Welcome to Environment in Focus, Bell Gully's regular update of resource management legal issues, designed to keep you informed on regulatory developments, legislation and cases of interest.
Items in this issue include:
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Following the release of the Technical Advisory Group report (TAG) recommending changes to Sections 6 and 7 of the Resource Management Act (RMA) there has been divergent views on the changes proposed. Some sectors support the bold changes, while others challenge the need to significantly re-write these sections. We consider that the changes that restructure Part 2 of the RMA better reflect what happens during the decision making process, and are on the right track – see our RMA reforms on the right track.
Business, developers and infrastructure providers will also welcome the proposed inclusion of the requirement to recognise and provide for:
If enacted these provisions will reduce what has been acknowledged as an over-emphasis on natural resources in the current list of matters of national importance. We have not yet had a steer on whether or not the Government supports the recommendations in the TAG.
Recently, Hon Amy Adams has announced that the Government will soon be consulting on wider reforms to the RMA planned for next year. It is anticipated that the changes to Part 2 of the Act will be part of this package. This will be the first significant change to the engine room provisions of the Act. It is anticipated that there will also be debate around providing for 'availability of land for urban expansion' and the interplay of this with the desire for intensification and concerns over housing affordability. This will be on the back of the Government's announcement on 29 October of four key priorities to make housing more affordable by:
The Government has also announced that a Resource Management Amendment Bill will be introduced by the House by the end of this year to address some of these objectives. This Bill will incorporate a new fast track process for the Unitary Plan (see our The Unitary Plan - it's on its way article), introduce the strict time limit for processing of medium sized consent applications, and make it easier to directly refer projects to the Environment Court.
The proposed fast track process for the Unitary Plan and limited appeal rights will have significant implications for those with land interests in Auckland. It will also be important to critique the other proposed changes to consent processing to ensure, as far as possible, that they will have the intended outcomes of reducing costs and delay.
Business, industry and other stakeholders can be heard on the proposed changes to the RMA by making submissions during the Select Committee process.
Bell Gully will advise you when the Bill is released and will be following the progress of this Bill and the further discussion on the Part 2 reforms. If you have any questions on the RMA reforms or Unitary Plan please contact the RM team or your usual Bell Gully adviser for further information.
The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill passed its third reading on 28 August 2012 and was enacted on 3 September 2012. The Act will not come into effect until a complete set of regulations is developed.
In our June issue of Environment in Focus, we provided you with a summary of the Report of the Select Committee and Discussion Document for the Regulations. We now set out some of the sections of note in the Act.
Purpose: The purpose of the Act was amended through the select committee process, and now mirrors the sustainable management purpose in the Resource Management Act 1991 (RMA).
Treaty of Waitangi principles: The Act provides for the Crown's responsibility to give effect to the principles of the Treaty of Waitangi. The Act includes provision for decisions to be informed by a Maori perspective (section 18); a process is to be established and used that gives iwi adequate time and opportunity to comment on the subject matter of proposed regulations (section 32), effects of activities on existing interests are to be taken into account (sections 33 and 59), and iwi authorities, customary marine title groups, and protected customary rights groups are to be notified of consent applications that may affect them (section 45).
The decision-making regime: Decision-making is with central government. The Environmental Protection Authority (EPA) decides applications for marine consents. The EPA may delegate its decision making to a Board of Inquiry or a committee appointed pursuant to the Crown Entities Act 2004. A Maori Advisory Committee may in some circumstances provide advice to the EPA.
The marine consent regime: If an activity is not permitted or authorised by the Act, a marine consent is required to authorise that activity. Consent can not be sought for prohibited activities. An application for marine consent is made to the EPA. The application must describe the activity, existing environment, the effects of the activity, and identify any persons likely to be affected. All applications must be publicly notified and submissions invited. The EPA has discretion in setting the procedure for any hearing, but has strict and tight timeframes for the hearing date (not later than 40 working days after submissions), length of hearing (no longer than 40 working days) and date of decision (no later than 20 working days after conclusion of the hearing).
