Environment & Planning

Last year, the New Zealand Emissions Trading Scheme (ETS) was brought under the spotlight after a High Court hearing and Labour government led review. We have previously explained the ETS here.  The ETS is governed by the Climate Change Response Act 2002 (the Act), putting a price on carbon emissions which certain industries must participate in.  Every tonne of carbon emissions costs a credit, called a New Zealand unit (NZU).  Participants who are emitters need to buy and surrender NZUs to the government to account for their emissions.  NZUs can be invested or traded on the NZ ETS market.  In 2021, auctioning was introduced where the Government sells NZUs to successful bidders. Auctioning allows the government to control the supply of NZUs, and therefore the emissions of participants, to meet its emissions reductions plan. The plan outlines the strategies and policies intended to achieve the emissions budget for 2022-2025.  Five year emissions budgets are mandated by the Act to assist New Zealand’s overall goal of net-zero greenhouse gas emissions by 2025. The Climate Change Commission’s advice regarding Amendment Regulations to the Act in July 2022 recommended allowing NZU prices to increase, and to maintain consistency with the emissions reductions plan. The Labour government declined to follow this advice in the Climate Change (Auction, Limits, and Price Control for Units) Amendment Regulations 2022, instead depressing the market, by artificially reducing the price of NZUs in the emissions reduction plan, leading to plummeting NZU prices and a judicial review. On 13 July 2023, the High Court found that Minister for Climate Change James Shaw made an error with his recommendations concerning the unit level and price control settings for 2023-2027 adopted in the Amendment Regulations.  The Minister admitted not complying with the relevant requirements.  The settings favoured by Cabinet did not accord with the 2025 target, and did not accord with or justifiably deviate from the emissions budgets and New Zealand’s contribution under the Paris Agreement.  The Minister was directed to reconsider the decision. Around this time, the Labour government launched a review of the ETS on 19 June 2023.  A summary of that review can be found here.  There was consideration given to forestry restrictions, to drive up the price of NZUs, creating uncertainty in the future of the forestry market. The Government failed to sell the 15 million NZUs it made available during the four ETS auctions in 2023, as the clearing price was not reached.  The units were consequently removed from the market.  The failure to clear was largely due to the significant excess of units currently in circulation. On 6 December 2023, the day of the final auction of 2023, the honourable Minister Simon Watts put out a press release.  He said that the  new coalition government is scrapping Labour’s ETS Review. They want a “strong and stable” ETS that gives “businesses certainty and confidence”. The Minister held these as the reasons of the NZU auction failure.  There was no suggestion of another review. On 12 December 2023, the Minister put out a second press release.  The Government is considering a report from the Climate Change Commission as they prepare a second emissions reduction plan and have started “work on doubling renewable energy production”. What does that mean for forestry? Our current Government’s focus on “certainty” and “business” implies no significant changes will be made to the ETS in relation to forestry for the foreseeable future (presumably, within the next three years at least).  Renewable energy seems to be the new government’s vehicle on the path to solving issues with the ETS. Forestry investors, and relevant stakeholders, can put to rest any concerns related to Labour’s review.  It appears as though forestry is not a key focus that the current Government has in relation to the ETS.  For now, all obligations and legal implications around carbon credits and offsetting remain unchanged.  If you have any questions around these obligations, please contact our expert team here.

The coalition government has followed through on its promise to repeal the Natural and Built Environment Act 2023 (NBA) and the Spatial Planning Act 2023 (SPA) before Christmas. On 19 December 2023 the Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Bill (Repeal Bill) was introduced to Parliament under urgency and has simultaneously passed through its first, second and third readings. It is anticipated that royal assent will be given before Christmas. There has been criticism regarding the urgency of the Repeal Bill as there has been no opportunity to comment on it before it has been given royal assent. The Repeal Bill repeals both the NBA and the SPA and will see a return to the Resource Management Act 1991 (RMA). However, to avoid unnecessary disruption through the repeal process a limited number of functions in the NBA are being retained, notably the NBA’s fast-track consenting process. Whilst the Repeal Bill is retaining the fast track consenting process, the government has indicated that it will work to develop and introduce its own fast-track consenting regime as part of its “100 day plan”. What shape and form this regime is to take is yet to be determined. Existing and new fast-track applications are able to be processed in accordance with the fast-track provisions (Part 2 of Schedule 10) in the NBA throughout this transition period. However, these provisions will need to be treated as if they were subject to the purpose and principles contained in Part 2 of the RMA. Treaty settlement arrangements reached between iwi and the Crown are also be protected through the repeal and any future resource management reform processes. The government has indicated that repealing the NBA and the SPA is the first step towards its commitment to reforming Aotearoa’s resource management towards a more efficient and streamlined system.

The new government’s coalition agreements gives a clear indication of its plans in relation to its resource management legislative reform for the next three years. With Labour’s legislation to be scrapped in favour of a return to the Resource Management Act 1991 (RMA) (with some amendments), and further significant reform on the horizon, it is going to continue to be an interesting and transitional time in the RMA space. The coalition agreements are clear, as National was prior to the election, that the Natural and Built Environment Act 2023 (NBEA) and the Spatial Planning Act 2023 will be repealed by Christmas, and the RMA will be reinstated, with amendments. These amendments are intended to ensure that it is easier to consent new infrastructure (including renewable energy projects), streamline the plan preparation process, and importantly establish a ‘fast track, one stop shop’ for consents and permitting processes for regional and national projects of significance (the process will involve a referral by Ministers for suitable projects). This fast track process is intended to be introduced for first reading in the first 100 days of the Government, no doubt to replace the fast track process currently contained in the NBEA. In the longer term, the intention is for the RMA to be replaced with new resource management laws that are based on enjoyment of property rights as their guiding principle. What this will look like remains unclear, but is likely to mean less regulation and control on what can be done as of right. Also under review will be the National Policy Statement on Indigenous Biodiversity, with a particular focus on reconsidering the mapping of significant natural areas that is required by the current policy statement. The National Policy Statement on Freshwater Management and the National Environmental Standards on Freshwater Management will be replaced, to “better reflects the interests of all water users”, putting the focus squarely on use rather than preserving and restoring where degraded the state of water bodies, as is the current priority. There is a strong focus on infrastructure, with a National Infrastructure Agency to be established to coordinate government funding, connect investors with New Zealand and improve funding, procurement and delivery to prioritise projects of regional and national significance. All work on Three Waters will stop immediately, with assets to be returned to council ownership. A review of all legislation that refers to the ‘principles of the Treaty of Waitangi’ will also be conducted, with all such references to be either repealed or replaced with specific words relating to the relevance and application of the Treaty. Interestingly, the Minister for the Environment is now a Minister outside of Cabinet – Penny Simmonds, with Act’s Andrew Hoggard, the Associate Minister, also outside of Cabinet. The more powerful Ministerial positions who will deliver RMA reform look to be Chris Bishop who will take the new Ministerial position of Minister Responsible for RMA Reform as well as Minister of Housing and Minister for Infrastructure, and will be supported by Act’s Simon Court who will also be a Minister Responsible for RMA Reform. Shane Jones will be Minister for Resources (a new position).

The National Built and Environment Act 2023 (NBEA) and the Spatial Planning Act 2023 (SPA) were given Royal Assent on 24 August 2023 and will repeal and replace the Resource Management Act 1991 (RMA). While the complete transition to the new system is expected to take more than a decade, parts of the NBEA are already in force: Fast Track Consenting The NBEA’s new fast track consenting process has now come into effect. Applicants can now seek ministerial referral of projects that meet a set of eligibility criteria (which relate to infrastructure and housing activities). If the referral is accepted, applicants can apply to the Environmental Protection Authority (EPA) for resource consent. Expert consenting panels then decide on the substantive applications and may set conditions on projects before they go ahead. Compliance, Management and Enforcement New compliance and enforcement tools have come into force and include the following: fines for non-compliance with consent conditions have increased: - $300,000.00 to $1,000,000.00 for individuals; and - $600,000.00 to $10,000,000.00 for companies. changes to abatement notice provisions which allow abatement notices to be issued for a breach of consent notices and covenants imposed by the conditions of a resource consent. new powers in relation to excessive noise which permit enforcement officers to issue an excessive noise direction which requires the noise to be immediately reduced to a reasonable level. Contaminated Land The ‘polluter pays’ principle applies from the day after Royal Assent and sets a presumption that polluters are to bear the costs of managing pollution to prevent damage to human health and the environment in relation to contaminated land. The EPA and the relevant local authority are empowered to recover all actual and reasonable costs from the polluter. Shorter Term for Freshwater Resource Consents Most new freshwater-related consents will have a new time limit on how long they last. The aim is to ensure freshwater resources are not locked in for long periods before regions make decisions in their NBE plans about how to allocate freshwater in their areas. The maximum duration applies to resource consents to take, use, dam, or divert freshwater. It also applies to consents for discharging any contaminants into freshwater or onto land where it can enter freshwater. The maximum duration can be no longer the 5 years after allocation methods in a region’s first NBE plan take effect. Once the transition to the new system has been completed, then the maximum duration will be 10 years (rather than 35 years under the RMA). Freshwater Planning Instruments The NBEA amends section 80A of the RMA to widen the meaning of a ‘freshwater planning instrument’ and to change what instruments must (or may) use the freshwater planning process. Aquaculture The Minister for Aquaculture now has extended powers to suspend resource applications, make regulations and allocate aquaculture space. However, following the recent election and a new National led government, we may in store for further changes to the new system (including the new system being scrapped altogether) before the end of the year.

Following the recent storm and flooding events, Tauranga City Council (TCC) has undertaken a review of its slope hazard maps and some landowners may have received letters from TCC advising that their property is now subject to a ‘slope hazard’. Many landowners are concerned about what this means for them and their property. Legal Basis for Review In short, TCC is required by the Resource Management Act 1991 (RMA) to identify areas potentially at risk from natural hazards and has undertaken this mapping in order to meet its obligations under the Bay of Plenty Regional Policy Statement to manage natural hazard risk and its Infrastructure Development Code. It has always had this obligation and has now undertaken land stability mapping specifically to determine slope hazards as a priority. The RMA states that “the management of significant risks from natural hazards” is a matter of national importance, which decision makers must recognise and provide for. “Natural hazards” is defined in the RMA as including erosion and land slippage. TCC also has a legal obligation to record special characteristics of the land (including land slippage) on a LIM under s44A of the Local Government Official Information and Meetings Act 1987 which aren’t apparent from the City Plan, which includes natural hazard maps of this kind. What Does this Mean for You? Legally, the new maps will have implications for a landowner’s ability to build or undertake any further development of their property. The Building Act 2004 (BA) provides that a council must refuse to grant a building consent for construction of a building or major alterations to a building if the land is subject to (or is likely to be subject to) one or more natural hazards or the building work is likely to accelerate, worsen, or result in a natural hazard. A building consent may only be granted for work on land subject to a natural hazard on the basis that adequate provision is made to protect the land, building work, or other properties from the natural hazard. This means that in order to obtain a building consent, landowners will need to prove that the building work will not worsen, accelerate or cause a natural hazard and you may end up with a notice on the title recording the natural hazard risk. If building consent is granted for land identified as being subject to a natural hazard, the BA requires notice of the building consent and the natural risk to be registered on the property’s record of title. You can ascertain if your property is subject to a slope hazard by using TCC’s mapping tool (Mapi) (as per the image below). If you are intending to purchase a property it is important that you seek legal advice regarding any potential slope hazard that may affect the land. If you require assistance we are able to assist you with any of you due diligence enquiries. If you are concerned about your property being subject to a slope hazard, and require legal advice regarding the same, please feel free to contact us.

The NPS-HPL came into effect on 17 October 2022. Since then, two issues have been identified about its restrictions on non-land-based uses and development. These are: The lack of a clear consent pathway for construction of new “specified infrastructure” (which includes renewable energy, such as solar farms) on highly productive land (HPL) in clause 3.9(2)(j)(i) of the NPS-HPL; and The lack of a clear consent pathway for development and relocation of intensive indoor primary production and greenhouses on HPL. The discussion document can be found here: Potential-amendments-to-the-NPS-HPL-discussion-document.pdf (environment.govt.nz) Consent Pathway for “Specified Infrastructure” The proposed change is to clause 3.9 of the NPS-HPL which states that: 3.9(2) A use or development of HPL is inappropriate except where at least one of the following applies to the use or development… (j) It is associated with one of the following, and there is a functional or operational need for the use or development to be on the HPL: (i) The maintenance, operation, upgrade, or expansion of specified infrastructure: (emphasis added) As currently worded, the NPS-HPL does not provide a clear consent pathway for construction of specified infrastructure on HPL, only its “maintenance, operation, upgrade or expansion”’. This limits the ability to construct new specified infrastructure on HPL at pace and limits certain providers (such as renewable energy generators or installers of fibre who are not requiring authorities). The Government has identified two options to address this issue and has indicated that it considers that the amendment in the second option is necessary. The options are as follows: Maintain the status quo which would allow time for the NPS-HPL to be given effect to in plans, policy statements and consent decisions (this would likely take some time); or Amend clause 3.9(j)(i) to include the word ‘construction’. The amendment suggested in the second option (which is the Government’s preferred option) would provide a clear consent pathway for construction of new specified infrastructure on HPL. Consent Pathway for Intensive Indoor Primary Production and Greenhouses The NPS-HPL also does not provide for a clear consent pathway for development of new intensive indoor primary production and greenhouses. To address this issue the Government has suggested that the NPS-HPL could be amended to provide for a pathway for developing and relocating intensive indoor primary productions on HPL, but has identified that this option is misaligned with the policy objectives of the NPS-HPL. No preference was given to this option over keeping the status quo. The Government is seeking submissions and feedback on the proposed options. Submissions close on 31 October 2023. If you have any queries regarding the proposed amendments to the NPS-HPL or if you wish to make a submission please do not hesitate to contact us.

The Government has launched consultation on potential reforms to the Emissions Trading Scheme (ETS). If adopted, these may significantly affect the benefits of having forest on your land in the ETS. As we’ve previously explained in our crash course on the ETS, the ETS was set up under the Climate Change Response Act 2002. It aims to reduce the amount of greenhouse gas New Zealand emits into the atmosphere by requiring emitters to surrender credits for each tonne of greenhouse gas emitted. However, there are also opportunities for profit. Those who own forest land, or have interest in forest land, can register it under the ETS and earn carbon credits for the carbon dioxide those trees have sequestered. These can then be sold, directly or through markets, to emitters. The current consultation round has been prompted by advice from the Climate Change Commission that the current gearing of the ETS is not leading to meaningful decarbonisation of the economy. A major issue identified is the low price of carbon credits. Carbon credits are currently hovering about the $50/metric tonne (of carbon dioxide) mark, and have historically been in the $40-$90/tonne range. The government has been advised prices are likely to drop further in coming years as an overabundance of forestry increases the supply of credits, reducing incentives to avoid emitting. The government has put forward four options to attempt to drive up the future price of carbon. Their own consultation document identifies the potential issues with each option: Decreasing the total number of carbon credits allowed in the market. In the short term, reduced supply should increase the price. However, modelling suggests this effect may not last in the longer term, still leading to drops in the price. Allowing overseas entities and the government to buy carbon credits, increasing demand. Modelling suggests however that this is unlikely to generate significant interest, potentially doing little to increase prices. Restricting removal activities such as deforestation, or requiring more credits to be bought when land is deforested. Again, this is aimed at increasing demand for units to drive up prices. It is recognised that this is likely to discourage planting of new forests. Removing the ability of emitters to buy carbon credits directly from forest owners, and requiring them to buy from the government instead. The government would then The consultation will also examine whether incentives should be provided to plant native trees for inclusion in the ETS, compared to exotics. Consideration will also be given to whether other forms of carbon capture than forests, such as establishing wetlands, should be included. The consultation round does not close until 11 August 2023. With the election on October 14, and changes in climate change policy likely to follow whatever the result, there is a significant degree of uncertainty as to the future direction of the ETS. Any of the four options being adopted could drastically affect the rate of return on planting land in forest or registering it under the ETS in coming decades. Those considering foresting to cash in on the ETS may wish to wait to see what policy emerges before investing. Holland Beckett Law’s ETS experts and rural and agribusiness specialists will be pleased to assist with any queries you may have about joining the ETS, or your obligations if you already have land in the scheme.

The Environment Select Committee has returned its recommendations in relation to the Natural and Built Environments Bill (NBB) and the Spatial Planning Bill (SPB), the two pieces of legislation that will replace the Resource Management Act 1991 (the Bills). The Environment Select Committee has made a number of changes to the Bills, some more controversial than others, and many which tidy up aspects of the proposed legislation. One of the most significant is a change to the purpose of the Bills, which is now solely focused on upholding te Oranga o te Taiao. Previously the Bills contained dual purposes. This change represents a lessening of focus on use of the environment, in favour of environmental protection, and in all likelihood will increase challenges for developers and other users of resources. Welcome news for those resource users will be the Committee’s recommendation to introduce an objective to the NBB which emphasises the focus of the legislation on upfront planning through plan making processes, to reduce reliance on consenting. The Committee has also recommended amendments to the outcomes of the NBB, and included provisions which address the management of conflicts between outcomes. An example of this would be a development proposal that meets the outcome of ensuring infrastructure is provided in a timely and ongoing matter, but may have effects on indigenous biodiversity, meaning it could be in conflict with the outcome requiring protection of indigenous biodiversity. The conflict provisions state that not all outcomes need to be achieved in all places and at all times, and that achieving outcome compatibility should be favoured over achieving one outcome over another. Whether these provisions assist in practice to resolve conflicting interests when it comes to managing our resources is yet to be seen. Many called through the submissions process for the continued use of certain RMA terminology that has been the subject of significant litigation and is now well understood. Unfortunately, that call has not been answered in relation to the effects management hierarchy provisions in the NBB, which now require residual effects that are “more than trivial” (terminology not used in the RMA) to be offset and compensated for in the context of significant biodiversity areas, and specified cultural heritage areas. In terms of the SPB, the Committee has not recommended any major changes other than the change to its purpose which has been discussed above. Interestingly, the Committee has recommended the removal of the prohibition on considering impacts on scenic views (from private properties) from the SPB, therefore allowing consideration of impacts on scenic views from private properties as part of preparation of regional spatial strategies, but the prohibition has remained in the NBB meaning it won’t be a consideration in regional NBE plans or consenting processes. The process to enacting the Bills is likely to move quite quickly from here, without further public consultation and with limited further amendments. The second reading is occurring this week, followed by a Committee of the Whole House before a final reading prior to royal assent. The future of the Bills is unclear if there is a change in government later this year, with both National and Act refusing to the support the Bills, taking the position that they are worse than the current system in place under the RMA.

