Resource Management Update – October 2017

Home Insights Resource Management Update – October 2017

In this edition:

It's showtime! Latest RMA amendments come into force

Some significant changes to the RMA come into effect today. As noted in our April issue the majority of provisions (including new planning processes and national-level direction) came into force on 18 April this year. However, a number of other significant provisions including amendments to resource consent and notification provisions take effect from today.

A new step-by-step notification process now applies to assist councils in determining whether to notify applications for resource consent and notices of requirement. There are now additional express restrictions on notification:

  • Councils no longer have a general discretion to publicly notify applications.
  • Public notification is also precluded (absent special circumstances) for controlled activities, subdivision and residential activities (if they are restricted discretionary or discretionary activities), and for boundary activities.
  • Limited notification is precluded for controlled land use activities (but not subdivision or regional activities).
  • The special circumstances test now applies to both public and limited notification, and notification is now mandatory if special circumstances exist.

The restrictions on public and limited notification will further limit the ability of interested parties to participate in consent applications, particularly for residential and boundary activities. While aimed at removing delays in consenting for housing developments, the amendments may have unintended consequences. For example, boundary activities that generate reverse sensitivity effects may not be subject to notification, restricting the ability of existing activities to manage their effects (raising reverse sensitivity issues).

The amendments also limit the right to appeal consent authorities' decisions on resource consents, with no rights of appeal for boundary activities, subdivision or residential activities (unless they are non-complying). Those limitations will result in a greater emphasis on council-level decisions, and require parties (both applicants and submitters) to put their best case forward in the first instance. Applicants in particular will need to work hard through the council process to ensure that the conditions of resource consents are appropriate, given they will no longer have recourse to the Environment Court to fix any issues with consent conditions after consent has been granted. Alternatively, and perversely, applicants will endeavour to find ways to make applications non-complying so as to retain appeal rights.

Other key changes that come into force today include:

  • Additional criteria for striking out submissions.
  • "Deemed" permitted activities for boundary activities (with written approval of the relevant neighbour) or "marginal or temporary" rule breaches.
  • Fast-track processing for certain controlled land-use consents with decisions required within 10 working days of lodging the application.
  • A new requirement under s 104 to have regard to measures proposed by an applicant to offset or compensate for adverse effects.
  • Limited scope for conditions (requiring a direct connection to an adverse effect, an applicable rule or national environmental standard).
  • Electronic delivery for service.

These are some of the most significant reforms to be introduced to the RMA since 2009. If you would like to discuss the impact of those amendments on you or your business, please contact our team.

Allison Arthur-Young, Bronwyn Carruthers, and Daniel Minhinnick

King Salmon update: Part 2, take 10

The Davidson appeal will be heard by the Court of Appeal next month. The decision continues to create issues for resource consent decisions, with the latest view on its effect arising from a windfarm proposal near Dunedin. In Blueskin Energy Limited v Dunedin City Council [2017] NZEnvC 150, the Environment Court took a more nuanced approach to assessment under s 104 than the Environment Court did in Davidson.

The appellant, Blueskin Energy Limited, is a renewable energy company established by local residents to develop renewable energy production. It appealed a decision by Dunedin City Council to decline resource consent to construct and operate a single wind turbine on Porteous Hill, Blueskin Bay.

The Environment Court agreed with the High Court in Davidson that there is inherent risk in applying an overall judgment approach under s 104 (ie by assessing an application directly against the provisions in Part 2) that the decision maker will take into account an irrelevant matter, or fail to take account of a relevant matter. The Court recognised that the decision in Davidson was binding on it, but noted that the "structured inquiry" under s 104(1)(b) set down by the Environment Court in Davidson was not commented on by the High Court. While not explicitly criticising that "structured inquiry", the Environment Court considered that Blueskin lent itself to a different approach, assessing considerations under s 104(1)(b), and weighing them by reference to direction in the relevant plans and / or the considerations in Part 2.

In determining the role of Part 2 in that approach, the Environment Court held that:

  • "direct" recourse to Part 2 is not required where policy direction is provided for in higher order instruments (absent, invalidity, uncertainty or incomplete coverage); but
  • Part 2 considerations may assist in determining the weight to be given to the matters in s 104(1)(b), thus informing the exercise of the Court's discretion, or "judgment", as to whether to grant consent.

The Court held its approach should not be taken as a formula for future decision-making, which should be determined by the facts of each case. The application itself was declined on adverse visual and amenity grounds (whilst acknowledging the significant positive benefits for sustainability and energy resilience in the area).

Interestingly, the decision does not refer to any "conflict" between the considerations in s 104(1) as an instance where regard can be had to Part 2. In an earlier Minute, the Environment Court in Blueskin referred to the "frequent overlap" between matters in s 104(1)(a), (b), and (c), and the ability to resort to Part 2 where there is "no discernible priority" between plan provisions. The absence of that discussion in the decision is curious, as it appears to accord with the commonly understood meaning of the use of "subject to" as a matter of statutory interpretation.