Certainty of information: When considering an application for marine consent, the EPA must base decisions on the "best available information" and take into account any uncertainty or inadequacy in the information available. "Best available information" means the best information that, in the particular circumstances, is available without unreasonable cost, effort, or time. If the information available is uncertain or inadequate, the EPA must favour caution and environmental protection. If favouring caution and environmental protection means that an activity is likely to be refused, the decision maker must first consider whether taking an adaptive management approach would allow the activity to be undertaken (section 61).
Adaptive management approach: The EPA may incorporate an adaptive management approach into a marine consent. This includes allowing an activity to commence on a small scale or for a short period so that its effects on the environment and existing interests can be monitored; or any other approach that allows an activity to be undertaken so that its effects can be assessed and the activity discontinued, or continued with or without amendment, on the basis of those effects (section 64).
Protection of sensitive information: The EPA may, on its own initiative or on the application of any party to any proceeding, require the whole or part of a hearing to be held with public excluded or prohibit or restrict the publication or communication of any information supplied to it to avoid causing serious offence to tikanga Maori or to avoid disclosing the location of wahi tapu; or to avoid disclosing a trade secret or avoid causing unreasonable prejudice to the commercial position of the person who supplied or is the subject of the information (section 158).
Conditions of marine consents: Conditions that the EPA can impose include requiring the consent holder to provide a bond, obtain and maintain public liability insurance of a specified value, appoint an observer to monitor the activity authorised by the consent and its effects on the environment, monitor and report on the exercise of the consent and the effects of the activity, and make records related to the activity authorised by the consent available for audit (section 63).
Marine consents for cross-boundary activities: The EPA is responsible for ensuring the efficient and co-ordinated processing of a joint application for consent for a cross-boundary activity (section 96). A person who intends to undertake a cross-boundary activity may prepare a joint application for consent that complies with the requirements of the Act in relation to that part of the activity that relates to the exclusive economic zone or continental shelf; and the RMA in relation to that part of the activity that relates to the area within the 12 nautical mile limit. A person can also apply for a marine consent and resource consent for a cross-boundary activity separately, whether concurrently or at different times. However, the EPA may decide that a cross boundary application ought to be processed and heard jointly even if not applied for by the applicant (section 93). Separate decisions must be made on marine and resource consent joint applications – the EPA must decide the marine consent, and the consent authority must decide the resource consent (section 98).
Nationally significant cost-boundary activities: Where an activity within the 12 nautical mile limit is a proposal of national significance that is referred to a board of inquiry, the EPA may delegate to that board the EPA's functions in relation to an application for marine consent. The board of inquiry will therefore decide the application for a resource consent pursuant to the RMA and the application for marine consent pursuant to the Act. The EPA will still be responsible for the processing of the application.
Appeals on question of law: There is a right to appeal a decision by the EPA and/or conditions imposed in a marine consent to the High Court on points of law, and subsequently to higher appellant courts.
Offences and Penalties: The EPA is also responsible for the enforcement regime. Offences are strict liability. A person who commits an offence against the Act is liable in the case of a natural person, to a fine not exceeding $300,000 and in the case of a person other than a natural person to a fine not exceeding $10 million. There are also fines for continuing offences.
Transitional provisions: Various transitional provisions apply to existing petroleum activities that become discretionary under the regulations, mining activities involving structures or pipelines, or other lawfully established existing activities.
The regulations will provide the detail on what activities are permitted, discretionary and prohibited. The regulations may also specify the terms and conditions that will apply to a particular activity. The Minister must not recommend any regulation until they have been notified and open to public submission. The draft regulations are proposed to be notified in 2013.
Crown Minerals (Permitting and Crown Land) Bill
This Bill had its first reading on 26 September 2012 and aims to promote prospecting, exploration, and mining of Crown owned minerals for the benefit of New Zealand.
The prospect of reforming the Crown Minerals Act 1991 (Act) was first raised in the Petroleum Action Plan released by the Government in November 2009. This Bill seeks to deliver on one of the key initiatives set out in the Action Plan intended to facilitate resources-led economic development.
This bill is an omnibus bill and amends the Act, the Conservation Act 1987, the Continental Shelf Act 1964, the Reserves Act 1977, and the Wildlife Act 1953.
The Commerce Committee is due to report back on 30 January 2013.