The Emissions Trading Scheme (ETS) is an extensive and complicated system with an increasing media presence in climate change related topics. The most recent example being a judicial review filed 9 May 2023 by Lawyers for Climate Action against the cabinet decision made by Minister for Climate Change James Shaw on the ETS. But what is the ETS? Below we provide a breakdown of what the ETS is. The ETS framework The ETS was implemented under the Climate Change Response Act 2002 as a key tool for ensuring that New Zealand meets its domestic and international climate change targets set by the United Nations Convention on Climate Change via the Paris Agreement. The ETS is used as a tool in New Zealand’s emissions reduction plan and its related emissions budget to help NZ meet its net zero greenhouse gas emissions by 2050 (other than for biogenic methane ie. livestock emissions). The ETS regulates the following greenhouse gases: carbon dioxide, methane, nitrous oxide, any hydrofluorocarbon, any perfluorocarbon, and sulphur hexafluoride. The sectors involved in the ETS include forestry, waste, agriculture, synthetic gases, industrial processes, liquid fossil fuel (this includes transport), and stationary energy. It is mandatory or voluntary to join the ETS depending on whether or not an owner or operator satisfies the criteria set out in the Climate Change Response Act 2002. Those who join the ETS are called a “participant”. The functions of the ETS are controlled by the Environmental Protection Authority (EPA). This includes maintaining the ETS Registry, which is publicly available and can be found here. Changes to the ETS can be made by the Ministry for the Environment or the Minister of Climate Change. This depends on what amendments are to be made eg. the Minister of Climate Change updates the price controls of the ETS based on advice provided by the Climate Change Commission. New Zealand Units New Zealand Units (NZUs) are an NZ currency created by the ETS to charge participants for emitting carbon dioxide or greenhouse gases. One NZU is equivalent to one metric tonne of carbon dioxide (or equivalent greenhouse gas) emitted. NZUs can be auctioned, purchased directly from the Government, allocated by the Government (this helps participants meet their obligations) or gifted by the Government for performing activities that remove greenhouse gases from the atmosphere. The NZU market is like a stock market in the sense that the price of an NZU varies depending on how many units are available in the market and current events such as weather events. However, there is an upper and lower limit on the price of an NZU. If one of these limits is reached then either more NZUs are released into the market, or NZUs are removed from the market to stabilise the price. As of publication, the price of one NZU is $52.00. ETS Registry The ETS Registry is like a bank account for holding NZUs. Participants must register with the Registry in order to report and surrender NZUs as part of their ETS obligations. Participants can also trade NZUs between participants through the Registry. However the Registry does not provide a mechanism to cash out NZUs. As part of a participants surrendering obligations, a participant will need to earn or buy NZUs throughout their industries reporting period. Then when it is time for a participant to meet their surrendering obligations, the participant will surrender NZU’s to the EPA that is equivalent to the emissions that the participant released in that reporting period. For example, if a participant released 20 tonnes of greenhouse gas in a reporting period, they will be required to pay 20 NZUs. All sectors have surrendering obligations except for the agriculture industry but, a pricing mechanism is under development for the agriculture industry through He Waka Eke Noa. The Registry used to hold international units from offshore initiatives called ‘Kyoto units’ but as of 2015 these units are no longer permitted in the NZ ETS. Please get in touch if you would like to discuss more about the ETS and how it could affect your business.

The Climate Change Commission (CCC) has released a draft report with recommendations for New Zealand’s second emissions reduction plan, covering 2026-2030. The CCC is one of New Zealand’s key tools in monitoring and limiting climate change effects under the Climate Change Response (Zero Carbon) Amendment Act 2019. The CCC provides independent, expert advice to relevant Ministers and government entities including in relation to the Emissions Reduction Plan, which works in tandem with the emissions budget to steadily reduce New Zealand’s emissions to zero by 2050. The CCC has made recommendations for most industries that are part of the Emissions Trading Scheme (ETS) as well as the ETS itself. The CCC recommendations include, but are not limited to: Advance the agricultural emissions pricing system to enable recognition of a broader range of emissions-reducing practices and technologies, and to incentivise gross emissions reductions in line with the 2050 target. Implement an integrated planning system that builds urban areas upward and mixes uses while incrementally reducing climate risks. Prioritise and accelerate renewable electricity generation build and ensure electricity distribution networks can support growth and variability of demand and supply. Prohibit the new installation of fossil fuel gas where there are appropriate alternatives. Develop incentives to accelerate the uptake of zero emissions commercial vehicles, including vans, utes, and trucks. Rapidly resolve the barriers to scaling up vehicle charging infrastructure. We have focused on the recommendations for the forestry industry as this was the most criticised by the CCC. Forestry In New Zealand there are 10.1 million hectares of forest, of which 8 million hectares is native trees and 2.1 million hectares is exotic trees. Of the exotic production forestry, 90% are Radiata Pine. The report explains that exotic trees are favoured for their fast growing rate and fast sequestration of carbon. However, it states that their sequestration rate declines at around 20 years. In comparison, native trees take longer to grow, but continue sequestration for hundreds of years and therefore are a better option for long-term carbon sinks. The CCC states that an overreliance on carbon storage in forests to reduce gross emissions is risky. Furthermore, that there is a lack of direction and objectives in the amount and type of forests that will achieve the 2050 target. It says that there is an opportunity to articulate the role of forestry and how it will aid in achieving emissions budgets and targets, and to determine what type of forests to plant and where. It raises concerns around the risk of rapid and unmanaged exotic afforestation on productive sheep and beef farmland, and on land that is exposed to erosion and run off. The CCC warns that if exotic forestry continues to be heavily relied upon as a way to meet emissions reduction targets then it will reduce land flexibility and future generations will bear the burden of reducing gross emissions. They also say that if damaged forests are not replaced then carbon dioxide emissions will increase again. Therefore the CCC recommends that the emissions reduction plan sets and implements objectives for the role of forests with respect to emissions mitigation and adaptation, while giving effect to the principles of Te Tiriti o Waitangi. In relation to the ETS, the recommendations also include implementing an amended ETS that separates the incentives for gross emissions reductions from those applying to forestry, and developing an approach that can provide durable incentives for net carbon dioxide removals by forests through to and beyond 2050. If these recommendations are implemented by the Government then there could be far reaching economic effects to the forestry industry. The next steps The CCC finalised advice is due to the Government by 31 December 2023. The Government will then consider the finalised advice before setting the second emissions reduction plan at the end of 2024. The second emissions budget period starts on 1 January 2026. Consultation is open until 20 June 2023 and can be submitted here. Please get in touch if you would like to discuss the CCC recommendations or would like to make a submission.

This article provides an update to our previous article on the National Planning Framework (NPF) dated 19 December 2022. To recap, the Natural and Built Environment Bill (NBE Bill) and the Spatial Planning Bill (SPB) are currently at the select committee stage with the intention of being passed into law in mid-2023. Recently the Ministry for the Environment (the Ministry) provided further details on the RMA Reform including what the NPF is and how it will be implemented. What is the NPF? The NPF will be secondary legislation under the NBE Bill and will be the equivalent of what is currently national direction under the Resource Management Act 1991 (RMA) by carrying though National Policy Statements, National Environmental Standards, National Planning Standards, some regulations made under the RMA, and consolidating it into one document. Only existing national direction which is fit for purpose will be carried over into the NPF. The NPF will provide direction on regional and local decision making, conflict resolution, and planning by supporting the development of Regional Spatial Strategies (RSS) (developed under the SPB) and Natural and Built Environment Plans (NBE Plans) (developed under the NBE Bill). It is likely that the NPF will have topic specific chapters with one chapter (referred to as the ‘overarching layer’) providing a broad system direction that provides for consistent direction under the NPF by: Monitoring the performance of the NPF; Providing a process for engagement with Māori and the community; and Providing further direction on decision making. The NPF will also set environmental limits and targets with the aim of improving the natural and built environment. The first NPF will: Set out measurable biophysical characteristics of the natural environment associated with ecological integrity and human health that needs to be measured as limits and have associated targets; Provide direction on the setting of ‘management units’ (identified geographical areas requiring limits and targets); Direct the process for setting limits in the NBE Plans; and Outline what form requests for exemptions from limits. The NPF must also give effect to the principles of te Tiriti o Waitangi. For example: regional planning committees are required to involve Māori in plan development. Implementation of the NPF The Ministry aims to notify the NPF in the third quarter of 2023 – within six months of the NBE Bill coming into effect. The NPF is currently under development in order to meet this timeline, however if any changes are made to the NBE Bill then they will be reflected in the NPF so the two documents align. Once the NPF is notified a board of inquiry (BOI) process will be undertaken. There will be opportunities for mana whenua and the community to provide input via submissions and a subsequent hearing that is expected to be held in the last quarter of 2023. At the conclusion of the hearing the BOI will provide recommendations to Cabinet which will inform the first finalised NPF in about late 2024. Despite the above, the NPF will not have legal effect until all NBE plans are operative. This is expected to take between 7 and 10 years. During this transition period national direction under the RMA will remain in force, and the NPF will provide direction for the development of RSSs and NBE Plans. The NPF will be developed in stages with the first stage to provide direction for RSSs i.e. providing systems outcomes which are not covered by existing RMA national direction, and requirements and policies for setting environmental limits and targets. Future stages will include direction for the development of NBE Plans Conclusion Currently the Ministry is in the early stages of developing the NPF including the contents of each stage and the timing for amendments. The Ministry welcomes input on what additions should be made to the NPF, and any general feedback on the suggested direction on the NPF and any of its aspects - RM.reform@mfe.govt.nz. These suggestions will be factored into the second stage of the NPF. Alongside regional hui’s in March and April 2023, the Ministry will publish a roadmap that clarifies how future NPF amendments will be carried out as well as how the NPF will inform NBE Plans. You can find the latest guide to the RMA reforms here.

The Natural and Built Environment Bill (NBE Bill) has created a new single integrated framework called the National Planning Framework (NPF). The NPF will be the equivalent of what is currently national direction under the Resource Management Act 1991 (RMA) by carrying though National Policy Statements, National Environmental Standards, National Planning Standards, and some regulations made under the RMA. The NPF will be implemented as regulation and will be considered secondary legislation. The NPF will provide direction and guidance to the Regional Spatial Strategies (RSS) and Natural and Built Plans on the integrated management of the environment in relation to matters of national significance and for which consistency is desirable. This will include directions for the resolution of conflicts about environmental matters, setting environmental limits and targets, and setting strategic direction. The NPF will have the ability to set framework outcomes and policies, framework rules and methods for implementing those outcomes and policies, and the ability to influence allocation methods via the allocation principles of sustainability, efficiency and equity. Environmental limits Environmental limits are a qualitative or quantitative limit set for ecological integrity of the natural environment or to protect human health. Environmental limits must be set for: air, indigenous biodiversity, coastal water, estuaries, freshwater, and soil and could also be set for other aspects of the natural environment. Environmental limits will be set for identified geographical areas (management unit). Some management units may have different environmental limits due to them having different existing environments or levels of harm or stress. Environmental limits will set a minimum biophysical state for a management unit, or the maximum amount of harm or stress to the natural environment that may be permitted - such as maximum contaminant concentrations. Regional planning committees can request that the Minister direct exemptions to environmental limits, but these cannot be for limits that protect human health and are subject to a time limit. Targets Targets are directives that establish steps for improving the environment. They must be set for the mandatory environmental limits, can be set for other matters, and will be at a level that is equal or better to the associated environmental limit. Essentially environmental limits and targets set “environmental bottom lines” by requiring plans to achieve them and preventing the granting of resource consents that are contrary to them. Conclusion The NPF is currently being developed and will be in place by 2025 in time for the development of the first RSSs. This ensures that the NPF has the ability to provide directions for both Plans and RSSs. Submissions on the NBE Bill are open until 5 February 2023. Please get in touch if you would like to discuss the NBE Bill or make a submission.

As of 30 November 2022 the Resource Management Act 1991 (RMA) has been amended to require local government to ‘have regard to’ the National Adaptation Plan (NAP) and the Emissions Reduction Plan (ERP) when preparing or changing a regional policy statement or plan under the RMA. Before then, local government when developing regional policy statements or plans was required to ‘have regard to’ the effects of climate change (such as the effects of more frequent storm events on infrastructure). However, there was no specific context or climate change related plans to have regard to, and local authorities were precluded from considering the effects of greenhouse gas discharges on climate change in both consenting and planning. These preclusions have now been repealed from the RMA, and the RMA has been amended to require local authorities to ‘have regard to’ the NAP and ERP. The Ministry for the Environment (MfE) has released a guidance note to assist local authorities in meeting this latter requirement. Guidance on the National Adaptation Plan The NAP sets long-term adaptation strategies for New Zealand to build resilience for an uncertain future, addressing the effects of climate change. The NAP works alongside the ERP, which is instead focused on reducing emissions or the effects on climate change – known as mitigation. MfE’s guidance note contains some examples for how local government can support NZ’s long term adaptation strategy and goals in RMA planning processes: Reduce NZ’s vulnerability to the impacts of climate change eg. considering the location of activities and people. Encourage the consideration of climate change at all levels eg. developing and implementing long-term adaptation plans. Strengthen NZ’s resilience to climate impacts eg. raising floor levels above projected flood levels. Local government is also encouraged to consider the NAP’s four immediate priorities when setting their own planning priorities: Enable better risk-informed decisions including by referring to up to date government data on climate risks when updating and implementing plans and assessments. Drive climate-resilient development in the right locations including by implementing the NZ Coastal Policy Statement 2010, the National Policy Statement for Freshwater Management 2020 and developing future development strategies or working with major infrastructure providers and developers on long-term plans. Consider adaptation options including by considering or planning for managed retreat, especially for coastal communities. Embedding Government climate resilience strategies and policies. The NAP also recommends using two (at least) of the five Intergovernmental Panel on Climate Change climate change scenarios to assess hazards and risks. It recommends: Use the “middle-of-the-road” scenario (reflects moderate emissions and implementation of current global emissions reduction policies) and the “fossil-fuel intensive development scenario” (reflects high emissions and limited mitigation measures with no global emissions reduction policies) – which some may recognise as “RCP8.5” or “SSP5-8.5”. Screening hazard and risk assessments for coastal impacts up to 2130 – RCP8.5 or SSP5-8.5. Guidance on the Emissions Reduction Plan The ERP is a set of strategies and policies that aids in NZ meeting its emissions budget and the Paris Agreement goal of limiting global warming to below 1.5 degrees Celsius. In this way it is focussed on reducing greenhouse gas emissions or climate change mitigation. There are five guiding principles for the ERP, and MfE’s guidance note sets out how local government can support these principles in planning processes under the RMA. For example, one of the principles is focussed on nature-based solutions and the guidance recommends that these be prioritised and encouraged. It gives examples such as using blue green infrastructure in urban environments, or restoring coastal wetlands or dunes instead of building a sea wall to combat rising sea levels and severe weather events. The guidance note also contains some commentary on how planning under the RMA can support the ERP’s sector plans – which are provided for the transport, energy and industry, building and construction, agricultural, forestry, waste and fluorinated gases sectors. Please get in touch if you would like to learn more about this change and how it could affect you. The guidance note can be found here: https://environment.govt.nz/news/rma-guidance-note-for-local-government-on-the-national-adaptation-plan-and-emissions-reduction-plan/.

The Natural and Built Environment Bill (NBE Bill) has introduced provisions into the NBE Bill to clarify and improve the management of contaminated land, and introduces a framework for the polluter pays principle. In the Resource Management Act 1991 (RMA) there are no sections that regulate contaminated land. Instead regulations for contaminated land are located in the Resource Management (National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health) Regulations 2011 (NES). The NES works in conjunction with the Hazardous Activities and Industries List (HAIL) to identify and manage the use of contaminated land. HAIL is used by local authorities to identify potentially contaminated sites via a list that identifies industries and activities that typically cause contamination. HAIL will be retained and the NES is likely to be retained. Contaminated Land The NBE Bill defines contaminated land as land where a contaminant is present in any physical state in, on, or under the land, and in concentrations that exceeds an environmental limit (which have not yet been set), or pose an unacceptable risk to human health or the environment. This is significantly different to the RMA definition of contaminated land. The RMA defines contaminated land as land that has hazardous substances in or on it that has significant adverse effects on the environment, or is reasonably likely to have significant adverse effects on the environment. The three key differences between the two definitions are: The NBE Bill definition includes contaminants that are under the land; The NBE Bill definition uses standards that could lead to a broader identification of contaminated land; and The use of ‘contaminants’ instead of ‘hazardous substances’ could also broaden what substances could be identified as contaminating/having contaminated the land. Landowner Duties Under the NBE Bill landowners will be required to notify the relevant regional council of their activity or industry listed HAIL activity, notify and provide the relevant regional council with any reports of environmental investigation, and comply with regulations e.g. regional plans. If contamination occurs on the land it is to be managed, investigated and monitored to ensure it does not exceed environmental limits, and does not pose an unacceptable risk to human health or the environment. These new duties on landowners will likely mean that landowners will need to exercise greater due diligence when buying land, and when owning land. Council Duties Regional councils’ duties under the NBE Bill are the same as per the NES (eg. identify HAIL land), but the NBE Bill does require that the HAIL register is to be publicly available and is to include information on the nature, extent and severity of contamination found on the contaminated land. Regional councils are to help landowners and inform them of their duties. Territorial authorities’ duties have been altered to require that the territorial authority consider the effects (environmental effects and if the proposal will benefit the environment) that a proposed development or other activities could have on contaminated land. Territorial authorities must also control the use and development of contaminated land to prevent any adverse effects or likely adverse effects to human health or the environment that result from the proposed development, subdivision, or land use; and mitigate those adverse effects. Polluter Pays Principle The polluter pays principle means that those who produce pollution should bear the costs of managing it to prevent damage to human health and the environment. A polluter means a person who has directly or indirectly, or through neglect or wilful inactivity, caused or allowed a discharge of a contaminant into the environment. The EPA will enforce this principle in consultation with the local authority. The EPA can require that a polluter’s actions are to be prevented, or that the polluter remedy the pollution that causes adverse effects to the environment, or harms human health and the environment. Local authorities will execute enforcement orders as per the compliance and enforcement sections of the NBE Bill. Costs are to be determined as the actual and reasonable costs that the authority or EPA has incurred in taking action. If the EPA is unable to recover costs from the polluter, then the EPA can recover costs from the local authority. It is currently unclear how the polluter pays principle will work in practice. Issues are likely to arise when it comes to establishing the polluter, or when payment is required for polluting. Submissions on the NBE Bill are open until 5 February 2023. Please get in touch if you would like to discuss the NBE Bill or make a submission.

The Spatial Planning Bill (SPB) is New Zealand’s first formal framework for spatial planning and requires central government, local government and Māori to work together as a regional planning committee (RPC) to develop a regional spatial strategy (RSS). As an overview, the SPB works in tandem with the Natural and Built Environment Bill (NBE Bill) to create a single integrated system with shared definitions, outcomes, functions, and processes. The SPB integrates the functions of the NBE Bill, Land Transport Management Act 2003, and the Local Government Act 2002 to develop long-term RSS that set out a vision and objectives for regional development to occur over at least a 30-year-plus time frame across New Zealand. Regional Spatial Strategy A RSS is the integration of multiple local government planning documents into one planning document that provides a vision and objectives for regional development over a 30 year time-frame, sets out priority actions to achieve those visions and objectives, and provides strategic direction to the RPC on various matters including what areas are suitable for a range of purposes. Accompanying the RSS will be an implementation plan and possibly an implementation agreement which will all primarily be developed by the RPC. The RSS must be consistent with, or give effect to the National Planning Framework under the NBE Bill. Each geographic region will have one RSS, eg. Bay of Plenty, which will be reviewed by the RPC every nine years or in certain circumstances such as significant change in the region. Accompanying the RSS will be an implementation plan which sets out how priority actions in the RSS will be undertaken and monitored. The implementation plan must be adopted within six months after adopting a RSS and must be reviewed every three years, or when there is a significant change to the RSS. An implementation agreement may accompany the RSS and implementation plan by setting out a programme of activities that parties such as central or local government intend to carry out to deliver or regulate a priority action from the RSS. An implementation agreement is not enforceable, and must be entered into by two or more people who have a role in the delivery or regulation of a priority action. Regional Planning Committee The RPC’s role is to develop their region’s RSS and will consist of a minimum of six members from; local government, local hapū, iwi and Māori (minimum of two), and central government. Community and key sector group involvement and engagement will be developed by each RPC. The SPB sets out a step by step process for the development of an RSS with an emphasis on transparency between the RPC and the RSS eg. the RPC must publicly release how they reached their decision and what information they relied on. There is also the introduction of early engagement with interested parties (ie. private infrastructure providers and operators, non-government organisations, government organisation etc.) and the public on what the RSS should cover and what key issues and opportunities the RSS should focus on. The RPC must follow various conditions when developing the RSS such as producing draft reports which are released to the public to show what has gone into developing the RSS. What the RPC must have regard to, or particular regard to is similar to what is currently required to develop current local planning documents, eg. relevant Government policy statements, but there are new matters that the RPC must not have regard to including effects on scenic views from private properties or land transport assets that are not stopping places, or effects on the visibility of commercial signage or advertising. Once the drafting of the RSS is completed, the RSS will be notified for public submissions and amendments will subsequently be made based on feedback. Submissions on the SPB are open until 5 February 2023. Please get in touch if you would like to discuss the SPB or make a submission.