However, the decision is still a much less prescriptive approach to the assessment of objectives and policies than the strict inquiry approved in Davidson. In previous updates, we suggested that the High Court's approach in Davidson would raise the importance of plan provisions and higher-order documents that provide strong direction against consent. The Environment Court in Blueskin (and other decisions we have covered) appears to be seeking a more flexible approach, to avoid being "straight-jacketed" by the provisions of a plan whilst remaining respectful to the new world order post-King Salmon. The hearing of the Davidson appeal to take place on 21 and 22 November of the Court of Appeal in Wellington.

Bronwyn Carruthers and Aidan Cameron

Disclosure – Russell McVeagh is acting for the appellant in the Davidson proceedings.

Matakana Coast Trail Trust v Auckland Council: lack of positive effects now an adverse effect?

In Matakana Coast Trail Trust v Auckland Council [2017] NZEnvC 149, the Environment Court took a somewhat novel approach to its jurisdiction to impose consent conditions when it imposed a condition on the subdivision consent requiring the construction of a connecting public cycle trail through private land.

The applicant had received consent to subdivide a block of forestry land at Moir Hill, near Warkworth. The Matakana Coast Trail Trust appealed the Council's decision, seeking a condition requiring a connecting cycle trail between public roads to the north and the south of the subdivision, thereby enabling cyclists and pedestrians to travel through the area safely.

The crux of the appeal was whether the Environment Court had jurisdiction to impose the condition sought by the appellants. The Court concluded that both the Auckland Regional Policy Statement and the Auckland Unitary Plan supported greater connectivity, including off-road pedestrian and cycling facilities, as part of Auckland's transport network. In the Court's view, the relevant objectives and policies contemplated poorly integrated transportation connectivity as an adverse effect. Given the mandatory nature of these provisions, the Court considered that excluding off-road cycling and walking trails on private land was a "significant failure".

In reaching its decision, the Court seems to have equated the apparent lack of a positive effect arising from a proposed activity with an adverse effect. This approach significantly widens the scope of conditions that could otherwise be imposed on resource consents. It potentially encourages future decision-makers to impose their views of what a proposal should look like through conditions of consent, and thereby take a much more active role in directing the use of private land.

This case was decided under the former provisions of the RMA in relation to conditions, which (as of today) have been replaced . In reaching its view that it had jurisdiction, the Court relied on the legal test set down by the Supreme Court in Waitakere City Council v Estate Homes Ltd [2006] NZSC 112, [2007] 2 NZLR 149, requiring a "logical connection" between a condition and a proposed development. The RMA now requires a "direct connection" between the condition and an adverse effect or a rule, which may have precluded the Court from extending the concept as far as it did in this case.

It will be interesting to see whether subsequent decisions follow the Court's reasoning. Given the apparent departure from standard practice, the decision and reasoning may well be confined to its particular facts.

Daniel Minhinnick and Simon Pilkinton

Auckland Long-Term Plan: Council takes one for the road

In the first announcement of new policy for the upcoming 2018-2028 Long-Term Plan, Auckland Council has flagged infrastructure development as its key spending priority. In an initial statement of Mayoral Intent (available here), Mayor Goff identifies transport, housing and environmental protection as the Council's three priority areas in realising its vision of Auckland as a "world-class city".

The Long-Term Plan sets the financial framework and strategic direction that informs Council's funding and infrastructure decisions for the next three years. This can have widespread ramifications for ratepayers, and so engagement at the consultation stage is critical. Businesses need to be aware that changes in rates and development contributions may follow (along with the introduction of any number of the proposed new funding mechanisms).

In light of recent population growth, Mayor Goff considers that significant increases in infrastructure investment are crucial to securing Auckland's future. The Long-Term Plan will focus on accelerating infrastructure investment and working with central Government to broaden the Council's revenue base beyond reliance on traditional rating.

In respect of the Council's key priorities, the salient points of the proposal are:

  • Transport: addressing traffic congestion by introducing new assets (such as light rail from the CBD to the Airport) and by optimising the use of existing assets (eg corridor improvements, car-sharing and autonomous vehicles). Potential funding mechanisms include road-pricing mechanisms (tolls, regional fuel tax, congestion charging), further use of special purpose vehicles, greater use of the Interim Transport Levy and seeking central Government support through petrol taxes and road user charges. The Council will continue to approach traffic-related challenges through the framework of the Auckland Transport Alignment Project.
  • Housing: continued commitment to the Housing First project and Council's Future Urban Land Supply Strategy, including securing ongoing funding to provide infrastructure and servicing for brownfield development, assessing and implementing the Housing Taskforce recommendations and identifying tools to further influence the supply of affordable housing.
  • Environment: upgrading and building water infrastructure to reduce wastewater flows and ensure Auckland's beaches remain swimmable. Other priorities include addressing the causes of climate change by planting carbon sinks, addressing biodiversity issues such as pest control and kauri dieback disease, and waste minimisation.