Read Bell Gully's energy update entitled 'Crown Minerals Act reform is here' by clicking here
Draft Minerals Programme for Petroleum and draft Minerals Programme for Minerals (excluding Petroleum)
As part of the review of the Crown Minerals Act 1991 regime, the Ministry of Business, Innovation and Employment has published a draft Minerals Programme for Petroleum and draft Minerals Programme for Minerals (excluding Petroleum). The purpose of the Minerals Programme is to set out how the Minister will interpret and apply the provisions of the Crown Minerals Act 1991. Decision-makers must act in accordance with this Programme when performing a duty or exercising a power under the Act. See: http://www.med.govt.nz/sectors-industries/natural-resources/oil-and-gas/review-of-the-crown-minerals-act-regime/consultation-on-proposed-changes/consultation-draft-minerals-programmes
The draft Minerals Programme has been prepared in anticipation of the proposed amendments to the Crown Minerals Act 1991, as set out in the Crown Minerals (Permitting and Crown Land) Bill. It also reflects amendments likely to be proposed to the Crown Minerals (Petroleum) Regulations 2007.
Submissions close on 5 December.
The Resource Management (Restricted Duration of Certain Discharge and Coastal Permits) Amendment Bill ("Bill") aims to amend s 107 of the Resource Management Act 1991 ("RMA"), relating to the granting of discharge and coastal permits.
Section 107(1) of the RMA provides that a consent authority shall not grant a discharge permit where that discharge, after reasonable mixing, is likely to give rise to conspicuous oil, grease, scum, foam, suspended material, change in colour or clarity, objectionable odour, renders fresh water unsuitable for human consumption, or has a significant adverse effect on aquatic life. An exception to this is provided in subsection (2)(a), which allows for discharges to water where justified by "exceptional circumstances". Under current law, "exceptional circumstances" has not been defined or limited and consents may therefore be issued for a period of up to 35 years in accordance with s 123 of the RMA. As a result there is concern both that normal or regular discharges have been included within the "exceptional circumstances" umbrella and that consents have been granted for long term pollution of waterways. The Bill seeks to limit the period for which a consent can be issued in "exceptional circumstances" to a maximum of 5 years.
The Bill, put forward by Green party member Catherine Delahunty, has passed its first reading with support from all parties except ACT and National. It has now been referred to select committee and is open for submissions until 29 November 2012.
Please contact the RM team or your usual advisor if you require further information on this Bill, or would like to make a submission to the Select Committee.
The Council for Infrastructure Development and Water New Zealand has released its report assessing the performance of individual drinking water and wastewater operators against criteria set for good practice in the 2011 National Infrastructure Plan (NIP). The assessment centred on a pilot group of nine water and waste operators, which collectively provide water services for half of New Zealand's serviced population.
The report shows that there is a clear correlation between an operator's size and its results, with the larger operators scoring better as increased size enables improved strategic focus, specialisation of technical staff, and purchasing power. However, operators involved in shared service arrangements were also able to achieve some of the benefits of economies of scale.
Notably, none of the operators scored well for funding or regulation. These findings verify the analysis in the NIP that governance and regulation of the sector require attention. Operators are 'takers' rather than imposers of regulation. All the operators currently suffer from a disparate regulatory environment, with regulations spread across a range of central and regional agencies, often with conflicting priorities.
The study also noted that resistance to change on the part of communities was inhibiting many operators from implementing changes to governance arrangements and funding models.
The results of the study reinforce the recommendations from the NIP in respect of the requirements for improved governance, management, and regulation of water infrastructure. These are being pursued through the Fresh Start for Fresh Water and Better Local Government reforms and work programmes.
The study concludes that fundamental change will be required to improve the performance of this sector in the short to medium term. In particular, it outlines the following areas for improvement:
At a detailed principle level, the study also makes a series of recommendations to improve individual scores, including that operators should:
For more information and a copy of the report, please see: http://waternz.org.nz/projects.html#Pilot
The National War Memorial Park (Pukeahu) Empowering Act 2012 (the Act) grants the necessary statutory authorisations and property rights to the Ministry for Culture and Heritage and the New Zealand Transport Agency (NZTA) to enable the completion of the National War Memorial Park in Wellington by April 2015, the centenary of the commencement of the Gallipoli landings during the First World War.