It’s just on two weeks since the new RMA was revealed with the introduction of the Natural and Built Environment Bill (NBA). An early look at consenting regimes under the NBA indicates that while some aspects are similar to the RMA, some aspects are very different. We highlight some of these differences below. Activity status – reduced from 6 to 4 The categories of resource consent activity status are reduced from 6 to 4 (to permitted, controlled, discretionary, and prohibited) which sees the removal of restricted discretionary and non-complying activities. However, there is a change to controlled activities, as there is a limited discretion to decline resource consent for controlled activities in accordance with the relevant provisions of the National Planning Framework (NPF) or Natural and Built Environment Plans (NBE Plans) (whichever applies) and the limited discretion conferred by those provisions. Notification Questions of notification will only fall to the consent authority if the NPF or NBE Plan do not cover notification. The presumptions are that For discretionary activities, there will be public notification unless the NPF or NBE Plan state that no public/limited notification is required. For controlled activities, there will be no public notification unless the NPF or NBE Plan state otherwise. That said, the notification tests appear on their face to remain complex and open to litigation. Under the NBA however, notification challenges can be heard by the Environment Court rather than having to go to the High Court as is currently the case. Decision making Proposed s223 of the NBA is similar in structure to s104 of the RMA but there are some key differences. For example, the NBA section is not subject to the purpose of the NBA, which is no doubt designed to avoid the interpretive issues caused by making s 104 of the RMA “subject to Part 2”. In terms of new considerations, the NBA brings in: The likely state of the future environment as specified in an NBE Plan, a RSS, or the NPF; Any prior non-compliance by the applicant and for which enforcement action has been taken under the NBA. The NBA specifically provides that decision makers must not have regard to: Any effect on scenic views from private properties or land transport assets that are not stopping places; Any adverse effect arising from the use of the land by people on low incomes, people with special housing needs, or people whose disabilities mean they need support or supervision in their housing. It looks like the latter clause would have ruled out the ability of the Rotorua community to oppose the emergency housing resource consent applications by the Ministry of Housing and Urban Development which has featured heavily in the news in recent weeks and is awaiting a decision before the end of 2023. Consent duration The standard consent duration provision in the NBA is similar to the status quo – providing for a maximum term of 35 years. However there are some very notable exceptions to this. There is a maximum 10 year duration for water related activities (water permits, discharge permits). There are two ways around this: This presumption can be amended through an NBE Plan update; or If certain provisos are met, some activities can access longer consent terms. The applicant must seek a longer term in its resource consent application, and qualify as an activity which can access the longer consent term. An example of an activity listed for this is the construction, upgrading or maintenance of state highways. Other consent processes The NBA carries over consent processes for direct referral and proposals for national significance. It also carries fast-track consenting into the NBA, but provides a list of what projects can access fast-track consenting. Those projects must still apply for approval for fast tracking so access to a fast-tracked process is not automatic. Transitional provisions Unfortunately, it looks as though not all relevant provisions are included in the NBA. The Ministry for the Environment’s ‘Overview’ document released with the NBA states that shorter-term consents will be issued under the RMA for freshwater takes and discharges during transition to the NBA - these consents must expire within three years of the relevant NBE Plan being notified. It also states that many detailed commencement, savings and transitional provisions are not included in the NBA. It remains to be seen how those provisions will be articulated so that the public can comment on them, particularly given the short timeframe for submissions which has now been set – these close on 5 February 2023. Please get in touch if you would like to discuss the NBA or make a submission.

The Natural and Built Environment Bill (NBA) heralds the end of a traditional first-in first-served approach to resource allocation, particularly in respect of freshwater. The NBA introduces three resource allocation ‘principles’ – which are sustainability, equity, and efficiency. The National Planning Framework (NPF) can give further detail on the meaning of these principles, and they are a consideration when making directions concerning allocation in the NPF. Regional planning committees must also have regard to the resource allocation principles when making allocation rules in the Natural and Built Environment Plans (NBE Plans). In general terms, the NPF can give direction on allocation matters, including methods for allocating natural resources such as by consensus, the standard consenting process, the affected application process, auction or tender. Of these, most are self-explanatory in meaning, although consensus is not explained (as between whom), and the “affected applications process” sounds like a reference to ‘affected persons’. The affected applications process is in fact a process which enables a comparative merits based assessment of competing applications. In these cases, the value of the investment of the existing consent holder is not a consideration for decision makers when considering applications to renew resource consents, and the priority renewal provisions will not apply. Freshwater specifically With respect to freshwater specifically there are further provisions to be aware of: A Freshwater Working Group is to be established to make recommendations on freshwater allocation (including engagement between the Crown and iwi/hapū). It is to report to the Minister for the Environment by 31 October 2024 who must then present a response to the House of Representatives within 6 months. This process may lead to an allocation statement on issues relevant to the allocation of freshwater if agreed between the Minister and relevant iwi/hapū. This can happen at varying spatial levels, and will inform the relevant NBE Plan. The NPF must not use a market-based allocation method for the taking, diversion or use of freshwater. The NBE Plan must include 1 or more allocation methods for the taking, diversion or use of freshwater (and anything else the NPF directs). Provision is made for shorter term freshwater consents so as to create greater opportunity for NBE Plans to effect change. The allocation provisions are designed to assist Māori and others with underdeveloped land to access water. Issues regarding Māori rights and interests in freshwater remain live and are not affected. In what seems a novel statutory drafting technique, the NBA states that “any rights or interests in freshwater or geothermal resources are preserved, consistent with assurances given by the Crown to the High Court in 2012, and recorded in New Zealand Māori Council v Attorney-General [2013] NZSC 6, [2013] 3 NZLR 31 at [145]”. The Ministry for the Environment’s ‘Overview’ document released with the NBA states that shorter-term consents will be issued under the RMA for freshwater takes and discharges during transition to the NBA - these consents must expire within three years of the relevant NBE Plan being notified. These transitional provisions are presumably designed to integrate with the above allocation matters relating to freshwater. The Overview also states that many detailed commencement, savings and transitional provisions are not included in the NBA, so those with freshwater takes will need to stay abreast of developments affecting freshwater consents and allocation. Submissions on the NBA are open until 5 February 2023. Please get in touch if you would like to discuss the NBA or make a submission.

As part of the Government’s goal to reduce fluorinated gases including hydrofluorocarbons, perfluorocarbons and sulphur hexafluoride – the Government is currently consulting on a product stewardship scheme for refrigerants such as heat pumps and refrigerators, and prohibiting the import and sale of equipment pre-charged with fluorinated gases when alternatives are available. Fluorinated gases have a global warming potential (GWP) hundreds or thousands times greater than carbon dioxide, and make up about 2 percent of New Zealand’s annual greenhouse gas (GHG) emissions. GWP is determined for every greenhouse gas by measuring how long 1 tonne of the gas will take to be absorbed by the earth over a given period of time. The higher the GWP is, the longer it stays within earth’s atmosphere and warms the planet. Refrigerant Product Stewardship Under New Zealand’s emissions reduction plan, one of the actions was the introduction of a mandatory product stewardship scheme for refrigerants. Currently New Zealand has a voluntary scheme called Refrigerant Recovery, however the recovery rates are lower than when industries are required to participate. Furthermore in July 2020 refrigerants and other synthetic GHG’s were made priority products under the Waste Minimisation Act 2008 (WMA), which requires a product stewardship scheme to be developed. Those that will likely be involved in the scheme include, but are not limited to: refrigerant importers; vehicle importers; refrigerant manufacturers; and technicians and engineers. The target for the product stewardship scheme is for 25,000 kilograms of refrigerants to be collected in the first year, and progressively increase to 50,000 kilograms by the fifth year. Prohibiting Imports on Pre-Charged Equipment As stated in the emissions reduction plan, the Government is planning to prohibit the import and sale of equipment pre-charged with fluorinated gases. The aim of the prohibition is to ensure that the use of high-GWP refrigerants do not continue once alternatives are available. The prohibition will likely be established through the Ozone Layer Protection Act 1996. The prohibition will be phased in to ensure that those who currently own high-GWP refrigerants can continue using them, but once the product is at the end of its life they will need to use low-GWP refrigerants. The key dates for the prohibition of certain refrigerant products are: 1 January 2025, 1 January 2028, and 1 January 2032. Consultation You can learn more about the consultation, and lodge a submission, at https://consult.environment.govt.nz/waste/f-gases-and-refrigerants/. Consultation closes 18 December 2022. Please feel free to contact us to learn more about the proposal and how it could affect you or your business.

After much anticipation, the Government has now unveiled two of the three new replacements to the Resource Management Act 1991 (RMA)- the Spatial Planning Act (currently the Spatial Planning Bill) (SPA); and - the Natural and Built Environment Act (currently the Natural and Built Environment Bill) (NBA)). The third bill is the Climate Adaptation Act which will be introduced to Parliament at a later date and is expected to become law in 2024. The NBA is the core piece of legislation and will work in tandem with the SPA as a single integrated system with shared definitions, outcomes, functions, and processes. We set out some of the key system changes below. Natural and Built Environment Act The NBA bill updates the RMA’s sustainable management purpose by replacing it with two limbs – the first is about the way that use, development and protection of the environment is enabled (including in a way that complies with environmental limits and targets), and the second is to recognise and uphold te Oranga o te Taiao. Te Oranga o te Taiao is a te ao Māori concept that is defined as: the health of the natural environment; and the essential relationship between the health of the natural environment and its capacity to sustain life; and the interconnectedness of all parts of the environment; and the intrinsic relationship between iwi and hapū and te Taia. The lists of matters in ss 6 and 7 of the RMA are gone and replaced with a list of decision-making principles and system outcomes, which are intended to shift the focus from managing adverse effects to promoting positive outcomes. As there is no hierarchy between outcomes, this leaves decision-makers to determine how they are to be implemented and could lead to the familiar dilemma in how to balance competing priorities. The avoid, remedy, mitigate direction has been replaced with a direction to avoid, minimise, remedy, offset, or provide redress, along with introducing an effects management framework in the legislation for some situations. The concept of “trivial” effects has also been introduced – adverse effects are defined to exclude trivial effects, and activities creating more than trivial adverse effects on specified nationally important places or highly vulnerable biodiversity areas can only be considered for approval if an exemption applies. The NBA Bill elevates the importance of te Tiriti o Waitangi by replacing the “take into account” direction in the RMA with a “give effect to” direction. It introduces a National Planning Framework (NPF), which will consolidate existing national direction, as well as some new functions. It is intended to provide directions on the integrated management of the environment, and will be rolled out in stages. The first stage will be to transition the policy intent of existing national direction (including the national policy statements for freshwater management and highly productive land), along with the medium density residential standards introduced in 2021. It will also introduce new content on infrastructure and natural hazards. Regional planning committees will be established for each region to prepare a regional spatial strategy and a natural and built environment plan – reducing the number of plans from over 100 under the RMA to 15 under the NBA. These committees will have Māori and local authority representatives, along with central government representatives in relation to regional spatial strategies. Local authorities will still implement and administer the plans, which will have a similar function to regional policy statements and regional and district plans. Local authorities will continue their role as consent authorities but the activity statuses have been reduced to permitted, controlled, discretionary and prohibited. Spatial Planning Act Regional spatial strategies will provide long-term, high level, and strategic direction for integrated spatial planning. The SPA provides for this mandatory spatial planning, along with promoting the integration of various pieces of legislation including the NBA, Local Government Act 2002 and the Land Transport Amendment Act 2003. The relationship between the NBA and SPA, along with their planning instruments, is shown as:   Transition Many detailed transitional provisions have not been included in the bills but policy decisions have been made by the Government. There will be an approximate ten year transition period until all new regional spatial strategies and natural and built environment plans are in force. During this period, new national direction under the RMA can continue to be developed, with a requirement to consider the desirability of consistency with the NBA. The RMA national direction will continue to direct RMA plans and policy statements, and transitional decision making – meaning that the freshwater planning process will continue. However, during this period shorter-term consents will be issued for freshwater takes and discharges under the RMA, which will expire within three years of the relevant NBE plan being notified. There will be some exemptions to this, including for some renewable electricity generation activities. Parts of the NBA will come on line at different times, to replace the RMA using a staged approach. A staged approach to planning is anticipated, with three regions going first to regional spatial plans followed by another group 12 months later, which will be followed by the development of natural and built environment plans. The RMA system will start dropping off as the new plans come on line. Some provisions will have immediate effect. Next Steps Once the House has debated the bills, it will decide if the bills should progress to the Select Committee stage and the public will then have an opportunity to make submissions. The Government aims to pass the bills before the end of this parliamentary term. Please get in touch to learn more about the new bills and how it could affect you or your business.

The Water Services Act 2021 (“the Act”) has become a key consideration for rural water supply arrangements. The Act is being implemented in a staged manner, and some additional requirements have just come into effect. While its main purpose is focussed on safe drinking water, it also sets out obligations with respect to wastewater and stormwater networks, and was introduced as the second of three pou (pillars) of the “Three Waters Reforms”. The first pou of the Three Waters Reforms was setting up Taumata Arowai as the new water services regulator. Taumata Arowai is a Crown entity with a series of functions and powers relating to drinking water, wastewater and stormwater – including developing drinking water standards and enforcing the legislation. The third and final pou of the Three Waters Reforms will be transferring the management of large water supplies from local authorities to four new regional entities. Duties on drinking water suppliers The Act places extensive duties on drinking water suppliers, which are broadly defined in the Act and include a “person who reasonably ought to know that the water they are supplying is or will be used as drinking water”. Its reach is broad and will capture people that supply bore water to their neighbours, including where the supplier knows it is being used for drinking water even though it is only authorised for irrigation. New Water Quality Assurance Rules came into effect on 14 November 2022 and can be found here. These rules set out minimum requirements for drinking water suppliers in relation to their duty to supply safe drinking water and ensure that it complies with the new Drinking Water Standards. The rules do not apply to bottled water or water used for industrial or agricultural purposes, and only need to be met where a drinking water supply is operational. For example, a bore that is only required during the summer period would not need to meet the rules during winter. The new Drinking Water Standards are based on guidelines set by the World Health Organisation and also came into effect on 14 November 2022. These standards can be found here and set maximum acceptable values for the concentration of microbiological (eg. E. coli), inorganic (eg. lead), organic (eg. herbicides and 1080), and radiological (eg. radon) substances in drinking water. Drinking water suppliers also have a duty to take all reasonably practicable steps to comply with Aesthetic Values (such as appearance, taste or odour) – which also came into effect on 14 November 2022 and can be found here. The Act also includes a general duty to ensure drinking water is safe (up until the point of supply), duties to provide sufficient quantity of drinking water and to protect against the risk of backflow, and obligations around notification and reporting. Drinking water suppliers must register their supply with Taumata Arowai and have a Drinking Water Safety Plan in place, which will include a Source Water Risk Management Plan to protect the surface water or groundwater source from contamination. Alternative options Taumata Arowai can issue acceptable solutions, which provide an alternative “ready-made” means of compliance for drinking water suppliers. Acceptable solutions will contain requirements and obligations for specific situations, and must be met in their entirety if they are to be relied upon for compliance with the Act. Acceptable solutions have been developed for roof water supplies, spring and bore water supplies, and mixed use rural water supplies – and include solutions like UV treatment systems. These can be found here. Drinking water suppliers can also apply for an exemption from some of the Act’s requirements. However there are criteria that must be met for an exemption to be granted, and they will be subject to public consultation. Resource consenting The Act made amendments to the Resource Management Act 1991, including by inserting a new consenting requirement for activities affecting drinking water supply source water (s 104G). Consent authorities are now required to have regard to the actual or potential effect of a proposed activity on the source of a registered drinking water supply, and any risks to that source that are identified in a Source Water Risk Management Plan prepared under the Act. Consents also cannot be granted if they are contrary to a wastewater environmental performance standard made under the Act. Timeframes The Act’s requirements will be implemented in a staged manner: Suppliers that were already registered with the Ministry of Health (which includes public supplies) have until 15 November 2022 to comply. However, in relation to the rules and standards Taumata Arowai has stated that it may be difficult to implement sampling and compliance reporting by then so they expect suppliers to comply with the new reporting requirements by 1 January 2023. Existing unregistered suppliers (such as small rural schemes) have until 15 November 2025 to register, and until 15 November 2028 to comply. New suppliers will need to ensure that they are registered and have a Drinking Water Safety plan in place before commencing supply. Takeaway The duties and obligations that we have described are extensive but not exhaustive, and have implications for both property arrangements and resource consenting processes. The Act creates an added level of complexity and cost to what could otherwise be a simple water easement arrangement between neighbours. If you have a bore on your property or you supply drinking water to neighbours, then you will need to ensure that you are complying with the Act’s requirements. Please feel free to contact us to discuss how this Act may impact you, your property or your easements.

The Government is currently consulting on a new pricing scheme for agricultural emissions. The agricultural sector is currently excluded from the Emissions Trading Scheme (ETS) and contributes to about half of New Zealand’s greenhouse gas emissions. The Primary Sector Climate Action Partnership – He Waka Eke Noa – is a partnership between the Government, Māori and the agriculture sector that was created to develop a pricing system for on-farm emissions by 1 January 2025. If an alternative pricing system is not implemented by 1 January 2025 then the NZ ETS pricing system will apply to the agriculture sector. The Proposals for the Agriculture Pricing System He Waka Eke Noa’s recommendations (developed in partnership with farmers) is for a farm-level split-gas pricing system for agricultural emissions. The Government supports this pricing system but has proposed some changes, taking into account advice that it has received from the Climate Change Commission. The Government’s modified version of the proposal includes the following elements: Business owner(s) of farms above a specified fertiliser use (40t synthetic nitrogen fertiliser) or stock number threshold (550 stock units (sheep, cattle, deer) or 50 dairy cattle) have the legal responsibility to report emissions. Reporting would involve inputting farm area, stock reconciliation, livestock production data and synthetic nitrogen fertiliser use into a centralised calculator to determine emissions numbers for methane and long-lived gases. Separate levy prices for long lived gases (i.e. carbon dioxide) that are set annually and linked to the NZU price, with a proportional discount. Separate levy and unique prices for biogenic methane, which are reviewed periodically (annually or three yearly) based on progress against emissions targets and advice from the Climate Change Commission. Revenue raised from the pricing system would fund incentive payments, which will be available for a range of mitigation technologies and practices, to reduce emissions. The Government is also considering an alternative pricing option where biogenic methane emissions (by-product of animals and plants) are priced by a market-based system and long-lived gases are priced in parallel with the NZ ETS. If the farm-level pricing system is implemented, it will be reviewed in 2030 to ensure it is fit for purpose and appropriate. Consultation Within this consultation, the Government is also consulting on: An interim processor-level levy as a transitional step if the farm-level levy is not ready by 2025. A proposed pathway for how sequestration (capturing and storing carbon) from on-farm vegetation (e.g., shelter belts, permanent regenerative bush) should be recognised in the interim, with a view to it being included in the NZ ETS. Options for how emissions from the application of synthetic nitrogen fertiliser could be priced, either within the farm-level levy and included in the on-farm emissions bill, or via the NZ ETS at manufacturer and importer level. The Government is proposing a penalties and offences regime as well as enforcement mechanisms to ensure compliance. There is currently no further information on what offences could be, what enforcement would involve, or what the penalties could be. Timeframe By the end of December 2022 the Minister of Agriculture and Minister of Climate Change will publish a report on an alternative pricing system. In 2023, subject to cabinet decisions, a Bill will be introduced to implement the agricultural emissions-pricing system and initial regulations will be developed during 2024. By 1 January 2025 the agriculture emissions pricing system will take effect. Summary The agriculture sector contributes around half of New Zealand’s total emissions including most of New Zealand’s nitrous oxide (produced by micro-organisms reacting to nitrogen introduced to the soil through animal by-product, fertiliser, and legumes such as clover), and biogenic methane. Requiring this sector to pay for their emissions will be challenging, and has already proven to be very contentious. You can learn more about the proposed pricing of agricultural gas emissions, and register to webinars on the proposal at https://consult.environment.govt.nz/climate/agriculture-emissions-and-pricing/. There will be further opportunities for consultation on aspects of the agriculture emissions scheme such as cost recovery, incentive payments, and penalties and offences. Submissions close 18 November 2022. Please feel free to contact us to learn more about the proposal and how it could affect you or your business.

