government work streams on climate change and urban development, before confirming the details of Stage Two. For now, the Cabinet paper says that climate change adaptation and urban tree protection will be two specific issues, along with the following focus areas:

  • Improving alignment across different pieces of resource management legislation.
  • Ensuring plans can be created, amended and implemented within a more reasonable timeframe while providing meaningful opportunities for public participation.
  • Improving the quality of decision-making.
  • Issuing clear national direction.
  • Removing unnecessary complexity.

The Stage One reforms are welcomed by most. While they represent arguably more "tinkering" with an Act that has become an easy political football in the last few years, the 2017 amendments made the RMA unnecessarily more complex. The bigger questions are around Stage Two: will it involve coherent change or more tinkering? And is the RMA truly the problem? Will the LGA get reviewed at the same time?

Allison Arthur-Young and Daniel Minhinnick

Finding the money:

The Productivity Commission's Report on Local Government Funding and Financing

Earlier this year, the Government asked the Productivity Commission to undertake an inquiry into local government funding and financing. The Commission has recently released an issues paper (available here) for public consultation.

The focus of the inquiry is on the adequacy and efficiency of the current local government funding and financing framework. In particular, the Commission will examine the cost pressures that local governments are facing, the current funding models used to deliver on local authority obligations, and the regulatory issues that underpin local authority financing. The inquiry is timely, given the recent proposed rates and development contribution increases around the country and ever increasing expenditure demands on local government, particularly in respect to infrastructure.

The issues paper presents a series of questions and invites responses from the public by way of submissions. Some of the key questions focus on:

  • Factors leading to funding pressures on local government and to what degree these vary from place to place.
  • The efficacy of long-term plans in addressing cost pressures and aligning council decisions with community preferences.
  • The management of infrastructure assets, including what practices and business models councils could use to improve the way they manage their infrastructure assets.
  • Whether there is a case for greater use of certain funding tools, such as targeted rates and user charges.
  • Whether there is a role for private investors in financing local government infrastructure.
  • Funding and financing systems, including whether these currently distribute costs fairly across different groups of ratepayers.
  • Councils' approach to local income / expenditure taxes, and rates, and the costs and benefits of these approaches.

Where shortcomings in the current system are identified through the inquiry, the Commission will examine options to improve local government funding and financing. To this end, the issues paper also poses questions around what other potential new tools could be beneficial for local government funding and financing, and how a transition to these new funding models could best be managed.

Submissions on the issues paper are due on 15 February 2019 following which a draft report will be released in June 2019, and a final report on 30 November 2019. Please contact one of our experts if you would like further information on the inquiry or on making a submission.

Allison Arthur-Young and Lauren Eaton

Keeping Auckland Moving: the new Draft Regional Public Transport Plan

Auckland Transport has recently published its Draft Regional Public Transport Plan to accommodate the next ten years of projected population growth. The intention is to "future-proof" Auckland against the rapidly increasing demand for public transport in the city.

While a key outcome of the Plan is to improve the customer experience, the Plan also promises the delivery of new key infrastructure for Auckland, including:

  • Completing the City Rail Link and Eastern Busway.
  • Development of Light Rail services.
  • New investment in the ferry and bus network to increase frequency.

With public transport patronage expected to reach 100 million by 2020, increasing the efficiency of services and enhancing customer experience is crucial to promote public transport as a preferred transport choice, reflecting the direction of the Government Policy Statement on Land Transport released earlier this year (our analysis of the Transport GPS can be found here).

Over the next decade, $28 billion will be invested in transport within Auckland, with $12.7 billion allocated to public transport projects (excluding the light rail project). There are only limited motorway enhancements planned for the 2018-2028 period, demonstrating both local and central governments' commitment to moving Auckland away from its reliance on private cars.

The Draft Regional Public Transport Plan also focusses on inclusivity and equity across public transport services. The aim is to ensure all Aucklanders have better access to public transport options as the city continues to grow.

If you would like to find out more about the Plan, a copy of the full draft Plan is available here. Public consultation is open until Friday 14 December 2018, and Auckland Council is holding several open sessions before this date, the details of which are available here.

Cameron Law and Simon Pilkinton

Waste not want not: waste sector reform

It has been a big year for waste sector reform. The start of the year saw a number of local authorities consult on their Draft Waste Management and Minimisation Plans, as per the six-year review obligation in the Waste Minimisation Act 2008. For Auckland, the result is a new Waste Management and Minimisation Plan that will see a kerbside collection service for food scraps rolled out, as well as seven new resource recovery facilities proposed for across the region.