The Bill was fast tracked through the House, with its introduction on 23 August, the select committee report on 18 September, the third reading on 27 September, and royal assent on 3 October 2012.
The Transport and Industrial Relations Committee considered that the approach taken in the Bill was warranted due to the constrained timeframe for completion of the nationally significant project. It stated that, without this legislation, it is unlikely that the necessary statutory authorisations could be obtained in time for the Park to be completed by April 2015, even making use of the streamlined national consenting process available through the Resource Management Act 1991 (RMA).
The Act grants resource consents, heritage authorisations, and building consents, and provides the designation, powers of entry onto land, and property rights to the Ministry for Culture and Heritage and the NZTA. Significantly, the Act removes the standard submission and repeal rights available under the RMA, the Historic Places Act 1993, and the Public Works Act 1981 (PWA). Rights to compensation under the PWA are, however, preserved.
The Act does make the authorisations subject to a range of checks and balances, including the usual associated conditions. Some conditions will require plans or documents to be produced, and the Act includes a process for independently certifying that these documents satisfy the requirements of the conditions.
Although the Act is clearly for honourable intentions, it could be subject to criticism in the way that it does away with the rights of public participation in the planning process and right of redress to the courts, particularly as the reason for extinguishing these rights is solely due to the desire to have the Park complete by the centenary of World War I.
A study has been commissioned to investigate the potential for developing an oil and gas industry on the East Coast of the North Island. The study is being undertaken on behalf of eight East Coast councils as a joint initiative between the Ministry of Business, Innovation and Employment and Business Hawke's Bay.
The key purpose of the study is to assess the potential for onshore oil and gas development in the region and to identify the potential benefits and costs. The study will provide an overview of the development potential of oil and gas reserves, economic benefits, infrastructure required, and environmental risks. The study will also include a detailed assessment of one potential development scenario by an existing permit-holder, including field development and construction, infrastructure and labour requirements. Input will be sought from a range of interested parties, including industry and local iwi.
The study is expected to be completed by the end of this year. It is proposed that the study can then be used to inform local debate on proposed exploration and drilling activity in the area.
The RMLA has recently facilitated workshops up and down the country to discuss expert witness conferencing. The workshops were attended by resource management lawyers and consultants from a wide range of disciplines. The focus of the workshops were to discuss the current practices adopted for expert witness conferencing, and develop some best practice guidelines – in terms of both procedure and the production of joint witness statements.
Mediation has been a technique used, both formally and informally, in the RMA context for many years. More recently, the Environment Court has also directed expert witnesses to conference. There are distinct differences between mediation and conferencing. Mediation will typically involve counsel, clients, and expert witnesses, with the purpose of trying to resolve the matters of the appeal. In contrast, expert witness conferencing occurs between the experts in one discipline that have been called by the various parties and they meet without counsel or clients present. Conferencing usually occurs after the experts have prepared and exchanged their evidence, with the purpose of discussing their methodology, reasoning and conclusions, and to confirm if there are any factual matters, opinions, or other issues that they agree on. The outcome of the conference session is then recorded in a joint witness statement which is signed by those participating and then filed with the Court and served on the parties, and forms part of the evidence for the hearing. This distinction is important – it is not for expert witnesses in a conference to make concessions in order to reach agreement.
The need for the workshop arose from the increasing frequency of expert witness conferencing, and that joint witness statements often have a wide range of content, form, and degree of benefit for the Court. Expert evidence plays a very important role in Environment Court proceedings, and due to the nature of an appeal, it is common place that expert witnesses for different parties will have different points of view. Expert witness conferencing can therefore be very helpful in assisting to narrow the differences between the witnesses, clarify why they reached different conclusions, and can help resolve technical issues.
Some of the issues raised and discussed in the workshop were:
A report collating the feedback from the workshop sessions is expected to be circulated shortly. It is proposed that best practice guidelines will also be developed, and amendments may also be made to the Environment Court Practice Note 2011.
|In the Courts||Top|
A recent decision of the Court of Appeal Minister for Land Information v Ann Mary Seaton  NZCA 234, has given a clear interpretation to what has been a troubling inconsistency in the definitions of 'Government Work' and 'Public Work' in the Public Works Act 1981 (Act).