The Government is seeking feedback on changes to how the National Environmental Standards for Plantation Forestry (NESPF) manage plantation and exotic carbon forests. Under the Emissions Trading Scheme (ETS) the forestry sector can earn (and then sell) carbon credits by planting exotic forests, which absorb carbon dioxide and contribute to meeting emissions reduction targets. This provides an economic incentive to plant more exotic forests, and the increasing price of carbon credits is driving rapid growth in afforestation. The NESPF sets regulatory controls on plantation forestry under the Resource Management Act but does not currently apply to exotic carbon forests. Essentially, plantation forests are forests that have been established for commercial purposes whereas exotic carbon forests are non-indigenous forests that are not harvested below a certain level of canopy cover – also known as permanent forests. These forests are planted to absorb carbon rather than for harvesting. The Government has raised concerns about the growth in exotic forests causing adverse environmental effects, including by converting farm land to forestry, reducing habitat for indigenous species, and increasing wildfire risk and the spread of wilding pines. To address these concerns, the Government is proposing the following changes to the NESPF: Expanding its coverage to exotic carbon forests. Controlling the location of afforestation for both types of forests. Improving wildfire risk management for both types of forests. Addressing some findings from the Year One Review of the NESPF. The latter includes enabling foresters and councils to better manage adverse effects in relation to wilding pines. Both plantation forests and exotic carbon forests have a risk of wilding pine spread however, as it stands, while both are subject to the requirements contained in regional pest management plans, only plantation forestry must meet the wilding pine requirements set out in the NESPF. You can review the proposed changes and lodge a submission at: National direction for plantation and exotic carbon afforestation | NZ Government (mpi.govt.nz). Submissions close 18 November 2022. Please do not hesitate to contact us for advice around what these changes mean for you or your business.

The National Policy Statement for Highly Productive Land (NPS-HPL) has come out strongly in favour of protecting productive land and looks set to hold the line on this except in limited circumstances. The NPS-HPL will sit alongside other national policy statements such as the National Policy Statement for Freshwater Management and the National Policy Statement on Urban Development. It will be transitioned into the two new Acts replacing the Resource Management Act 1991 – the Spatial Planning Act and the Natural and Built Environments Act. For the primary sector, the NPS-HPL provides certainty into the future as it ensures that the most fertile and versatile land remains in the hands of farmers and growers and cannot be utilised for urban growth. For other sectors, the NPS-HPL will become a key consideration in consenting processes involving the rural environment. The NPS-HPL takes effect from 17 October 2022 and requires local authorities to protect and manage HPL to secure its availability for growing vegetables, fruit and other primary production. Regional councils must map HPL within the next three years in collaboration with territorial authorities and tangata whenua. The identification of HPL depends on the Land Use Capability (LUC) system, which classifies land in accordance with its capability to sustain productive use (with Class 1 being the most suitable). A New Zealand wide LUC map can be found here: https://ourenvironment.scinfo.org.nz/maps-and-tools/app/Land%20Capability/lri_luc_main. In general, land will be mapped as HPL if it: Is in a general rural zone or rural production zone; Is predominantly LUC 1, 2, or 3 land; Forms a large and geographically cohesive area; and Is not identified for future development at 17 October 2022. Until that mapping exercise is undertaken, land will be treated as HPL if it is zoned general rural or rural production and is LUC 1, 2 or 3 – unless it is identified for future urban development or subject to a notified plan change to rezone it to urban or rural lifestyle when the NPS-HPL comes into force. The NPS-HPL then sets strict standards for how HPL can be used. Essentially, any rezoning, subdivision, or use or development of HPL must be avoided unless it can fit within one of the limited exceptions. For use and development, these exceptions include that the activity has a functional or operational need for the use or development to be on HPL and is associated with the maintenance, operation, upgrade, or expansion of specified infrastructure. While “specified infrastructure” will encompass renewable electricity generation, there is notably no specific provision for the “construction” of this infrastructure, which means that the restrictions in the NPS-HPL will be a key consideration for developers of this infrastructure when selecting project sites. The NPS-HPL can be found here: https://environment.govt.nz/publications/national-policy-statement-for-highly-productive-land/. If you have any queries regarding the NPS-HPL and what this means for you or your business please do not hesitate to contact us.

New Zealand’s first National Adaptation Plan (the Plan) has now been published. This Plan is required under the Climate Change Response Act 2002 and responds to the risks identified in the National Climate Change Risk Assessment 2020, which included risks relating to indigenous and coastal ecosystems, communities, the economy, and the built environment. At a broad level, the Plan outlines New Zealand’s long-term strategy for adapting to the effects of climate change for the 2022-2028 period. The Plan will work alongside the Emissions Reduction Plan, and together these plans manage New Zealand’s response to climate change. The Plan includes a series of objectives for addressing climate change risks, and action points to achieve those objectives. These action points are described as “critical actions”, less urgent “supporting actions”, or future work programmes and are grouped into the following broad topics: enabling better risk-informed decisions; driving climate-resilient development; adaptation options; natural environment; homes, buildings and places; infrastructure; communities; and the economy and financial systems. There are many action points contained in the Plan however some examples of the critical actions are: Develop guidance for assessing risk and impact on physical assets and the services they provide; Establish an initiative for resilient public housing; Reduce and manage the impacts of climate hazards on homes and buildings; Develop and implement the Waka Kotahi Climate Adaptation Plan; Strengthen the fisheries management system and support the aquaculture sector to sustainably grow; Deliver biosecurity actions to protect our indigenous ecosystems and economy from invasive species; and Modernise the emergency management system. Different groups have different roles to play in adapting to the effects of climate change, and the roles of central government, local government, the private sector, and individuals are discussed below. Role of central government The central government will adopt a leadership role and act in partnership with the local government. This role will include establishing regulatory and institutional settings that support adaptation, increasing the accessibility of information and data to allow others to make informed decisions on preparing for climate change effects, and managing investments and risks to its own assets such as roading, schools and hospitals. Role of local government Local government will be at the heart of risk management due to the valuable knowledge that they hold on the occurrence and effect that hazardous events have on their local area. Local government’s role will include helping their communities understand climate change and responding to issues with their community. They will need to be aware of inequity to ensure that no one particular community or demographic is at a higher risk of displacement or poor wellbeing. They also have responsibilities relating to natural hazards, civil defence and emergency management, and local planning, and will need to improve the resilience of their own infrastructure. Role of Private Sector The private sector, particularly those that own lifeline utilities or are based in the financial sector, will need to be aware of risks to their assets, portfolios and liabilities, and whether they have invested enough in resilience and adaptation to combat climate change effects. Such investment can both reduce risks, and also create new opportunities such as by benefitting from new markets and innovation. Role of individuals Individuals’ daily lives are increasingly being affected by climate change effects, such as through supply chain issues, power cuts, and evacuations. Individuals will require information to be available that outlines how climate change risks could impact them, to allow them to make informed decisions. Such decisions include creating evacuation plans and protecting their assets. In relation to protecting their homes this could mean building a seawall, placing a house on stilts, re-locating the home, or avoiding at-risk areas all together. Conclusion Climate change is a continuous process and therefore the National Adaptation Plan will be updated every six years to ensure climate change risks are being addressed. The Plan can be found here: Aotearoa New Zealand\'s first national adaptation plan | Ministry for the Environment. Please feel free to contact us if you would like to know more about the Plan and how it could affect you or your business.

Further to our note in September 2021 about the proposed changes to the intensive winter grazing (IWG) regulations, these have now been finalised. This article outlines what the amendments to the IWG regulations mean for farmers. As we are in the midst of winter, farmers are altering their farm practices to combat feed shortages that come with the winter months. For many farmers, this means incorporating the use of IWG. IWG is the grazing of livestock on an annual forage crop at any time in the period that begins on 1 May and ends with the close of 30 September the same year. When done properly, IWG is an effective tool to ensure feed longevity. However, when done poorly, it can have serious negative effects on animal welfare and the environment. IWG regulations were introduced in the National Environmental Standards for Freshwater 2020 (NES) as a part of the Essential Freshwater package. This package introduced a range of rules and regulations designed to protect freshwater and control high-risk practices. Following an outcry from the rural community as to the practicality of the intensive winter grazing regulations, the Government released amendments to the regulations in April 2022. You can view the amendments here. The amendments were made under the guise of increasing practicality for farmers while effectively lifting environmental outcomes. Key changes The amendments seek to help protect the soil and waterways by placing greater importance on paddock selection. The key changes relate to: Resowing annual forage crop paddocks; Pugging; Protecting and not cultivating or grazing critical source areas; and Using land with a slope of more than 10 degrees. Resowing annual forage crop paddocks The set resowing date has been removed and replaced with a standard requiring the establishment of vegetative ground cover as soon as practicable after grazing. Pugging The amended regulations have had specific depth and area requirements around pugging removed. These have been replaced with a standard requiring reasonable practical steps to minimise adverse effects of pugging on freshwater. Protecting and not cultivating or grazing critical source areas The amended regulations focus on protecting critical source areas from annual forage crop cultivation. Anyone undertaking intensive winter grazing activities must protect critical source areas by ensuring all critical source areas: Are left ungrazed; Have vegetation as ground cover; Are not used to grow forage crops. Using land with a slope of more than 10 degrees The regulations have been changed in relation to slope from a mean slope of 10 degrees to a maximum slope of 10 degrees. Permitted Activity Requirements Applying the above amendments, farmers can practice IWG as a Permitted Activity if the activity meets the following conditions: The area used for IWG does not exceed 50ha or 10% of the farm, whichever is greater; and The total area used for IWG is not greater than the maximum area used for IWG in any single season between 1 July 2014 and 30 June 2019; Livestock are kept 5m from the bed of any river, lake, wetland, or drain, regardless of whether there is any water in it at the time (as per the Stock Exclusion Regulations); The land used for IWG has a maximum slope of less than 10 degrees; All reasonably practicable steps are taken to minimise the effects of pugging; Vegetation is established as ground cover as soon as practicable after grazing; All critical source areas are left ungrazed, have ground cover and are not used to grow forage crops. If the IWG activity is unable to meet any of the above requirements, the farmer will require a new IWG consent. Timeframes The regulations introduced a reference period which is the period from 1 July 2014 and ended 30 June 2019. Any new IWG activity, ie. IWG expanding the area above the maximum used in the reference period requires a resource consent now. If you think you need a resource consent for expanding your IWG activity, contact us and we can assist you in applying for a retrospective resource consent. The amended regulations come into effect for existing IWG activity from 1 November 2022. While they do not impact the 2022 winter grazing season, those planning IWG for the 2023 season onwards, will need to become familiar with the IWG regulations and requirements. For a lot of farmers, planning for next year’s winter starts now. Conclusion As stated above, while IWG is a valuable management tool, it can be a risky activity and the environmental risks of IWG require proactive and practical management. We anticipate that even with these amendments, several farmers will not be able to undertake IWG without obtaining a resource consent. This will be particularly true for farmers wanting to undertake IWG on slopped land. Failure to comply the IWG regulations, or the conditions of a consent is an offence and may result in enforcement action being taken by the relevant regional council Farmers that find themselves in breach of the IWG regulations. Our rural law team can provide you with advice on how to interpret the regulations to ensure that your IWG practices are compliant. We are also able to provide you advice on the regulatory process should you find yourself in some strife.

The Ministry for the Environment has released an exposure draft of the National Policy Statement for Indigenous Biodiversity (NPSIB). The draft NPSIB was amended following a public consultation process held between November 2019 and March 2020, during which over 7000 submissions were lodged. It provides national direction for maintaining and protecting indigenous biodiversity, and contains three fundamental concepts: Te Rito o te Harakeke: this concept refers to the need to maintain the integrity of indigenous biodiversity and includes recognising its intrinsic value and mauri, and its relationship and connectivity to people and the wider environment. Policy 1 requires indigenous biodiversity to be managed in a way that gives effect to Te Rito o te Harakeke, and there are provisions setting out how this is to be implemented. Maintenance of indigenous biodiversity: this requires at least no reduction in a series of matters, including the connectivity between, and buffering around, ecosystems, and the size of populations of indigenous species. The effects management hierarchy: this is described as an approach to managing the adverse effects of an activity and uses slightly different wording to the effects management hierarchy contained in the National Policy Statement for Freshwater Management. It contains definitions for “biodiversity offset” and “biodiversity compensation”, along with principles that must be complied with. The NPSIB’s objective is described as being to protect, maintain, and restore indigenous biodiversity in a way that: (a) recognises tangata whenua as kaitiaki, and people and communities as stewards, of indigenous biodiversity; and (b) provides for the social, economic, and cultural wellbeing of people and communities now and in the future. It then includes 17 policies and a series of directions to implement these policies and the objective. Subject to some exceptions (such as to include geothermal ecosystems and highly mobile fauna), the NPSIB does not apply to aquatic indigenous biodiversity and indigenous biodiversity in the coastal marine area. Significant Natural Areas Notably, the NPSIB introduces a mandatory requirement to identify and map significant indigenous vegetation and significant habits of indigenous fauna as significant natural areas (SNAs). For areas that have not already been identified, territorial authorities are to identify them within five years by using the criteria set out in the NPSIB. This exercise is not required for existing SNAs but only if an ecologist can confirm that they qualify as an SNA under the criteria contained in the NPSIB. In terms of managing adverse effects of new subdivision, use or development on SNAs, there are specific adverse effects that must be avoided, and then other adverse effects are to be managed using the effects management hierarchy. The specific adverse effects to be avoided are listed as: Loss of ecosystem representation and extent. Disruption to sequences, mosaics, or ecosystem function. Fragmentation of SNAs or the or loss of buffers or connections within an SNA. A reduction in the function of the SNA as a buffer or connection to other important habitats or ecosystems. A reduction in the population size or occupancy of Threatened, At Risk (Declining) species that use an SNA for any part of their life cycle. There are some exceptions to this, such as having a separate regime for geothermal SNAs, SNAs within plantation forests and SNAs on Māori lands, and an exception from the avoid direction for specific infrastructure where the effects management hierarchy applies instead. Regarding existing activities, these can continue as long as the adverse effects do not result in the loss of extent or degradation of ecological integrity of the SNA, and are no greater in intensity, scale or character over time. Outside SNAs (other than for Māori lands where a specific direction applies) local authorities are required to take steps to maintain indigenous biodiversity. Implementation Timing MfE has released a Draft Implementation Plan, which includes an implementation timeline split into the following four phases: Phase 1: Gazettal, which is proposed to occur in late 2022. Phase 2: The first year, which includes rolling out implementation support measures like detailed guidance and funding to assist territorial authorities to identify SNAs. Phase 3: SNA provisions, which includes identifying and mapping SNAs within five years. Phase 4: Ongoing implementation, which includes notifying changes to plans and policy statements within eight years. Submissions Feedback is being sought until 21 July 2022 and more information can be found at: https://consult.environment.govt.nz/biodiversity/npsib-exposure-draft/. Please get in touch if you have any queries regarding these changes.

The Ministry for the Environment has released an exposure draft of proposed changes to the National Policy Statement for Freshwater Management 2020 (NPSFM) and the Resource Management (National Environmental Standards for Freshwater) Regulations 2020 (NESF). These changes make amendments to the wetland provisions, along with what the Ministry describes as technical or clarificatory amendments to other provisions. Wetland provisions By way of background, the NPSFM and NESF set out national direction for managing wetlands. At a conceptual level, the NPSFM provides policy direction for regional planning, and the NESF regulates specific activities that are carried out in and around natural wetlands. The Ministry consulted on amendments to these wetland provisions late last year, and has now drafted extensive changes to both the NPSFM and the NESF. These changes include: Biosecurity: Inserting biosecurity provisions in both the NPSFM and NESF. Natural wetlands in the NPSFM: Changing the definition of “natural wetland” in the NPSFM, including by amending the exceptions for both constructed wetlands and pasture; and inserting exceptions to natural inland wetland requirements in the NPSFM for urban development (which includes specific mention of urban development in Tauranga), quarrying, mining, and landfill and cleanfill. Aquatic offsetting: Inserting principles for aquatic offsetting and aquatic compensation into the NPSFM. NESF activities: Amending the activity status standards, including those around restoration, scientific research, wetland utility structures, and specified infrastructure, and inserting new consent pathways for quarrying, landfills and cleanfill areas, urban development, and mining. Other changes Some of the other changes include: Limits: Inserting a definition of “environmental flows and levels” into the NPSFM, and clarifying that they are a type of “limit”. Maintain/improve: Amendments to the NPSFM so that the policy direction to manage freshwater to maintain/improve the health and well-being of water bodies and freshwater ecosystems is not limited to the National Objectives Framework. River beds: Amendments throughout the NPSFM so that the provisions around loss of river extent and values (including the effects management hierarchy) apply only to the loss of river bed extent and values. Nutrients: Amendments to the NPSFM provisions for attributes affected by nutrients. Fertiliser: Changes to the definition of synthetic nitrogen fertiliser in the NESF so that the exception for compost, soil treatment or fertiliser only applies where it is wholly derived from plant or animal waste or residue. Submissions Feedback is being sought until 10 July 2022 and more information can be found at https://consult.environment.govt.nz/freshwater/npsfm-and-nesf-exposure-draft/. Please get in touch if you would like advice around how these changes may affect you or your organisation.

Historically, it was very common for properties to have had some sort of “DIY” building works, whether it be a garden shed, out-house, tree house or internal renovations. These days, it feels like there is so much “red-tape” and cost that comes with doing building work on your land that is very hard to justify doing it (or doing it properly). So, if you want to build your own shed or addition, this is what you should know: It’s my land, can’t I just do what I want? Unfortunately, no. There are rules in place regarding how you can and cannot use your land. This is set out in the relevant ‘District Plan’ prepared by your local council. You may need to obtain a building or land use consent from the council. These consents give you permission to build a structure or use your land and its natural resources in a way that is not allowed as of right in the District Plan. Do I need a building or resource consent? This depends on what you want to do. Generally building consents will be required for any structural building work, new plumbing and drainage works, retaining walls or fences over a certain height or swimming pools. Land use consents, or resource consents, will normally be required for activities such as property development (including building additions or alterations), earthworks, or changes to use of natural resources (ie. water). If you have engaged a builder or other professional, they will be able to tell you if you need a consent. You can also talk to your local council or look on the council’s website. If I do need a consent, what do I need to do? You will need to make an application to your local council. The council will decide whether to grant the consent or not, and may impose conditions on you. It can be a long and drawn out process. If you have a builder, they will generally apply for any building consent on your behalf. If you need a resource consent and need assistance, our experienced team members can guide you through the process. What if I need a consent and I don’t want to get one? If you decide to undertake the work without the proper consent, you will need to be aware that you could later be required by the council to remove or modify the works undertaken. You should also be cautious if you later sell the property, so that the purchaser is not mistaken about it lawfulness of the addition/work. Do I need to tell my insurance company? You should talk to your insurance company before you undertake any major works, whether consent is required or not. Depending on your policy, your insurer may require you to obtain a short term construction policy, such as covering loss and damage to materials on site. They may also require documentation on completion, for example, certification from a qualified electrician that works were done to the proper standard. Holland Beckett Law can help you to determine if your planned works need consent, or with the consenting process.