The clear intent behind the Mayor's statement is for a more flexible approach to revenue gathering, both within its existing rating powers and through lobbying for new powers. The recent targeted rate applied to accommodation providers through the 2017-2018 Annual Budget is an example of the type of "creative" approach to funding we expect to see reflected in the Long-Term Plan. Mayor Goff is currently lobbying central Government to allow councils to retain the GST paid on rates, as one of a number of measures proposed to alleviate debt ceiling issues for Auckland Council.

We expect to see a consultation document on the Auckland Long-Term Plan released on 7 February 2018, with consultation to take place between February and March next year. We also expect to see a number of these policy documents surfacing across the country, with several other Long-Term Plans due for review in 2018.

For assistance submitting on any Long-Term Plan proposal, or for advice on the implications of a Long-Term Plan on your business, you can contact our experts.

Allison Arthur-Young and Mike Doesburg

More money, more problems: Auckland Council seeks feedback on its Development Contributions regime

Auckland Council recently held an initial session for developers and other interested parties, seeking feedback on its existing development contributions regime as it moves forward to beginning formal consultation on its new Development Contributions Policy for 2018.

For Stormwater / Parks contributions, the Council indicated that there are unlikely to be significant changes proposed under the 2018 Policy, as the current funding regime is appropriately servicing growth in demand for these assets.

However, in the Transport space, the Council is considering significant changes through the use of targeted local funding areas. The Council considers targeted contributions for transport infrastructure as being potentially appropriate for areas where such infrastructure may be required to "unlock" development in a particular area. The development in Drury South was cited as an example of where these targeted contributions for local transport infrastructure may assist in bringing new development to market faster. Our view is that the use of targeted funding areas for transport infrastructure is likely to become increasingly common, as out-of-centre development increases in Auckland to keep up with housing demand.

While not part of the development contributions regime, the potential to use targeted rates to both increase the Council's revenue base and encourage a faster rate of development was also discussed. The Council's current position is that targeted rates will only be appropriate for sites that are able to be developed at the time the targeted rate is imposed, and so in this way targeted rates are seen by Council as a useful tool against landbanking.

The Council is expected to initiate formal consultation on its 2018 Development Contributions Policy in February next year, with the new Policy to come into force on 1 July 2018. The Council is continuing to accept feedback on its existing regime and what could be improved for its new Policy until 31 October 2017. If you would like to provide feedback on the existing Auckland development contributions policy, or understand more about the potential changes proposed for the 2018 Policy, please contact one of our experts.

Allison Arthur-Young and Simon Pilkinton

Disclosure – Russell McVeagh is advising the Stevenson Group on its Drury South development.

New national standards for plantation forestry promulgated

In the latest round of regulation arising from the Ministry for the Environment's "Priorities for national direction", the National Environmental Standards for Plantation Forestry (NES-PF) has been promulgated. The NES-PF, which can be found here, were developed jointly by the Ministry for Primary Industries and the Ministry for the Environment, will come into force on 1 May 2018. The two key objectives of the NES-PF are:

  • to maintain or improve the outcomes associated with plantation forestry activities; and
  • to increase the efficiency and certainty of managing plantation forestry activities.

Previously, and in the absence of clear regulatory guidelines, the approach as to the management of plantation forestry has varied between and within regions. Different objectives, policies and rules across a myriad of regional and district plans have resulted in inconsistent environmental outcomes for plantation foresters, often leading to increased costs and uncertainty.

The NES-PF is intended to provide a consistent set of regulations for plantation forestry activities throughout New Zealand. However, the NES-PF also recognises the need for a degree of flexibility to allow councils to set more stringent rules in their plans to protect sensitive local environments. The NES-PF covers eight core forestry plantation activities: afforestation; selective felling of trees; earthworks; river crossings; forestry quarrying; harvesting; mechanical land preparation; and replanting. All other activities associated with plantation forestry will continue to be governed by the relevant rules in regional and district plans.

The NES-PF is based on good industry practice, requiring minimum standards to manage the potential environmental effects of plantation forestry. Examples of such standards include:

  • setbacks when planting next to rivers, lakes, wetlands and coastal areas to protect against erosion and sedimentation as a result of afforestation; and
  • management plans for earthworks, forest quarrying, and harvesting activities to identify and manage environmental risks.

If those standards are met, plantation forestry activities will be permitted. If not, resource consent will be required. The NES-PF will also introduce new science-based tools and methodologies to assist councils and foresters in determining when consent will be required; such as the Erosion Susceptibility Classification, the Fish Spawning Indicator, and the Wilding Tree Risk Calculator.

Over the coming months, the Ministry for Primary Industries will be engaging with councils to assist them in understanding the NES-PF and transitioning to the new regulations.

Russell McVeagh is active in New Zealand’s forestry sector, with forestry specialists across our practice advising on many of New Zealand’s largest forestry transactions and providing day-to-day legal solutions for a number of Australasia’s largest forestry management companies. If you would like to understand the implications of the NES-PF in more detail, or how they affect you and your business, please get in touch with one of our experts.

Daniel Minhinnick and Mike Doesburg

This article 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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