The New Zealand Transport Authority (NZTA) wished to undertake road widening works on State Highway 1 in Christchurch that affected Mrs Seaton's land. In addition to the need for NZTA to acquire part of Mrs Seaton's land, three electricity towers owned by Transpower New Zealand Limited (Transpower) and Orion New Zealand Limited (Orion) which were located in the road reserve were proposed to be relocated onto Mrs Seaton's land. NZTA secured the Minister for Land Information (Minister) to issue a notice to publicly acquire Mrs Seaton's land for the road widening, and easements "as an indirect requirement of the public work to enable relocation of the transmission towers".
Mrs Seaton commenced proceedings in the High Court against the Minister seeking an order that the decision to take easements for the transmission towers was invalid, and was made for an improper purpose. Gendall J in the High Court considered that the fundamental issue was whether or not the interests in Mrs Seaton's land are required, directly or otherwise, to be taken for roading purposes, and accordingly if that taking was for a proper purpose. The High Court considered that the easements were not for the purpose or use by NZTA, but for the benefit of Transpower and Orion, and therefore the Minister exercised his powers for an improper purpose. The Court declared the Minister's decision and notice to take the easements invalid.
The Minister appealed, and the Court of Appeal overturned the decision of the High Court finding:
The Court of Appeal therefore held that the Minister can acquire land for transfer to another party in this situation, provided that the land can properly be said to be required directly or indirectly for a Government Work. However, the Court left it open whether or not a subsequent transfer of the interest in land from the Minister to Transpower and Orion under section 186(4) of the RMA was appropriate.
The High Court has recently confirmed that the downstream effects of the combustion of the coal on climate change are legally irrelevant when assessing land use applications to mine coal under the Resource Management Act 1991 (RMA).
Royal Forest and Bird Protection Society of New Zealand Incorporated and West Coast Environmental Network applied to the Environment Court in March this year for declarations relating to coal mining proposals by Buller Coal Limited. The applicants argued that the effects of the CO 2 that would ultimately be released on the burning of the coal overseas should be taken into account under section 104(1)(a) of the RMA during the consideration of the land use consent applications for the mining operations. Counsel for the environmental groups argued that section 104(1)(a) does not contain a prohibition on considering the downstream impacts of coal combustion, and that in fact these effects should be mandatory relevant considerations.
In a previous decision on an application by Greenpeace, the Supreme Court had addressed whether CO 2 emissions should be considered when a consent authority processed an air discharge consent. The Court decided that Parliament intended climate change effects from such projects to be regulated at the national level and not on a case-by-case basis by regional councils when assessing discharge permit applications. The Court, however, did not specifically turn its mind to land use consent applications, and its decision had been informed by section 104E of the RMA, which specifically prevents a decision maker from having regard to the effects of an air discharge on climate change.
The Environment Court declined the Forest & Bird application, a decision that was upheld by Whata J in the High Court on appeal. Justice Whata found that the same reasoning applied for land use consents as for discharge consents. He concluded that overseas discharges and their effects were not subject to the jurisdiction of a local authority under the RMA and that it would be "palpably unattractive" for councils to attempt to apply sustainable environmental policy in foreign jurisdictions.
Interestingly, Justice Whata left open the question of whether diffuse, non point emissions of greenhouse gases are "amenable to district level control", these not usually being subject to rules requiring resource consent. Similarly, the Court did not close the door on the beneficial effects of land use management being considered, depending on the facts and the specific policy framework under consideration.
The West Coast Environmental Network was recently granted leave to appeal the High Court's decision to the Court of Appeal. Further, the 2011 decision to grant the resource consents for the mine has been appealed to the Environment Court, with the hearing scheduled to begin in the week of 29 October 2012.
Farming practices have recently come under scrutiny in Day v Manawatu-Wanganui Regional Council  NZEnvC 182. This case arose as a result of the Horizon One Plan which put in place regimes regulating the leaching of nutrients into waterways. In particular, the notified version of the Horizon One Plan requires all dairy, intensive sheep and beef farming, cropping and commercial vegetable growing to be within leaching limits. In order to exceed these standards, farmers are required to obtain a resource consent.