The Government has recently released New Zealand’s first emissions reduction plan (the Plan), which sets out policies and strategies to meet the first emissions budget (the Budget). The Budget sets the permitted greenhouse gas emissions over a multi-year period. Each Budget will permit less annual emissions than the previous Budget, to transition towards net zero greenhouse gas emissions by 2050 (note biogenic methane is not part of that goal) and contribute to limiting global warming to 1.5°C above pre-industrial levels. The first three Budgets are: Budget 1 (2022–2025): 290 megatonnes of carbon dioxide equivalent greenhouse gasses (averages 72.5 megatonnes per year) Budget 2 (2026–2030): 305 megatonnes (averages 61 megatonnes per year) Budget 3 (2031–2035): 240 megatonnes (averages 48 megatonnes per year) Each of the transport, energy and industry, agriculture, waste, fluorinated gases, and forestry sectors will have a sub-target for emissions to ensure that the economy as a whole is on track to meet the Budget. The Plan sets policies and strategies for New Zealand’s sectors to meet the first Budget, and will be updated when each new Budget is released. The Plan contains a series of actions that span the whole economy, including: Setting emissions prices for agriculture by 2025. Reforming the resource management system. Support businesses moving to circular practices. Improving the charging infrastructure for electric vehicles. Implementing a mandate for sustainable aviation fuel. Reducing the reliance on fossil fuels. Amending the Building Code to improve building energy efficiency. Supporting afforestation. Exploring bans or limits to divert more organic waste from landfill. Requiring refrigerants to be captured and destroyed when heating and cooling systems reach the end of their life. The Government also established the Climate Emergency Response Fund (CERF) in 2021, which is funded through the Emissions Trading Scheme and used to fund projects that support climate change objectives. CERF has allocated $2.9b of spending to aid in setting up schemes that achieve the objectives of the Plan, and the transport, agriculture, forestry and energy sectors will receive the majority of the funds. $650m from the CERF will go towards the Government Investment in Decarbonising Industry (GIDI) fund, which is controlled by the Energy Efficiency and Conservation Authority and will be used to help New Zealand businesses reduce emissions. To receive GIDI funding a project must be larger than $300k, decarbonise process heat, achieve carbon emission savings and be operational by the end of 2025. One of the actions in the emissions reduction plan is to reduce emissions from the energy and industry sector, and reducing emissions at the Whakatāne Mill using the GIDI fund is included in the plan as an example. The GIDI fund was used for a new filter system in the paperboard mill, resulting in a significant reduction in emissions and waste water. The Plan can be found here: https://environment.govt.nz/publications/aotearoa-new-zealands-first-emissions-reduction-plan/. If you have any queries regarding the emission reduction plan do not hesitate to contact us.

Over the last few years, climate change events such as flooding and droughts have become more severe and impactful on New Zealander’s lives. As a response, the Government has proposed a draft national adaption plan that aims to build climate resilience over the next six years to the irreversible effects of climate change. This plan will work alongside the first emissions reduction plan set to be released on 16 May, which is less about resilience and more about reducing emissions. The national adaptation plan has three system-wide focus areas, described below. It also proposes critical actions for the natural environment (including implementing the proposed national policy statement for indigenous biodiversity); homes, buildings and places; infrastructure; communities; and the economy and financial system. Reforming institutes to be fit for a changing climate New Zealand’s systems and institutions (including legislation) were designed for a more stable climate than we are now seeing. The draft national adaptation plan identifies a series of critical actions to address this, which includes reforming the resource management system, reforming institutional arrangements for water services, and modernising the emergency management system. The reforms to make systematic changes to these areas have already begun, which aim to clarify the roles and responsibilities of local governments and communities whilst planning for climate impact and risks. Supplying data, information, tools and guidance to enable everyone to asses and reduce their own climate risks There is already extensive information on New Zealand’s changing climate. However, the current system for collecting and managing data is inconsistent, can be difficult to navigate, and needs datasets that are more specific to the information requirements of iwi, hapū and Māori. The right tools and guidance are also needed to allow this (what is often uncertain) information to be used in managing climate risks, and in investing in climate resilience. The draft national adaptation plan identifies a series of critical actions to address this, including designing and developing an Adaptation Information Portal, delivering targeted guidance, and exploring co-investment for flood protection in Westport – which has been subject to severe flooding over the last couple of years. Embed climate resilience across government strategies and policies To ensure the above changes and other future climate change solutions are implemented, they will need to be included into the Government’s work programme, including through Government investment into initiatives like the Climate Emergency Response Fund. Consultation Alongside the national adaption plan, the Ministry for the Environment is seeking feedback on its related work around managed retreat and flood insurance, which will inform the initial policy development for the Climate Adaptation Act. Consultation on the draft national adaption plan, managed retreat and flood insurance is currently open and submissions can be submitted online until 11:59pm on Friday 3 June 2022. For more information visit: https://consult.environment.govt.nz/climate/national-adaptation-plan/.

The Ministry for the Environment is consulting on four amendments to regulations that support the Emissions Trading Scheme (ETS). Climate Change (Unit Register) Regulations 2008 The current regulations allow ETS participants to exchange NZ Units (NZU) for Crown-held New Zealand Assigned Amount Units (AAU). Both NZU and AAU are carbon credits that represent one metric tonne of carbon dioxide equivalent. However, NZU are domestic carbon credits used in the NZ ETS whereas AAU are international carbon credits issued by industrialised countries to meet their emissions reduction targets under the Kyoto Protocol. Participants would exchange NZU for AAU and then cancel them, as a way to demonstrate a voluntary carbon offset. While this cancellation process is still in place in the regulations, it was never recommended for post-2020 emissions and data from the Environmental Protection Agency suggests participants are no longer using this mechanism. This is because it is no longer credible under the Paris Agreement following the introduction of new emission reduction targets. The Government therefore proposes to officially remove the cancellation process from 1 January 2023. Climate Change (Other Removal Activities) Regulations 2009 The Government is proposing to remove the eligibility criteria to receive NZU (domestic carbon credits) for destroying or exporting hydrofluorocarbons and perfluorocarbons, which are potent synthetic greenhouse gases. Hydrofluorocarbons are found in refrigerators, air conditioning units, aerosols, fire protection and foam blowing equipment, and perfluorocarbons are found in refrigeration manufacturing and aluminium smelting. Removing the eligibility criteria will encourage more participants to destroy or export these greenhouse gases, which will help New Zealand meet its international climate change obligations. Climate Change (Stationary Energy and Industrial Processes) Regulations 2009 The third proposed change is a routine (usually annual) update to the schedule of default emissions factors for natural gas fields. These emissions factors are used by ETS opt-in participants to calculate their emissions without seeking information from the gas miners. The emission factors are based on gas composition so need to be regularly updated to reflect changes in the chemistry of natural gas, and the opening of new fields. Climate Change (Liquid Fossil Fuels) Regulations 2008 ETS participants that supply or use liquid fossil fuels (such as jet fuel) are able to deduct the supply or use of biofuels (such as sustainable aviation fuel) from their emissions calculations. This is because using biofuels does not increase atmospheric greenhouse gas concentrations. However, the current regulations do not allow opt-in airline participants that purchase and supply biofuels to deduct the supply of biofuels from their emission calculations, due to the mixing and sharing of fuel at airports. The Government has proposed changes to remedy this, which would promote the use and supply of biofuels like sustainable aviation fuel. Submissions Consultation on these proposals is currently open and submissions can be submitted online until 5pm on Thursday 28 April 2022. For more information visit: https://environment.govt.nz/news/consultation-on-proposed-regulation-changes-to-maintain-accuracy-of-the-new-zealand-emissions-trading-scheme/.

The Government is concerned over new exotic forests being treated as carbon sinks under the Emissions Trading Scheme (ETS). By way of background, the ETS was implemented under the Climate Change Response Act 2002 and is a key tool for ensuring that New Zealand meets its domestic and international climate change targets. Businesses involved in the scheme are called “participants”, and they include businesses that joined on both a compulsory and voluntary basis. Participants can be from the forestry, mining and petroleum, waste disposal, agriculture, or industrial production industries. The ETS puts a price on emissions by creating “NZ units” (NZU) and then charging participants one NZU for each metric tonne of carbon dioxide (or equivalent greenhouse gas) emitted. NZUs can be auctioned, allocated, purchased, gifted and traded and as of February 2022 the fixed price for one NZU was over $80. Participants that absorb greenhouse gases (“carbon sinks”) are gifted NZU, which are often sold to other participants. As trees are the main carbon absorbers, the bigger the forest, the more NZU forestry participants can be gifted. There are requirements around what constitutes “forest land” under the ETS, and the way forest land is treated depends on whether or not it was established post 1989. This date is based on the Kyoto Protocol, which sets 1 January 1990 as the baseline for net global emissions. Forests established post 1989 are considered new carbon sinks and (subject to some conditions) can be registered with the ETS and earn NZU. The Government has raised concerns over the planting of exotic trees (such as radiata pine) on land that had no previous tree cover (called “afforestation”) to gain NZUs. While the Government wants to encourage afforestation, permanent exotic forests can displace pastoral farming, production, and indigenous forests. To manage these issues, the Government is currently consulting on opportunities for improving incentives for indigenous afforestation, and whether to prevent exotic forests from registering in the permanent post-1989 category of the ETS. The Government is also consulting on how a new carbon accounting method applies to remote and marginal land for harvesting, and is separately consulting on whether local councils should be allowed to regulate where exotic forests are planted. More information about these proposals can be found at: https://www.mpi.govt.nz/consultations/managing-exotic-afforestation-incentives. Submissions are open to anyone with an interest in forestry, especially Māori land owners. Submissions to the Ministry of Primary Industries open 14 March 2022 and close 5pm on 22 April 2022.

As of 21 December 2021, the Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021 came into force amending the Resource Management Act 1991 (RMA) to set new medium density residential standards (MDRS) and make other amendments to the RMA that are set to change the future of housing development in New Zealand. The amendments in conjunction with the National Policy Statement on Urban Development 2020 (NPSUD) require less restrictive planning rules in district plans for certain urban areas in New Zealand, allowing for more houses to be built and intensification to occur in close proximity to community facilities, transportation, employment opportunities and other infrastructure. As set out in the NPSUD, and reflected again in the RMA amendments, Tauranga is a Tier 1 territorial authority, Rotorua is Tier 2, while Whakatāne, Taupō and Ōpōtiki are all Tier 3. The amendments to the RMA mean that by 20 August 2022, Tier 1 councils are required to notify an intensification planning instrument (IPI) that gives effect to relevant policies from the NPSUD and incorporates MDRS for all relevant residential zones in their district or city. Tier 2 and 3 councils may have the opportunity to prepare and notify an IPI, if regulations are made by the government allowing them to do so. An IPI is a plan change, but it will follow a slightly different process called the Intensification Streamlined Planning Process (ISPP) which is intended to mean that the changes to district plans can come into effect more quickly. Once IPI’s are notified by the relevant council (no later than 20 August 2022) the IPI’s will have immediate legal effect, subject to a number of limited exemptions. This will allow for significantly more permitted residential development, which will not require resource consent, where development complies with the MDRS. That will be the case by 20 August 2022, even while the IPI is still proceeding through the hearing process. The MDRS in brief are as follows: No more than 3 residential units per site (site in the context of cross-leases and unit titles means the whole site which is subject to the cross lease or unit title); Buildings must not exceed 11 metres in height, however the roof can exceed this height by 1 metre depending on the slope of the roof; The building coverage (including overhangs) must not exceed 50% of the net site area; Buildings must not project beyond a 60° recession plane, but this standard does not apply in a number of circumstances; Buildings must be set back from the relevant boundary of 1 metre from the side and rear boundaries, and 1.5 metres from the front boundary (this doesn’t apply to adjoining properties which have common walls); A residential unit that faces the street must have a minimum of 20% of the street-facing façade in glazing in the form of windows or doors; A residential unit must have an outdoor living space which is required to have certain dimensions depending on whether it is a ground floor or upper floor unit; A residential unit must have an outlook space which has dimension and view requirements; A residential unit at ground floor level must have a landscaped area of a minimum of 20% of a developed site with grass or plants, and can include the canopy of trees regardless of the ground treatment below them. All residential zones must be included in the IPI, unless the relevant council considers that there is a ‘qualifying matter’ meaning that some of or all of the MDRS are not appropriate. Qualifying matters include matters of national importance, areas where there is a need for open space for public use, areas where there is a matter required to give effect to a national policy statement or where there is any other matter that makes higher density inappropriate in an area. The amendments also mean that Councils are not able to include minimum lot sizes or size related requirements for residential subdivisions in residential zones, as long as the subdivision is compliant with the MDRS. Subdivisions which are compliant with the MDRS will be a controlled activity, meaning resource consent is required but cannot be refused by a council, only conditioned. In the context of Tauranga, we will have to wait and see the approach that Tauranga City Council and Western Bay of Plenty District Council decide to take to the amendments. Tauranga City Council was about to start hearings for Plan Change 26 before this Bill was announced. Plan Change 26 proposed ‘more intense’ intensification in some parts of the Te Papa peninsular than these amendments will permit, and the Act does provide for more permissive standards than the MDRS to be incorporated within an IPI. We will know by August at the latest how both councils intend to approach the amendments. If you have any questions regarding these RMA amendments and how they could affect your property plans, please do not hesitate to get in touch.

The Government is reviewing Aotearoa/New Zealand’s conservation laws and has released a roadmap setting out its work programme. The existing legal framework includes 24 (generally outdated) statutes, including the Wildlife Act, Reserves Act, Marine Mammals Protection Act, Marine Reserves Act, and Conservation Act. The reforms will be comprehensive and will involve reviewing the whole conservation framework. While the timelines around this broader reform work are yet to be determined, the roadmap does set out some timelines for making changes around the Wildlife Act, the Trade in Endangered Species Act, Hauraki Gulf marine protection, conservation management and processes, and reclassifying stewardship land. The Government will carry out a full first-principles review of the Wildlife Act, which Minister of Conservation Hon Kiri Allan states is “outdated, does a poor job at protecting many species … and it doesn’t reflect Treaty principles or support customary use”. The Minister cites a recent situation involving pekapeka (long-tailed bats) as an example of where the Wildlife Act failed to protect endangered species. In that case, Department of Conservation (DOC) was able to grant an application for pekapeka to be accidentally killed during the construction of a motorway, but could not consider an application to relocate them. The Minister describes the review of the Wildlife Act as “fundamental reform”, which will form the foundation for the longer-term reform work. DOC expects to report back to Cabinet on its progress in 2023. In terms of the Trade in Endangered Species Act, the roadmap anticipates that Parliament will repeal the existing legislation and enact new legislation in 2022. This new legislation will be more efficient and will strengthen the regulation of elephant ivory. New legislation will also be introduced to establish High Protection Areas and Seafloor Protection Areas in the Hauraki Gulf, which the Government plans to enact in 2024/2025. The Government also intends to make conservation management and processes more streamlined and to clarify and simplify the process for reclassifying stewardship land. To those ends, the roadmap anticipates amended legislation being enacted in 2023. Of course, these timelines can be updated and it will be important to monitor DOC’s website for opportunities to engage in these processes. The following consultation is currently open: Consultation with mana whenua around High Protection Areas in the Hauraki Gulf – closes February 2022. Public consultation around reclassifying stewardship land – closes 18 March 2022.

While the management of New Zealand’s water has previously been the domain of 67 local councils, full-scale water reform by the Government is proposed to consolidate this into just four powerful entities. Central Government considers this is necessary to ensure all Kiwis have access to safe, reliable and affordable water – local authorities are not so sure. The three water networks – drinking water, wastewater and stormwater – are essential to our communities. However, our current systems around the country face challenges with the growing population, climate change and stringent environmental obligations. The Government estimates that half of Aotearoa’s sewage systems need to be upgraded in the next decade and wants to ensure that public health hazards like the 2016 Havelock North campylobacter outbreak are not repeated. Over 8000 people were infected by the 2016 contamination - making thousands sick, leaving some permanently disabled and causing four deaths. It is estimated by the Government that up to $110 billion could be needed within the next 30-40 years to maintain and upgrade the systems. The Government believes it simply is not feasible for Councils to shoulder this burden independently. What is the Government’s Proposal?It is proposed that four regional bodies will be set up to oversee Council owned water infrastructure. The boundaries of the four entities will be multi-regional and grouped according to population and physical size: Entity A: Auckland and Northland Entity B: Central North Island (stretching from the Bay of Plenty to Taranaki) Entity C: East Coast of the North Island and the top of the South Island (including Tasman, Nelson and Marlborough) Entity D: The remainder of the South Island The entities will be created by legislation setting out a range of objectives, powers, functions and responsibilities, which will have the goal of providing safe, affordable and efficient water services to New Zealanders. The entities will be able to access long term financing agreements that would not be possible for debt-constrained councils, but will remain publicly owned. The new system also proposes to involve iwi and Māori at a level not seen previously. Local authorities and mana whenua are proposed to have 50/50 joint oversight over the entities through the establishment of regional representative groups and the legislation, with the goal to give effect to both the Treaty of Waitangi and the freshwater principles in Te Mana o te Wai. One of the concerns that the Government seeks to address through this model is managing the cost of upgrades to the infrastructure. It is intended that economic regulation will ensure that water rates are manageable, and shared evenly across the country. Local Government Concerns This ‘even spread’ of water infrastructure cost is the source of much of the local government concern with the proposal. While most councils agree that investment is needed, some councils have invested diligently in to their water systems and fear that the reforms will result in a loss of these assets, without proper compensation, while councils with higher water infrastructure needs stand to benefit. Further, those districts who need the most significant upgrades will be subsidised by rates paid by other districts who may already have high rates bills that have funded the infrastructure in their district. On top of this, the reform is intended to take an ‘all in’ approach meaning it will be compulsory, and individual councils will not have the option to opt out. The Government has responded to these concerns by announcing a ‘no worse off’ package, intending to cover any short-term losses incurred by local authorities during the reform process, with $500 million allocated to that package. However, council and public opposition to the proposals continue to gain traction and publicity. Auckland Council has launched a public consultation process on the proposal, with findings to be provided to the Government in March. Three District councils (Whangārei, Timaru and Waimakariri) have filed an application in the High Court seeking a declaration of what ‘ownership’ means in the context of three waters infrastructure. If that definition is found to equate to a conventional form of ownership, it would potentially require the Government to compensate councils for the infrastructure when transferred. Meanwhile, thirty mayors and councils around New Zealand have signed a letter to the Prime Minister seeking a meeting over the mandated three waters restructure. It appears that these actions may be having the desired effect of delaying the Government’s plans and providing more time to consider the proposal and iron out some of the many issues raised by local government and others. The Government’s aim is to have the four water service entities operational by mid-2024, and the bill giving effect to the reform was set to be introduced to Parliament by the end of the year. However, the Government announced last Thursday that it was delaying the introduction of the bill to allow the working group formed to advise on how the four water entities governance would work, and to give feedback on an exposure draft of the bill. That exposure draft is also intended to be released to the public in due course. If you have any queries regarding the three waters reform do not hesitate to contact us.