Associate Environment Minister, Hon Eugenie Sage has more recently announced that changes to the Act itself are also afoot. The key driver for the reform proposals is the recent decision by China not to accept certain categories of lower-quality plastics and other recyclables from New Zealand (and other countries) for processing.

The proposed changes to the Act include:

  • Allowing the waste disposal levy to be applied to more than 400 additional landfills as a tool to encourage more materials recovery and diversion of material from landfill. This proposal will be subject to public consultation before any legislation is enacted.
  • Improving New Zealand’s waste data by requiring landfill operators to report on the composition and quantity of waste, and obtaining data from councils and the private sector to inform what is reduced, reused and recycled.
  • Requirements to analyse where investment is most needed to help businesses minimise waste, increase local processing capacity for recyclables and provide local jobs. As part of this, technical experts working for the Ministry for the Environment have been tasked with identifying priority sectors where waste can be significantly reduced and where changes in the supply chain can assist.
  • Introducing voluntary or potentially mandatory "product stewardship" schemes. Associate Minister Sage identified used tyres as the first target product for a proposed scheme (and certain private sector participants have already invested in facilities to process used tyres for re-use) but other proposed products include e-waste (starting with lithium batteries), agrichemicals, and synthetic greenhouse gases.

The Associate Minister has also announced that the use of "single-use" plastic bags will be banned across all retailers from the middle of next year.

These reform proposals show a clear intent from the Government to achieve meaningful changes in the waste sector, with potentially wide-reaching implications for business. Targeted involvement throughout this process could be crucial to ensure that the result of this reform is practical and efficient for industry. Please let us know if one of our experts can help you to become involved.

Allison Arthur-Young and Simon Pilkinton

Sorry, this land is reserved:

Royal Forest and Bird Protection Society of New Zealand Inc v Rangitira Developments Ltd

In the recent decision of Royal Forest and Bird Protection Society of New Zealand Inc v Rangitira Developments Ltd [2018] NZCA 445, the Court of Appeal allowed the Royal Forest and Bird Protection Society of New Zealand Inc's appeal against the High Court's decision on the interaction between the Crown Minerals Act 1991 and the Reserves Act 1977.

The appeal relates to Rangitira Developments Limited's application to enter and use the Westport Water Conservation Reserve (which is managed by the Council), as part of its operations at Te Kuha Mine. As outlined in our April update, Rangitira sought declarations from the High Court as to the Council's obligations in assessing Rangitira's application. In particular, whether the Council was bound to make its decision in accordance with section 23 of the Reserves Act (which requires local authorities to maintain reserves), or whether that was simply one of various relevant factors to be taken into account when making a decision under section 60(2) of the Crown Minerals Act.

The High Court held that it is ultimately up to the Council to weigh the relevant matters as it sees fit. The Court thereby gave primacy to the Crown Minerals Act but accepted that the Reserves Act is a relevant matter. Forest and Bird appealed, maintaining its position that the mandatory obligations imposed on the Council under section 23 were not displaced by section 60(2) of the Crown Minerals Act.

Allowing Forest and Bird's appeal and overturning the High Court's findings, the Court of Appeal held that section 60(2) is a permissive provision that does not override the application of other relevant legislation. The Court considered that the directive language of section 23 means local authorities are required to give effect to it, such that the Council was barred from entering into an access arrangement that was incompatible with the purpose of the Reserve.

The Court's ruling turned on the legislative history of the two statutes. When the Reserves Act was first enacted, the Crown had the power to declare any reserve containing coal to be subject to the Coal Mines Act 1925, and the Reserves Act was expressly subject to the provisions of the Mining Act 1971. The Court emphasised that the enactment of the Crown Minerals Act and Resource Management Act in 1991 fundamentally altered the regime for mining in New Zealand. Together, these statutes "swept away Crown control of access to minerals, and gave control of access to the owner or occupier of the land to be mined." In deciding whether or not to provide access, the landowner is "subject to all the laws that applied to the use of the land", which in this case was section 23 of the Reserves Act.

The Court of Appeal's decision could have significant implications for future mining proposals in New Zealand. On the Court of Appeal's interpretation, any proposal that requires access to a local purpose reserve will be subject to the requirement under section 23 to manage and preserve that reserve's features. The Court of Appeal was clear that section 23 imposes mandatory obligations on local authorities when it comes to managing and preserving local purpose reserves – it is not simply a relevant matter to be considered as part of the broader context.

Rangitira has sought leave to appeal the decision to the Supreme Court.

Daniel Minhinnick and Lauren Eaton

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