The increasingly stringent limits are to be rolled out over the next 20 years. The limits vary according to the type of land as classified using the Land Use Capability system which takes into account soil type, geology, slope and vegetation cover. This aims to discourage farmers from converting steep or porous land into intensive dairying which causes higher rates of nitrogen leaching than other forms of farming.
In the Environment Court the One Plan was strongly opposed with farmers claiming that the proposed leaching limits were too severe, having the effect of "putting farmers out of business". The Court however found in favour of the leaching limits, noting that failure "to take available and appropriate steps" to prevent the decline in water quality would be "inexcusable".
Federated Farmers has since appealed this decision to the High Court on the grounds that the Court failed to properly consider the social and economic implications of imposing the leaching limits.
With the Land and Water Forum due to report to the Government shortly with recommendations on how to achieve and manage limits for water quality, the High Court proceedings will be of interest to many sectors.
In its recent decision of Royal Forest and Bird Protection Society of New Zealand Inc v Waitaki District Council  NZHC 2096, the High Court considered an application for judicial review by the Royal Forest and Bird Protection Society of New Zealand Inc (F&B). F&B challenged the validity of a certificate of compliance (CoC) granted by the Waitaki District Council (Council) to Five Rivers Ltd (Five Rivers) under section 139 of the Resource Management Act 1991 (RMA).
The CoC purported to certify a number of farming activities as permitted activities, including crop production and arable farming, irrigation and ancillary building construction. F&B argued that the Council failed to assess whether those activities were permitted activities in terms of the District Plan rules controlling indigenous vegetation clearance.
The CoC was expressed to be subject to a condition that "the conditions in rules 4.4 and 4.5 of the Plan are complied with", which included Site Development Standard 4.4.8, which set controls for the clearance of indigenous vegetation. Five River stated in its application that it would comply with Rule 4.4.8.
F&B argued that the Council had insufficient information to enable it to be satisfied that Rule 4.4.8 would be complied with and that further inquiries should have been made before the CoC was issued.
Having examined section 139 and the corresponding case authorities, the Court concluded that the Council had acted unlawfully in issuing the conditional CoC to Five Rivers. It stated that, "having regard to the nature and scale of the proposed activities and the scale of possible indigenous vegetation suggested by the plans, it was incumbent on the Council to do more than just rely on the bare assertion of the applicant". The Council was required to satisfy itself as to what the activities actually involved, including whether any vegetation clearance was proposed and, if so, whether it would breach Rule 4.4.8.
In order to do this, the Court found that the Council should have required a qualitative botanical survey detailing the indigenous vegetation present. It also needed to assess:
Accordingly, F&B's application for judicial review was granted, and the Court made a declaration that the Council's decision to grant the CoC was invalid and made an order quashing that decision.
The future of heritage buildings in Wynyard Quarter has recently come before the Environment Court in Art Deco Society (Auckland) Inc v Viaduct Harbour Holdings  NZEnvC 125.
The issue in this case was whether five existing buildings within Wynyard Quarter should be identified as character buildings in the Isthmus Plan. The key consequence of this scheduling would be that any proposal to alter, add to, demolish or remove a building would require a resource consent.
The Court found that two of the buildings (the Gloss Boats Building (also known as the former Baileys Shipyard and Devonport Ferry Company and as the Seagars Building) and the HQ Building (also known as the former Chas Bailey Shipyard)) "failed to make the cut" for being identified as character buildings. This was due to their specific building characteristics, such as the presence of a modern street facade, and the fact that both buildings had been significantly altered.
In relation to the other three buildings (the Southern Spars Building, the North Sails Building, and the Smart Marine Building), the Court concluded that there was "insufficient encouragement" to identify these as character buildings. In reaching this decision the Court considered the buildings in the context of the overall development, stating that "to list the buildings would be to significantly affect the implementation of the Wynyard Quarter Vision". Therefore, although these three buildings were found to meet the standards for consideration as character buildings, it appears the Court chose not to include them in the schedule in light of the competing development interests.
Further information about the development projects that are proposed within the Wynyard Quarter and other Waterfront initiatives are available in the Waterfront Plan.
If you would like further information about any of the items in Environment in Focus, please contact:
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