Purchasing a kiwifruit orchard comes with lots to think about and plenty of due diligence to undertake. Often the purchase will be conditional on these further investigations, so what is important to consider? For most orchardists, water and compliance are key considerations. Often water is sourced from a bore, either on the land itself or from neighbouring properties pursuant to an easement or water supply scheme. However, to take water for irrigation or frost protection, you not only need the legal right to convey the water from its source potentially across your neighbours\' land but also consider the terms of this easement and rules around how you are to share pump maintenance and running costs with your neighbours. As well as ensuring there is the appropriate Resource Consent to draw either surface water or bore water at a sufficient rate to irrigate or provide the necessary frost protection. Resource Consents have strict allowable flows and volumes and require metering and monitoring to ensure compliance. In some cases water storage on site is necessary to make sure that sufficient volumes of water are readily available in times of peak demand without breaching the flow limits. In addition to water, overall compliance by the vendor is important, such as not exceeding their licensed plantable area, ensuring Global Gap compliance, maintaining the required spray programme and diary to Zespri’s export standard, etc. Another big factor is the ownership of the crop that may be on the vines or could have been picked. Special care is needed when a settlement is likely to take place around picking time as the treatment of hanging fruit can be different from picked fruit from a tax point of view. Most agreements will clearly state who retains ownership of the current crop and who is to benefit from the sale proceeds, even if it is already (or will be by settlement) picked and in the coolstore. With Zespri’s trailing payment method over the year following the picking of a crop, there can be significant cashflow impacts for a buyer if they don’t also buy the crop, as they may not get any income from the orchard until the following year\'s crop, starting up to 12 months later. In this case sufficient finance would need to be in place from the outset to fund orchard expenditure until income is received. Ultimately the ownership of the crop has an impact on the overall price paid for the orchard and a purchasers funding requirements. Other considerations include: Legal Title and any other registered interests or easements on the land Licence Ownership Any ongoing management agreements Your structure and ownership entity KPIN transfer Chattels and Improvements and the apportionment of values Zespri shares and many more. If you are contemplating purchasing your first orchard or expanding your existing operations, please contact us with any queries before entering into an agreement.

The Government last week introduced the Resource Management (Enabling Housing Supply and Other Matters) Bill (the Bill) to Parliament, which is the result of collaboration between New Zealand’s two major political parties. The collaboration itself signifies the seriousness of Aotearoa’s housing supply issues, with the Bill aimed at introducing mechanisms to mitigate these issues. The Bill introduces new medium density residential standards for our five major cities – Auckland, Hamilton, Tauranga, Wellington and Christchurch. The standards include some significant changes, requiring councils to make the following activities permitted for residential zones: Three houses on each site to be permitted with no minimum lot size; Height restriction of 11 metres (or three storeys) and an additional 1 metre for a pitched roof; A six metre height restriction at the boundary and a 60 degree recession plane (illustrated compared to Tauranga City Council’s (TCC) current rules in the drawing below); Minimum setbacks of only 2.5 metres from the front boundary and 1 metre from rear and side boundaries; Minimum outdoor living spaces of 15m2 for ground floor units and 8m2 for houses with no ground floor area; Outlook space of 3m x 3m from the principal living room, and 1m x 1m from all other rooms. For more than four units per site, or for developments which do not comply with the standards set out above, the activity will require resource consent as a restricted discretionary activity. Further, for applications for the construction of more than four units any notification is precluded. Most significantly, these standards will apply to all residential zones (subject to limited exceptions where this level of intensification is not considered appropriate for a variety of reasons). While currently TCC has targeted their intensification largely to the Te Papa peninsular, these standards will apply to all residential zones in Tauranga including Otūmoetai, Mount Maunganui, Pāpāmoa, Pyes Pa and Bethlehem, as well as Western Bay of Plenty residential zones such as Omokoroa. This will inevitably result in some loss of privacy and daylight over time in these zones, but the changes are designed to allow for the intensification deemed necessary for our cities to accommodate New Zealand’s growing population and to enable the transition to lower carbon urban environments. This Bill is a clear message that both of our major political parties consider that intensification should be given priority. Plan changes or variations giving effect to these standards are required to be notified by 20 August 2022 and will have legal effect as soon as notified. Further, an ‘Intensification Streamlined Planning Process’ will be followed, to support fast adoption of these measures as well as those already included in the National Policy Statement for Urban Development 2020 (NPSUD). Outside of the five cities listed above, the Ministry for the Environment can recommend, where a city is in acute housing need, that an Order in Council requiring a tier 2 urban environment (including Rotorua) to comply with these measures be made. The Bill will have its first reading next Tuesday 26 October, with a limited submission period closing on 16 November. The Government aims to pass the legislation by 16 December and it is almost certain that that will occur, given the bill has cross party support from the National and Labour parties. If you would like to discuss preparing a submission, or have any questions about the Bill please do not hesitate to get in touch with us.

The Government is proposing changes to intensive winter grazing regulations in order to address practical challenges raised by stakeholders. These regulations are set out in the Resource Management (National Environmental Standards for Freshwater) Regulations 2020 (NESF), which were introduced as part of the Government’s Essential Freshwater reforms. A Discussion Document setting out the proposed changes can be found here: Intensive winter grazing regulations: Proposed changes - Ministry for the Environment Citizen Space - Citizen Space. The regulations for intensive winter grazing were set to take effect from 1 May 2022. Under these regulations, farmers can only carry out intensive winter grazing without a resource consent if they comply with a series of default conditions, or they have a certified freshwater farm plan in place. Since the freshwater farm planning process is yet to be rolled out, meeting the default conditions could be the only pathway for some time. Proposed changes The Government’s proposed changes try to improve these default conditions, as they have been criticised for being unworkable in practice. The proposed changes: Amend the 10 degrees slope threshold from a mean paddock slope to a maximum slope, which is easier to estimate. Remove the specific limits on pugging (labelled as impractical) and instead require farmers to take reasonably practicable steps to manage the effects of pugging on freshwater. Exclude sub-surface drains from the definition of drains, so that farmers do not have to maintain a stock buffer from sub-surface drains that cannot be practically mapped. Change the requirement for farmers to resow crops after winter by a set date to “as soon as practicable”, as unpredictable weather makes meeting a set date impractical, and clarify that farmers do not have to resow crops if they have established ground cover in other ways. Introduce a new requirement to keep critical source areas uncultivated and ungrazed. However, not all criticisms have been adopted. Some stakeholders recommended increasing the 10 degrees slope threshold, and changing the condition limiting intensive winter grazing to 50 hectares or 10 percent of a farm’s area. In terms of timing, the Government proposes to delay implementing the intensive winter grazing regulations by six months, so that they take effect on 1 November 2022. Submissions Submissions are being accepted until 7 October 2021. Consultation is also open on: Changes to the low slope map in the Resource Management (Stock Exclusion) Regulations 2020 – closing 26 September 2021. Proposed regulations for freshwater farm plans – closing 26 September 2021. Changes to natural wetland provisions in the NESF and National Policy Statement for Freshwater Management – closing 27 October 2021.

The Government is proposing changes to natural wetland provisions in the Resource Management (National Environmental Standards for Freshwater) Regulations 2020 (NESF) and the National Policy Statement for Freshwater Management 2020 (NPSFM). Both documents were introduced as part of the Government’s Essential Freshwater reforms and introduced strong regulatory protection for natural wetlands. The proposed changes respond to feedback from stakeholders around New Zealand and a Discussion Document setting out the proposed changes can be found here: Managing our wetlands - Ministry for the Environment Citizen Space - Citizen Space. Proposed changes As pasture can get waterlogged after rainfall and be treated as wetland, the Government sought to explicitly exclude heavily modified pasture from the definition of “natural wetland” in the NPSFM. Following feedback that the current definition of natural wetland is problematic, the Government now proposes amendments to that definition to ensure that “any area of pasture that has more than 50 percent ground cover comprising exotic pasture species or exotic species associated with pasture” is not treated as a natural wetland. The NESF sets out standards for restoration activities in and around natural wetlands, which have prevented some restoration work from being carried out. The provisions also do not currently provide for biosecurity or maintenance activities. To address these issues, the Government proposes to bring maintenance work into the restoration provisions, make it easier to carry out some weed control and pest management activities, and permit wetland restoration and maintenance if carried out under a council-approved wetland management strategy. The current framework also provides resource consenting pathways for some activities to occur in or around natural wetlands. The Government proposes to introduce new consenting pathways for quarrying, landfills, cleanfills, managed fills and mining activities, which are all recognised as having some restrictions on where they can take place. The Government also proposes to amend the urban development consenting pathway to provide for more housing and urban development. Essentially, the Government is trying to balance preserving natural wetlands with providing for appropriate use and development. Submissions Submissions are being accepted until 27 October 2021. Consultation is also open on: Changes to the low slope map in the Resource Management (Stock Exclusion) Regulations 2020 – closing 26 September 2021. Proposed regulations for freshwater farm plans – closing 26 September 2021. Changes to intensive winter grazing regulations in the NESF – closing 7 October 2021.

A significant case in relation to development contributions was recently decided by the High Court, in relation to Hamilton City Council’s (HCC) development contributions policy (DC policy) and its application. Development contributions are a funding tool for territorial authorities to charge those undertaking developments a portion of the capital expenditure cost necessary to service growth over the long term, for big ticket items such as three waters infrastructure, roading and other amenities required for growing communities. The Local Government Act 2002 (the LGA) sets out what is required by councils in order to impose development contributions, which must be done through setting a development contributions policy, and then requiring development contributions in accordance with that policy. An application for judicial review was brought against HCC by a group of developers who were essentially claiming that HCC’s DC policy was not compliant in a number of respects with the provisions of the LGA, which was resulting in significant overcharging of development contributions. The decision includes significant findings on development contributions. We have summarized the key findings below: When considering remissions relating to the reduced demand of a particular development, the DC policy requires that the reduced demand must create material future capacity in the Council’s infrastructure network. The Court considered that this was allowed under the Act, and not every development that had reduced demand for infrastructure should receive a remission. The Court found that the LGA’s references to the avoidance of ‘over-recovery’ of development contributions was meant in an aggregate sense, rather than in relation to specific developments. A claim was made in relation to the unreasonableness of the Council’s ‘no refunds’ policy where there was an overcalculation of development contributions, which happened relatively often due to the contribution being required at the resource consent stage. HCC’s policy where there was an overpayment was to provide the developer with ‘site credits’, which were able to be exercised for subsequent site development or redevelopment, meaning if further development did not occur the funds were essentially lost. At the hearing, HCC recognised this issue and had already removed its ‘no refunds’ policy from its 2020/21 DC policy. In these circumstances, the Court declined to grant the relief seeking that the Council reconsider its ‘no refunds’ policy. Another claim related to an industrial zone subdivision, which constructed and fully funded all three waters and roading infrastructure to service the subdivision and therefore claimed that it did not create any demand on infrastructure. HCC relied on the need for local roading in the wider catchment as justification for requiring contributions. The Court held that as long as a causative link can be established between the development and infrastructure demand, development contributions are still attracted, and it is not appropriate to isolate individual components of infrastructure for which a development generates direct demand and only charge development contributions in respect of those individual components. The Court also found that where a development contributions policy identifies catchments for various development contribution fees, it is not essential for projects that are funded by that specific fee to be located within the catchment, as long as there is a causal link i.e. that developments within that catchment create demand for a particular project. A claim was also brought against a part of the policy which calculated stormwater infrastructure development contributions for residential developments based on the number of bedrooms in a dwelling. Given that stormwater infrastructure generally relates to the size of an impervious surface, this method of calculation did not make sense for multi storey developments. The Court declined to find this method of calculation ‘unreasonable’ but did provide some informal direction to HCC to reconsider this in light of the increasing prevalence of multi-storey, high density developments. Overall, this decision will be a relief to HCC due to the sheer scale of claims made against its policies. The overarching theme of the judgment is that councils cannot be reasonably expected to calculate personalised development contribution figures for each development taking into account its precise features. While it can be a blunt tool, a calculation based on floor area is considered appropriate, although it may result in some unfairness at a granular level and remissions may not be readily provided.

The Government has proposed new regulations for freshwater farm plans. These regulations form part of the Government’s Essential Freshwater reforms, which are intended to achieve the following objectives: halt further degradation of waterways; make material improvement in the health of waterways within five years; and restore degraded waterways within a generation. The Essential Freshwater reforms also include the following elements: A new plan-making process under the Resource Management Act 1991 (RMA). National Policy Statement for Freshwater Management 2020 (NPSFM). Resource Management (National Environmental Standards for Freshwater) Regulations 2020. Jobs for Nature funding support towards improving the health of waterways. Resource Management (Stock Exclusion) Regulations 2020 (consultation on proposed changes is currently open). A Discussion Document for the proposed freshwater farm plan regulations can be found here: Freshwater farm plan regulations: Discussion document | Ministry for the Environment. Background In 2020 Part 9A was added to the RMA, which created freshwater farm plans as a new legal instrument. Prior to this, several regional councils had already introduced a system for farm environment plans, and the Government estimates that 75% of farmers and growers have already implemented some form of farm plan. The new requirements for freshwater farm plans are intended to build on this existing work to better control the adverse effects of farming on freshwater and freshwater ecosystems. These plans will be compulsory for some farms, including where 20 or more hectares are used for arable or pastoral land use, 5 or more hectares are used for horticultural land use, or where prescribed by regulations. Regional councils manage freshwater through rules and resource consents, and their regional plans need to be amended to implement the latest NPSFM. While regional plan rules need to be reflected in freshwater farm plans, the new system is intended to reduce the reliance on resource consent processes and stringent plan rules (where appropriate), and allow farmers and growers to tailor freshwater planning solutions to their individual farm and the surrounding catchment. Some freshwater farm plans will be set up before regional councils have completed the latest freshwater planning process, which means freshwater farm plans will eventually need to be updated. Freshwater farm plans must be certified and the farm must be audited for compliance with the plan. The RMA specifies what freshwater farm plans must contain, which includes identifying adverse effects on freshwater and freshwater ecosystems, and specifying clear and measurable requirements that are appropriate for avoiding, remedying, or mitigating those adverse effects. It also includes demonstrating how any outcomes prescribed in regulations are to be achieved, along with complying with any other requirements in regulations. Proposed regulations The proposed regulations are expected to come into force in the first half of 2022 and then freshwater farm plans will be gradually rolled out across New Zealand, starting with more degraded areas. The proposed regulations will specify how freshwater farm plans should assess the adverse effects of farming activities on waterways through risk/impact assessments, and how actions to avoid, remedy or mitigate those adverse effects should be identified. The proposed options essentially range from including general or high-level requirements (along with separate guidance) that allow a more tailored approach to farm management, to prescribing more detailed methodology and standards. The Government has also proposed including three regulated outcomes, covering: catchment values and context; ecosystem health; and farm practice. This means that freshwater farm plans will need to demonstrate how these outcomes are to be achieved. Two alternatives are proposed for how the regulated outcomes should be included in the proposed regulations: stating them at a general level with separate guidance for how they can be achieved; or specifying in detail how they need to be achieved in the proposed regulations. The proposed regulations will also prescribe base information that needs to be included in freshwater farm plans, such as mapping information and farm ownership. More information around how these proposals would be included in the regulations can be found in the Discussion Document. In addition to the matters discussed above, the Government is also consulting on other aspects of the proposed regulations, including timing and rollout, the certification and auditing process, and enforcement mechanisms. Regarding enforcement, the proposed regulations will include offences for non-compliance with both Part 9A of the RMA and the regulations, along with infringement fees, as proposed below: $1,000 - $1,500: Farm operator does not have a certified farm plan within the specified timeframe. $1,000 - $1,500: Farm operator does not have an audited farm plan within the specified timeframe. $1,000 - $1,500: Farm operator does not seek re-certification of their freshwater farm plan in line with the re-certification triggers. $1,000 - $1,500: Farm operator does not implement actions in line with the agreed timeline. $500: Farm operator does not lodge an addendum or update details. The proposed regulations will be included in the integrated farm planning network, so that the various regulated requirements (including freshwater farm plans and green-house gas reporting) can be incorporated into a “whole of farm” planning process. The Government has indicated that the freshwater farm planning process will be carried over into the proposed National and Built Environments Act (which they propose will replace the RMA), and any existing freshwater farm plans will be addressed through transitional provisions. Submissions Submissions are being accepted between 26 July and 12 September 2021. Consultation is also open for the Government’s proposed changes to the low slope map in the Resource Management (Stock Exclusion) Regulations 2020, and the Government will also soon ask for feedback on changes to the intensive winter grazing rules.

The Government has proposed changes to the low slope map in the Resource Management (Stock Exclusion) Regulations 2020 (Stock Exclusion Regulations). These regulations form part of the Government’s Essential Freshwater reforms, which are intended to achieve the following objectives: halt further degradation of waterways; make material improvement in the health of waterways within five years; and restore degraded waterways within a generation. The Essential Freshwater reforms also include the following elements: A new plan-making process under the Resource Management Act 1991 (RMA) National Policy Statement for Freshwater Management 2020 (NPSFM) Resource Management (National Environmental Standards for Freshwater) Regulations 2020 Jobs for Nature funding support towards improving the health of waterways. Proposed regulations for freshwater farm plans (consultation is currently open) A Discussion Document on the proposed changes to the Stock Exclusion Regulations can be found here: Stock exclusion regulations: Proposed changes to the low slope map: Discussion document | Ministry for the Environment. Background The Stock Exclusion Regulations incorporate a map identifying low slope land, which is any land parcel in New Zealand with an average slope of 10 degrees or less. Under the Stock Exclusion Regulations, beef cattle and deer on low slope land must be excluded from lakes and wide rivers (except when crossing) and beef cattle must only cross these waterbodies using a dedicated bridge or culvert (unless actively driven across under supervised and no more than twice a month). All stock (beef cattle, dairy cattle, dairy support cattle, deer or pigs) on low slope land must also be excluded from any natural wetland that is 0.05 hectares or more. Proposed changes Since the Stock Exclusion Regulations were introduced, stakeholders have raised concerns around the low slope map capturing many areas of high slope land, and extensive farming operations in the high country. It also appears that the map does not capture all areas of low slope land. The Government proposes amending the low slope map in the following ways: Using a more advanced mapping methodology called “local terrain averaging”, which addresses issues associated with averaging slope across land parcels. Applying the new low slope map to areas with an average slope up to 5 degrees, rather than 10 degrees, and managing areas with an average slope between 5 and 10 degrees through freshwater farm plans. Introducing a 500m altitude threshold so that land above 500m is managed through freshwater farm plans. Removing tall tussock and depleted grassland areas from the low slope map, as these areas are unlikely to be highly stocked and can be managed through freshwater farm plans. Overall, this will reduce the area captured by the low slope map from 8.2 million hectares to 5.2 million hectares. The revised low slope map can be found here: Stock Exclusion Map Viewer (arcgis.com). Submissions Submissions are being accepted between 26 July and 12 September 2021. Consultation is also open for the Government’s proposed regulations for freshwater farm plans, and the Government will also soon ask for feedback on changes to the intensive winter grazing rules.

The Government has released an ‘exposure draft’ of the National Built Environments Act (NBA), intended to replace the Resource Management Act 1991 (RMA) which has, for many years, been held responsible by developers and environmentalists alike for failing to adequately and effectively manage our natural resources. The release of the exposure draft is a novel process, with the draft being released for initial consultation before it is introduced to parliament. In reality, what has been released is only 20 pages of the NBA which, when final, will be much longer (the RMA is 835 pages long). There are also still many details missing from the draft, including what changes will occur to consenting, but it does include some key provisions including the equivalent ‘part 2’ provisions. The draft largely follows the recommendations set out in the Randerson Report, released in August last year. In terms of key changes, we examine three in this article: 1. Change in purposeThe purpose of the RMA is sustainable management of natural and physical resources. That changes in the NBA, with the new purpose focused on enabling Te Oranga o te Taiao to be upheld and enabling people and communities to use the environment in a way that supports the well-being of present generations without compromising the well-being of future generations. Te Oranga o Te Taiao incorporates: the health of the natural environment; the relationship between iwi and hapū and te taiao (the environment); the interconnectedness of all parts of the natural environment; the essential relationship between the health of the natural environment and its capacity to sustain all life. Many of the aspects of the ‘purpose’ of the NBA are similar to those of the RMA, but the relationship between Māori and the environment is elevated to become part of the purpose of the NBA. The new purpose also emphasises the interconnectedness of the environment and it will be interesting to see how this influences future policy direction from the government. Section 6 of the NBA also elevates the Treaty of Waitangi, both in its position within the legislation and in the substantive requirement. The NBA will require all persons to give effect to the principles of te Tiriti o Waitangi, rather than take them into account. 2. Environmental outcomes and limits The matters of national importance and other matters contained in Section 6 and 7 of the RMA have been replaced with the concepts of environmental limits and outcomes. Limits can be set to protect both the ecological integrity of the natural environment and human health, and can be formulated as a minimum biophysical state or a maximum amount of harm permitted to the natural environment or a specified part of it. Limits must be prescribed for certain matters, in the National Planning Framework and in plans where that is the direction of the national planning framework. Environmental outcomes must also be included to assist in achieving the purpose of the Act, and all plans must promote the environmental outcomes listed which include protecting, restoring and improving a number of specified parts of the environment. The inclusion of ‘improvement’ in many of the outcomes is a development, with the RMA instead focused on protecting, preserving and maintaining. This is likely to have a significant flow on effect to plan provisions and ultimately what is able to be consented and conditioned as part of a consent. The National Planning Framework (the Framework) is a new requirement of the NBA. The process for preparing the Framework is not included in the exposure draft but the Act states that there must at all times be a Framework, for the purpose of providing integrated direction on matters of national significance and matters where consistency across the country or parts of it is desirable. The Framework will be in the form of regulations and must cover a number of topics including housing supply and greenhouse gas emissions. Interestingly, the Framework must also include provisions to assist with resolving conflicts between the environmental outcomes included in the NBA. The NBA places significant emphasis on the Framework, both to set much of the policy direction for New Zealand and resolve conflicts between the various priorities of the NBA. The result is that the various parts of the Framework are likely to be more powerful than current national policy statements, and as such are likely to take a long time to formulate and will inevitably be highly controversial. 3. Regional PlansAs was signalled by the Randerson Report, the exposure draft includes reference to a new process for plan making, with one plan required for each region. Each plan will be made by a regional planning committee which will approve or reject recommendations made by an independent hearings panel after the panel considers submissions on the plan. Although not confirmed by the exposure draft, it is likely that the Randerson report’s recommendation that appeals on this process are limited to points of law will be followed. Each planning committee will be made up of one person to represent the Minister of Conservation, mana whenua representatives and one person nominated by each local authority within the region. While the exposure draft will be heavily scrutinized, submitted on and likely subject to some substantial changes in the coming months, it is fascinating to finally see the base of what will form the next phase of New Zealand’s resource management system. Submissions on the draft are expected to open shortly, and there will be an initial Select Committee Inquiry before findings are reported back to the House and this will inform further policy development. If you have any questions on the draft, or would like any advice please do not hesitate to contact our Resource Management (or should we say NBA) team.

The first major ruling under the Marine and Coastal Area (Takutai Moana) Act 2011 (“the Act”) was released by the High Court on Friday 7 May 2021, representing an important milestone for iwi claims to customary marine title and protected customary rights to the coastal marine area in New Zealand. The Act was brought into force by the National Government in 2011 following the repeal of the controversial Foreshore and Seabed Act 2004. In this case, Re Edwards (Te Whakatōhea No. 2) [2021] NZHC 1025, the claim was brought on behalf of Bay of Plenty iwi Te Whakatōhea, with other iwi groups also making cross claims to some of the same areas of the coastal marine area. Customary marine title (“CMT”) was granted to a number of iwi and hapū groups jointly in three areas, including the western part of Ōhiwa Harbour and the coastal marine area between Maraetōtara in the west to Tarakeha in the east. The exact boundaries of the areas to which the orders relate are yet to be determined, and will be determined following a hearing on the matter set down for February 2022.The CMT orders made by the Court will give the iwi groups a number of rights including a right to veto any resource consent applications made in the part of the coastal marine area where CMT orders are in place.The ruling is the first real precedent set in relation to the Act, following one other decision made under the Act in 2016 regarding the Titī (Muttonbird) Islands off Rakiura (Stewart Island) which did not provide much guidance on the application of the Act outside of the set of circumstances in that particular case.The Whakatōhea decision will be significant for future applications for orders made under the legislation. Under the Act, the test for any applicant group is whether that group holds the land in accordance with tikanga, and has exclusively used and occupied that land from 1840 until today without substantial interruption. The Court provided guidance on the interpretation of this test and found that in this case, it had been met by a number of iwi and hapū in relation to a number of areas.There remain 200 active applications currently before the Court, with the deadline to file an application having expired in 2017. It is a significant programme of work which will take the Court many years to complete.The Court has just heard the first part of local Bay of Plenty iwi Ngā Pōtiki’s claim over the Rangitaua area of Tauranga Harbour and will later this year hear the second part of Ngā Pōtiki’s claim to the coastal marine area from Omanu in the west to Maketu in the east, including Mōtiti Island.If you have any queries in relation to this decision, or the Marine and Coastal Area (Takutai Moana) Act 2011 please do not hesitate to contact us.

On 10 February 2021, Minister for the Environment, David Parker, announced that the Resource Management Act 1991 (“RMA”) will be repealed and replaced with three new Acts by the end of 2022. These are the: Natural and Built Environments Act; Strategic Planning Act; and Climate Change Adaptation Act. These new acts seek to improve the natural environment, whilst allowing more development within environmental limits, improve housing supply and affordability, provide for greater recognition of te ao Māori and give effect to the principles of Te Tiriti o Waitangi. Natural and Built Environments Act (“NBEA”)David Parker announced the NBEA as being the primary act replacing the RMA, and that it will provide for land use and environmental regulation. Its purpose will be to enhance the quality of the environment in order to support present and future generations’ wellbeing. Mandatory national policies and standards will be introduced which aim to support natural environmental limits, outcomes and targets as prescribed by the NBEA. These policies and standards will be incorporated into combined regional plans, which involves a consolidation of over 100 existing regional and planning documents into 14 region wide “Natural and Built Environment Plans”. Strategic Planning Act (“SPA”)The SPA will integrate the RMA, Local Government Act 2002, Land Transport Management Act 2003 and the Climate Change Response Act 2002 in order to achieve more clear and efficient decision making and investment. This will give effect to the long term regional spatial strategies around development and infrastructure, consistent with the Government’s aim to strengthen national strategies and move to a single combined plan per region. This will enable the identification of areas that: Need to be improved or protected; Will be suitable for development; Need infrastructure; and/or Are vulnerable to climate change effects and natural hazards. This act is seen as having the potential to improve housing supply, affordability and choice, and to mitigate emissions contributing to climate change. Climate Change Adaptation Act (“CAA”)The CAA seeks to address complex issues associated with how to plan and finance managed retreat from areas which will be significantly affected by climate change. This will be managed by the Minister for Climate Change, James Shaw. TimingDue to the NBEA being a significant and complex piece of legislation, the Government has planned to release an exposure draft which will be subject to a select committee inquiry and public consultation before the Bill is introduced to the House. The exposure draft will contain the main structure and indicative headings, and will reflect Cabinet decisions and any decisions to be made by a Ministerial Oversight Group. Only certain parts will be fully drafted, such as the purpose and any supporting provisions. The same will not occur for the SPA and CAA, but these will be developed alongside the NBEA. The timeline for these acts is as follows: February-April 2021: Policy decisions will be made, as well as consultation material produced. There will only be limited consultation and engagement with stakeholders directly. May 2021: Exposure draft presented to the House. This will then be referred to a special select committee inquiry. June-September 2021: Special select committee inquiry will consider the exposure draft. Most engagement and consultation will occur in this period. December 2021: Natural and Built Environments Bill and Strategic Planning Bill will all be introduced to Parliament with a standard select committee process to consider them. The Climate Change Adaptation Bill consultation will be separate. December 2022: All three Bills passed into legislation, with implementation expected to take a number of years. ConclusionDue to the quick turn around of this legislation, it is important to engage in its development. Interested parties and stakeholders are encouraged to take part in the select committee process. The Holland Beckett Law RMA team welcomes your enquiry as to what this reform might mean for you.

2020 certainly isn’t the year we thought it would be and the Covid-19 Recovery (Fast-track Consenting) Act 2020 (the Act) definitely wasn’t on the Government’s legislative agenda back in January. The Act was passed under urgency and is part of the government’s economic response to Covid-19, promoting development as a way to stimulate the economy. For developers, the Act offers an opportunity to fast track projects in the pipeline that would otherwise have had to go through lengthy consenting processes under the Resource Management Act 1991 (RMA). The Act sets out a two stage process for obtaining consent under its provisions. To get to the second stage, a project must either be listed in the Act, or become a ‘referred project’. As the projects listed in the Act are all either government-led or government-supported, developers wanting to make use of fast tracked consenting need to go through the process set out below to obtain ‘referred project’ status. Step 1 – become a referred project To become a referred project, an application must be made to the Minister for the Environment (the Minister). This application must include certain information about the project, although at this stage information only needs to be provided to a general level of detail, sufficient to inform the Minister’s decision. The Minister will consider in making their decision whether the project helps to achieve the purpose of the Act. The Act’s purpose is to urgently promote employment to support New Zealand’s recovery from the economic and social impacts of COVID-19 and to support the certainty of ongoing investment across New Zealand, while continuing to promote the sustainable management of natural and physical resources. There are also certain criteria set out in the Act that projects must meet. The Minister is required at this stage to obtain a report from the Office for Maori Crown Relations that identifies relevant Iwi and Treaty settlement matters. They must also invite written comments from the relevant local authorities, other relevant Ministers and anyone else they deem appropriate – comments must be provided within 10 days. This short time frame implies that referral decisions can be expected relatively promptly, although no specific time period is set. Step 2 – get approval from the expert consenting panel If the Minister makes the decision to refer the project (or part of it which they are also allowed to do), an Order in Council will be made for the referral. An application can then be made by the developer to the Environmental Protection Authority (EPA), which will be more akin to a standard resource consent application in terms of the level of documentation required. Once this application is made, an expert consenting panel will be appointed for the project with secretariat support from the EPA. This panel must be chaired by a judge or retired judge and include one person nominated by the relevant local authority and another nominated by relevant iwi authorities. The panel will decide whether or not the project receives consent, considering the documents provided to support the application,  the purposes of the RMA and the Act, relevant national directions, regional policy statements and plans. Public notification of applications is not permitted, although the panel is required to invite certain individuals and bodies to provide comments including ministers, iwi authorities and organisations such as Greenpeace and the New Zealand Fish and Game Council. Comments must be received within 10 days of the invitation being made and the panel must make its final decision and produce a written report no later than 25 days after the date for receiving comments. There are limited opportunities for this timescale to be extended, and a decision could be issued at minimum 45 days of an application being lodged. Appeal rights against decisions of the panel are limited to questions of law. All of the above results in a process which is significantly quicker than the standard resource consent process and with much less public involvement. It remains to be seen how challenging it will be to obtain approval at each stage of the process, but at face value the Act represents a great opportunity for developers to get pipeline projects breaking ground.

The Resource Management (National Environmental Standards for Freshwater) Regulations 2020 (“the NES:F”) came into effect on 3 September 2020 as part of the Government’s wider “Action for Healthy Waterways” package (which also includes the new Freshwater Planning Process contained in the Resource Management Amendment Act 2020, the National Policy Statement for Freshwater Management and Stock Exclusion Regulations).  This article provides a short summary of the provisions in the NES:F. The NES:F imposes tighter regulations around activities which are deemed to be more high-risk in relation to freshwater and freshwater ecosystems.  It imposes new: Standards for farming activities: Conversion and intensification activities relating to land use will now require a resource consent. For example, converting more than 10ha of land to dairy farm, increasing irrigation on a dairy farm by more than 10 ha, and converting plantation forestry to pastoral land (more than 10ha) will now require consent. Horticultural activities are not affected in this way. Feedlots do not require a resource consent if 90% or more of the cattle held in the feedlot are no more than 4 months old and weigh no more than 120 kg. However, if this condition is not met a resource consent will be required. Feedlots will also be required to meet the stock-holding standards. Synthetic nitrogen fertilisers use has been capped at 190 kg/ha/year for pastoral farmers. Operating dairy farmers are also required to monitor and report to regional councils on the land, types, rates and dates which synthetic nitrogen fertilisers have been applied and provide receipts for the purchase of the fertilisers. These standards come into force on 1 July 2021. Winter grazing that is not undertaken in accordance with a certified freshwater farm plan is permitted where the area of the farm used for grazing is no greater than 50 ha or 10% of the area of the farm (whichever is greater), the mean slope of the paddock is less than 10 degrees, prescribed pugging depths are met, livestock is set back 5m from waterways and replanting of the land is undertaken as soon as practicable. These standards come into force on 1 May 2021. Standards for other freshwater related activities: Natural wetlands – The NES:F prescribes standards for activities in or around wetlands. It specifically introduces permitted and restricted activity discretionary activities in relation to the restoration of wetlands and scientific research in to wetlands. Reclamation of riverbeds is now provided for as a discretionary activity, meaning all developments which require some form of stream works will require a resource consent. However, the standard does not provide any criteria against which the applications must be assessed. Passage of fish affected by structures - the NES:F imposes requirements in relation to the placement, alteration and reconstruction of structures in, on, over or under the riverbed which may affect the passage of fish. It requires certain conditions to be imposed on consents relating to activities that may affect fish passage and introduces a number of permitted and restricted discretionary activity classifications. Following the release of the regulations in August, it became apparent that clarifications were required to some of the provisions relating to pugging (when stock intensively trample wet soil, the soil aggregates are broken down and the spaces in the soil are reduced, which can cause damage) provisions in in the NES:F. This resulted in some swift amendments being made to the regulations just weeks after their release. While regional councils do not need to amend their plans to ‘give effect’ to the NES:F, they will need to ensure there is no duplication or inconsistency. The NES:F provides that regional plans are able to include requirements that are more stringent (but not more lenient) than the NES:F.

The brand new National Policy Statement for Freshwater Management 2020 (NPSFM20) came into force on 3 September 2020, replacing the National Policy Statement for Freshwater Management 2014 (NPSFM14). The new statement forms part of the Government’s overhaul of the freshwater planning framework and introduces a slew of changes to the way regional councils are required to manage freshwater resources in the future. The NPSFM20 has one fundamental concept – Te Mana o te Wai. Freshwater must be managed in a way that gives effect to this concept and it underpins all of the policies and provisions included in the NPSFM20. Te Mana o te Wai encompasses the authority and obligations of tangata whenua to make decisions to protect, enhance, respect, care for and sustain freshwater and its use and is focused on governance and stewardship of freshwater. Key policies of NPSFM20 include that: tangata whenua should be actively involved in freshwater management including in decision making processes; freshwater is managed in an integrated way that considers the effects of use and development on a whole of catchment basis; freshwater is managed as part of New Zealand’s integrated response to climate change; the significant values of outstanding water bodies are protected; the habitat of indigenous freshwater species, trout and salmon are protected; freshwater is allocated and used efficiently, all existing over-allocation is phased out, and future over-allocation is avoided; the national target for water quality improvement, which relates to increasing the proportion of freshwater bodies suitable for primary contact, is achieved; the condition of water bodies and freshwater ecosystems is systematically monitored over time, and action is taken where freshwater is degraded, and to reverse deteriorating trends. The National Objectives Framework (NOF) from the NPSFM14 will be continued but has been strengthened by the NPSFM20. This requires every body of freshwater in New Zealand to be grouped into a Freshwater Management Unit (FMU) by regional councils. The relevant regional council will then be required to develop desired environmental outcomes for each FMU and a number of targets to assess whether outcomes are achieved.  Additionally, regional councils are required to include rules in their regional plans that set environmental flows and take limits for each FMU. Regional councils are required by the NPSFM20 to give effect to it as soon as reasonably practicable. As discussed in our previous article on the Resource Management Amendment Act 2020, regional councils will be required to use the new freshwater planning process to publicly notify new regional plan provisions by 31 December 2024 to implement the changes required by the NPSFM20. Final decisions on the provisions will then be required two years after this date by 31 December 2026. The timeframe for implementing these changes is short given that under the NPSFM17, regional councils had until 2030 to carry out all necessary monitoring and plan changes to bring their FMU frameworks in to effect. Significant and complex monitoring, modelling and analysis of all FMUs will be required before the freshwater planning process can be carried out. There is no doubt that all regional councils have a significant body of work ahead. With National party leader Judith Collins indicating that new freshwater directions including the NPSFM20 could be ‘gone by lunchtime’ under a National government, it seems that we will have to wait and see whether - post-election - the NPSFM20 will survive long enough to be implemented by 2026.

The Resource Management (get your) Amendment Act (together) 2020 (RMAA) is the latest in a never-ending series of amendments to the Resource Management Act 1991 (RMA). The RMAA came into force on 1 July 2020 and introduces some significant changes, particularly for the freshwater planning process. It also enhances public participation in the planning process, increases enforcement powers and removes barriers to regional council consideration of climate change mitigation in regional plans and consent decision making. 1. Freshwater Planning ProcessThe RMAA introduces a new freshwater plan development process to replace the previous collaborative approach. Regional councils will be required to use this planning process to publicly notify new regional plan provisions by 31 December 2024 to implement the changes required by the new National Policy Statement for Freshwater Management. Final decisions on the provisions will then be required two years after this date by 31 December 2026. We will also be publishing an article next week on this new national direction as part of our series. Key aspects of the new process include the appointment of a freshwater hearings panel which will receive submissions and hold hearings on all freshwater planning provisions notified by regional councils. Each panel must have one tangata whenua nominated representative. After holding hearings, the panel will issue a recommendations report in relation to the notified plan, which will not be required to be limited to the scope of submissions. The relevant regional council will then decide whether to accept the recommendations of the panel or reject any recommendations which will require them to provide reasons for doing so. Where the council accepts recommendations of the panel, submitters will be limited to appeals relevant to their submissions on points of law in the High Court. Where recommendations are rejected, submitters will be able to appeal to the Environment Court on matters relevant to their submissions. This represents a significant limiting of appeal rights for submitting parties in the plan development process and the intention is that this will result in plans becoming operative more quickly. 2. Other changes of note The RMAA increases the ability for the public to participate in the resource consent process. It removes preclusions on public notification of certain types of consent applications, including subdivisions and residential activities. Restrictions on public notification of these types of applications were introduced by the previous government in the Resource Legislation Amendment Act 2017 to reduce obstructions to development of this kind. Enforcement provisions are strengthened by the RMAA. The statutory limitation period for filing prosecution charges under the RMA is extended from six to twelve months. Further, the Environmental Protection Authority is given the mandate to take enforcement action under the RMA and intervene in enforcement matters being progressed by local authorities. This represents an increase in central government involvement in RMA enforcement. The RMAA also removes a provision of the RMA introduced in 2004 preventing the consideration of the effect of discharging greenhouse gases to air on climate change by regional councils in plan processes and consent decisions. The removal of this provision now gives way to consideration of climate change mitigation and reduction of emissions in RMA processes. This change does not come into effect until 31 December 2021 to ensure enough time is given to Councils to make the necessary policy arrangements. The RMAA is the first stage of the current government’s overhaul of the RMA with the second and more extensive stage anticipated post-election based on the recommendations of the Resource Management System: A Comprehensive Review report, otherwise known as the Randerson Report. We will be publishing an article in the coming weeks on the recommendations of the Randerson Report as part of a series of articles on RMA development so stay tuned for the next instalment of the RMA reform chronicles.

2020 has been a year of significant changes for the resource management framework in New Zealand, with important developments in both legislation and national direction. More substantial changes are also on the horizon, with the Resource Management Review Panel’s report on the Resource Management Act (RMA) reform now published and both major parties indicating that RMA reform is on the agenda post-election. Three new instruments represent the ‘Freshwater Package’ that the Government has enacted to protect and improve the state of New Zealand’s fresh water bodies: 1. Resource Management Amendment Act 2020 - now in force, the Act introduces a new freshwater planning process that all freshwater planning instruments are required to undergo. Amongst other things, the Act also aligns the RMA with the Climate Change Response (Zero Carbon) Amendment Act, requiring consideration of climate change mitigation in planning decisions. Until now regional councils were prohibited from having regard to the effect of greenhouse gas discharges on climate change in most circumstances. 2. National Policy Statement for Freshwater Management 2020 – the new NPSFM takes effect on 3 September 2020, and requires that water is managed in way that gives effect to Te Mana o te Wai, including involving tangata whenua in freshwater planning. This strengthens the previous NPSFM’s wording which required consideration and recognising of Te Mana o te Wai in the management of fresh water. It also refines the National Objectives Framework for Freshwater Planning. 3. Resource Management (National Environmental Standards for Freshwater) Regulations 2020 – these new standards for freshwater take effect on 3 September 2020 and are focused on certain activities posing risk to freshwater quality and quantity. The standards include provisions to protect wetlands, ensure connectivity of fish habitat and restrict agricultural intensification. Other significant developments include: 4. National Policy Statement on Urban Development – this new national direction is designed to ensure sustainable and well-managed urban growth. It will require Councils to plan for growth both up and out in urban areas and prevents unnecessary growth constraints. It will also require the development of an evidence base about demand, supply and prices of housing and land to inform planning decisions. 5. COVID-19 Recovery (Fast Track Consenting) Act 2020 – this new legislation came into effect on 9 July 2020 and is focused on fast tracking resource consenting and designation processes for eligible projects. Two types of projects can be progressed under the legislation, with the first being projects listed in the Act and the second being projects confirmed by Orders in Council, which follows an application and approval process conducted by the Ministry for the Environment. 6. Report of the Resource Management Review Panel (also known as the Randerson Report) - this long awaited report follows the issues and options paper released in November 2019. It sets out the panel’s recommendations for reform of the RMA, including for a new Strategic Planning Act alongside a Natural and Built Environments Act to replace the RMA, mandatory plans for each region combining regional policy statements, regional plans and district plans and a streamlined process for plan creation and amendment which will limit appeal rights. In addition to these developments National Policy Statements for Highly Productive Land and Indigenous Biodiversity are expected to come into force in the first half of 2021. Holland Beckett Law will be publishing a series of articles on the reforms listed above in the coming weeks.

The COVID-19 Recovery (Fast-Track Consenting) Bill was introduced on 16 June 2020 in the Government’s attempt to mitigate the effects of COVID-19. The Bill aims to bypass the Resource Management Act 1991 in order to speed up the consenting process for projects. Parliament’s last sitting day is 6 August in preparation for the 19 September election. As such, the Bill is likely to be passed prior to this in an urgent manner, seen before in circumstances such as the Christchurch and Kaikōura earthquakes. The Bill enables two categories of projects to access the fast-track consenting process: Listed projects – these are specific Government-led projects listed in schedule 2 of the Bill, such as road works in conjunction with Kotahi Waka (NZTA). None of these are located in the Bay of Plenty. Referred projects – these are projects which have applied for eligibility to access the fast-track process. The process for climbing aboard the fast-track consent train is two-fold. Referred Project: Initially, a project must become a ‘referred project’. This involves making an application to the Minister for the Environment to decide on whether a project should be referred. The application must go to both the Minister for the Environment and the Minister for Conservation for a joint decision if the project is in the coastal marine area. Fundamentally, the project must help to achieve the purpose of the Bill. In determining whether it does, the Minister may consider a range of factors, including the economic benefits, significant adverse environmental effects and whether or not the project would likely progress faster using the process. The Bill precludes activities described as prohibited under a plan or national environment standard or those that may be inconsistent with customary rights. That said, the Ministers still have wide discretion, so there is some ambiguity surrounding the grounds for eligibility. Expert Consenting Panel:If deemed eligible, the application is referred to an expert consenting panel for consideration. The panel is chaired by an Environment Court Judge or suitably qualified lawyer and must also include nominated members from the local authority and Iwi authority. There are no notification requirements here, although the panel must invite relevant parties (specified in the legislation) to comment on the application. A response from those parties is required within 10 days from notification. The Panel must reach a decision within 25 days of the last comment being received, however, there is scope to extend this to 50 days for larger projects. There is also no requirement for hearings and no appeals to the Environment Court. Appeals to the High Court are on a point of law only. There is no time restriction on the Minister when deciding whether to give approval for a project to be referred and that may cause delays. However, for those projects successfully referred, the fast-track process should prove to be more efficient than the standard RMA process.

Although a Bill is yet to be introduced, the 12 May 2020 Cabinet paper released on the proposed COVID-19 Recovery (Fast-track Consenting) Bill throws more light on what the fast-track consenting process will look like. Central and local government projects look to be the major beneficiary of the proposal, with other projects needing to be selected against eligibility criteria in order to qualify. Projects that are eligible Specific large-scale Government-led projects will be listed in the Bill, and the Bill will also enable certain central and local government projects to occur as of right, provided specified criteria, such as capital value thresholds or land tenure requirements are met. The Cabinet paper acknowledges that this brings a risk of a “less robust assessment of environmental effects” but rationalises this on the basis that central and local government agencies have a clear role in delivering public benefit, are subject to a higher level of scrutiny than private organisations, and have governing legislation that requires environmental considerations. Beyond that, people with publicly or privately-led projects can apply to the Minister for the Environment to use a fast-track process. If the Minister considers that the project meets the purpose of the legislation, then an Order in Council will be made and it will be referred to an Expert Consenting Panel for a decision. Criteria for non-listed publicly or privately-led projects The criteria that the Minister will use to decide whether to fast-track a particular project are: economic benefits for communities or industries affected by COVID-19 the social and cultural wellbeing of current and future generations whether the project would likely progress significantly faster by using this process whether the project will result in a significant public benefit. When considering whether it will do so, the Minister may have regard to any relevant matter, including whether the project will: generate employment increase housing supply and contribute to well-functioning urban environments  provide infrastructure, to improve economic, employment, and environmental outcomes, and increase productivity improve environmental outcomes for coastal or freshwater quality, air quality, or indigenous biodiversity minimise waste contribute to New Zealand’s efforts to mitigate climate change, including accelerating New Zealand’s transition to a low emissions economy promote the protection of historic heritage strengthen our environmental, economic and social resilience, including to natural hazards and the impacts of climate change. There are certain conditions which the project must meet, such as that it would not authorise any activity classified as prohibited in any plan or proposed plan, nor involve land returned under a Treaty settlement unless there is agreement from the relevant iwi authority. However, the Cabinet paper notes that once an Order in Council is made, there should be a high level of certainty that a resource consent or designation will be granted. Expert Consenting Panel process The Panel which will make the decision in relation to the fast-tracked project will generally have no more than four members, but could exceed this in order to accommodate local circumstances. Unless otherwise provided for in a Treaty settlement, the Panel will be chaired by a current or retired Environment Court Judge (or other judge, or senior lawyer), and include a member of (or person nominated by) the relevant local authorities, and include a representative nominated by the relevant iwi authorities. If a project is referred to the Panel, there will be no public notification but the Panel will be required to invite comment from certain parties including: the relevant local authorities any relevant iwi authority any relevant customary marine title group, protected customary rights group or applicant group under the Marine and Coastal Area (Takutai Moana) Act 2011 the owners and occupiers of any land on which the project is to be undertaken, or of any adjacent land certain Ministers of the Crown (to be identified in the legislation) certain organisations or persons, to be identified in the legislation, including but not limited to environmental NGOs and infrastructure industry groups any other person that the Minister for the Environment (and Minister of Conservation, if the project relates to the coastal marine area) considers appropriate Timeframes and appeal rights There is no obligation to hold a hearing, and the Panel must issue its decision on an application within 25 working days of the date it specifies it must receive comments on the application. The Panel can double this timeframe due to the scale of the project. Appeals against a Panel decision on a resource consent will be limited to a point of law appeal to the High Court and a further right of appeal to the Court of Appeal, with no right of appeal to the Supreme Court. Sunset clause A two-year sunset clause is proposed for the Bill, although some Orders in Council approved prior to the repeal date may continue to have effect depending on the project. Who benefits? Listed Government-led projects are the clear beneficiary, as are the central and local government activities which will be able to occur as of right – essentially as deemed permitted activities. Beyond that, a range of developers and infrastructure providers will be assessing their projects against the criteria for obtaining Ministerial approval to use the fast-track process. While projects that increase housing supply and contribute to well-functioning urban environments are a consideration, it remains to be seen whether this extends beyond large-scale re-zoning of land and associated infrastructure to the land developers themselves. Environmental projects should also benefit – either from being specifically listed or through the eligibility criteria which include whether a project will improve environmental outcomes for coastal or freshwater quality, air quality, or indigenous biodiversity. Conclusion Once the Bill is introduced, it will provide more detaiI, at least on the large-scale Government-led projects to be listed, and the central and local government projects to occur as of right. It remains to be seen whether the eligibility and selection process for other publicly or privately-led projects will be any more fleshed out than the Cabinet paper. It is likely that the Bill will be introduced shortly and passed under urgency.

Resource Management Amendment Bill – Environment Committee Report The Resource Management Amendment Bill was introduced to the House of Representatives on 23 September 2019, and the period for lodging written submissions closed on 7 November 2019.  Following the presentation of oral submissions, the Environment Committee has now provided its final report to the House and the Bill moves into the second reading stage. The Bill would amend the Resource Management Act 1991 and the Resource Legislation Amendment Act 2017, and its purpose is to reduce complexity, increase certainty, and reinstate public participation opportunities.  It also introduces a new freshwater planning process and seeks to improve existing resource management processes and enforcement functions.  It is the first stage of proposed changes to the resource management system. The Environment Committee’s report covers the main amendments recommended by the Committee and can be found at: https://www.parliament.nz/en/pb/sc/reports/document/SCR_96439/resource-management-amendment-bill.  This article summarises some of the key recommendations as they relate to the new freshwater planning process, the new enforcement functions accorded to the Environmental Protection Authority, and the Environment Committee’s proposals around climate change. Freshwater Planning Process The Bill introduces a new freshwater planning process into the RMA, which is intended to work in conjunction with the draft National Policy Statement for Freshwater Management.  Our article on the draft NPSFM can be found at: https://www.hobec.co.nz/news-resources/2019/september/take-four-draft-nps-for-freshwater-management. The Environment Committee recommends a series of changes to this process, including to: Clarify that where a regional council is satisfied that only part of a planning instrument relates to freshwater, the other parts of the planning instrument will not be subject to the freshwater planning process. Ensure that key RMA decision-making provisions are complied with (such as that regional plans must be prepared in accordance with Part 2 of the RMA). Allow regional councils to develop alternatives outside the scope of submissions when making decisions that reject hearing panel recommendations which go beyond the scope of submissions. Clarify that submitters can appeal to the Environment Court if regional councils reject recommendations of hearings panels which go beyond the scope of submissions (rather than restricting appeals to only matters raised in submissions). Overall, the Environment Committee does not recommend any changes to the core of the original Bill.  A new freshwater planning process is still proposed, merits-based appeal rights are still heavily curtailed, and freshwater hearings panels can make recommendations beyond the scope of submissions.  Environmental Protection Authority The Bill empowers the EPA to undertake investigation and enforcement functions under the RMA.  Amongst other things, this would allow the EPA to intervene and take over the investigation and enforcement functions of local authorities.  Alongside a technical amendment, the Environment Committee recommends amendments to clarify that if the EPA intervenes and then withdraws from the enforcement process, local authorities can resume any enforcement action that commenced prior to the EPA’s involvement. Climate Change The Environment Committee recommends that the Bill removes statutory barriers to considering climate change in decision-making under the RMA.  In 2004, the RMA was amended to prevent regional councils from considering the effects of greenhouse gas discharges on climate change in planning processes or resource consent applications (subject to some exceptions). Given the evolution of climate change policy, the Environment Committee proposes that the Bill should allow regional councils to consider emission reduction plans and national adaptation plans in planning processes.  It proposes that these changes take effect from 31 December 2021 to ensure there is sufficient time to make the necessary policy arrangements. Photo from: Ministry for the Environment 2019. Action for healthy waterways: A discussion document on national direction for our essential freshwater.

The Ministry for the Environment has released the Resource Management Review Panel’s issues and options paper entitled “Transforming the resource management system: Opportunities for Change”. The Panel has been tasked with undertaking a comprehensive review of the Resource Management system and other associated legislation. The Resource Management Act 1991 was a revolutionary planning document integrating the management of the natural and built environment. In the almost 30 years since its release it has nearly doubled in length and there is concern that it is incapable of adequately providing for the challenges facing New Zealand’s resources today. The issues and options paper represents the beginning of the formal discussion about the where the system is failing, what it should look like in the future and possible ways to achieve those outcomes. The Panel’s final report is due with the Minister for the Environment at the end of May 2020, after considering responses to the issues and options it identified. The challenges that the Panel identified include overarching problems affecting the resource management process broadly, such as the complexity of the legislative architecture, the lack of national direction on how to manage resource effectively and the focus on effects of activities rather than planning for outcomes. It also identified specific issues such as the non-use of RMA sections to provide for joint management of resources with iwi and whether climate change should be a greater focus of resource management legislation. The options considered were similarly varied in scope. The Panel proposed ideas such as splitting the legislation for the built and natural environment into two (i.e. the pre-1991 approach) and creating an overarching spatial planning statute to sit above the RMA and guide decisions makers. The Panel considered the “first in first served” principle that governs allocation, and whether it needs to be modified. The Panel also recommended institutional reform, for example, central government playing a greater role in the system. The Panel seeks comments on the paper and proposes 44 specific questions to answer. It welcomes submissions until Monday 3 February 2020.https://hobec.co.nz/wp-content/uploads/attachments/comprehensive-review-of-the-resource-management-system-opportunities-for-change-issues-and-options-paper.pdf

Protected areas around Motiti Island as set out in the Environment Court’s interim decision, Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2018] NZEnvC 067 On 4 November 2019 the Court of Appeal concluded in a controversial decision that regional councils can use the Resource Management Act 1991 (RMA) to control fishing in the coastal marine area. Back in 2015, Bay of Plenty Regional Council (BOPRC) released decisions on its Regional Coastal Environment Plan (the Plan). The area subject to the Plan included the immediate surroundings to Motiti Island, offshore Tokau Reefs and the Astrolabe Reef/Ōtāiti. This Plan was appealed to the Environment Court and it was during that process that the concept of marine protection areas came about. The case eventually got to the Court of Appeal, in which the Court had to evaluate the jurisdictional overlap between the RMA and the Fisheries Act 1996 (Fisheries Act). RMA and fishing By way of background, the RMA includes the following key provisions, which are referenced throughout this article: 30 Functions of regional councils under this Act 1) Every regional council shall have the following functions for the purpose of giving effect to this Act in its region: … d. in respect of any coastal marine area in the region, the control (in conjunction with the Minister of Conservation) of – i. land and associated natural and physical resources: ii. the occupation of space in, and the extraction of sand, shingle, shell, or other natural material from, the coastal marine area, to the extent that it is within the common marine and coastal area: … vii. activities in relation to the surface of water: … ga. the establishment, implementation, and review of objectives, policies, and methods for maintaining indigenous biological diversity: … 2) A regional council and the Minister of Conservation must not perform the functions specified in subsection (1)(d)(i), (ii) and (vii) to control the taking, allocation or enhancement of fisheries resources for the purpose of managing fishing or fisheries resources controlled under the Fisheries Act 1996. Environment Court Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2016] NZEnvC 240 The Environment Court concluded that s 30(1)(ga) of the RMA – which gives regional councils functions around maintaining indigenous biological diversity – is not caught by the limitation in s 30(2) of the RMA (the Limitation). The Limitation prohibits regional councils, in exercising functions under ss 30(1)(d)(i), (ii) and (vii), from controlling the taking, allocation, or enhancement of fisheries resources for the purpose of managing fishing or fisheries resources controlled under the Fisheries Act. High Court Attorney-General v Trustees of the Motiti Rohe Moana Trust [2017] NZHC 1429 Attorney-General v Trustees of the Motiti Rohe Moana Trust [2017] NZHC 1886 The Attorney-General appealed this decision to the High Court. The High Court held that regional councils are precluded by the Limitation from exercising functions under ss 30(1)(d)(i), (ii) and (vii) to manage the utilisation of fisheries resources or the effects of fishing on the biological sustainability of the aquatic environment as a resource for fishing. It also concluded that regional councils can exercise their functions to maintain indigenous biological diversity under s 30(1)(ga) however only to the extent that it is “strictly necessary” to perform that function. The High Court set aside the declarations made by the Environment Court but did not make its own declarations because it considered that answering the broad, essentially hypothetical questions posed would run the risk of overreach or oversimplification. The Attorney-General appealed this decision to the Court of Appeal. Interim judgement of the Environment Court Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2018] NZEnvC 067 In the meantime, the Environment Court released an interim judgement declaring that a rule prohibiting the damage, destruction or removal of flora and fauna within three protection areas around Motiti Island – Ōtāiti, Motunau Island and Motuhaka – should be included in the Plan. However, the Environment Court stated that its judgement was subject to the Court of Appeal decision on jurisdiction. Court of Appeal Attorney-General v Trustees of the Motiti Rohe Moana Trust & Ors [2019] NZCA 532 By way of background, the Fisheries Act regulates commercial, recreational and customary fishing and its objective is to provide for utilisation of fisheries resources while ensuring sustainability. The Court of Appeal observed that while s 30(1)(ga) of the RMA is about maintaining indigenous biological diversity, the Fisheries Act is focused on the sustainable utilisation of fisheries. In its view, the two pieces of legislation complement each other; they both apply to the coastal marine area and allow decision makers to impose controls to protect biodiversity. The Court of Appeal agreed with the lower Courts that any controls imposed under ss 30(1)(f)(i), (ii) or (vii) are explicitly subject to the Limitation, whereas the function of maintaining indigenous biological diversity in s 30(1)(ga) is not. However it disagreed with the High Court that regional councils can only exercise their functions around maintaining indigenous biological diversity when “strictly necessary”. As set out above, BOPRC proposes to prohibit the removal, damage or destruction of any flora and fauna in the three protection areas around Motiti Island. The Court of Appeal observed that this prohibition amounts to controlling the taking of fisheries resources, and such controls would also engage s 30(1)(d)(i) (and possibly (ii) or (vii)). In that sense, the function of maintaining indigenous biological diversity can be subject to the Limitation. This Limitation is aimed at managing fisheries resources to control their taking, allocation or enhancement. In determining whether a control implemented under ss 30(1)(f)(i), (ii) or (vii) will contravene the Limitation, the Court of Appeal noted that the following five indicia may provide some guidance: Necessity – whether the objective is already being met through measures implemented under the Fisheries Act; Type – controls that set catch limits or allocate fisheries resources among sectors or establish sustainability measures for fish stocks would likely amount to fisheries management; Scope – a control aimed at indigenous biodiversity is likely not to discriminate among form or species; Scale – the larger the scale the more likely the control is to amount to fisheries management; Location – the more specific the location and the more significant its biodiversity values, the less likely it is that a control will contravene the Limitation. In summary, the effect of the Limitation is that regional councils can control fishing and fisheries resources provided they do not do so to manage those resources for Fisheries Act purposes. The Court of Appeal agreed with the High Court that declarations were not appropriate, as the questions of law were separated from their factual setting and it would be very difficult to craft declarations which neatly encapsulated its reasons. The effect of this is that the reasons given throughout the decision will need to be interpreted to determine whether its conclusions apply in different circumstances. It is likely that this decision will pave the way for more marine protection areas around New Zealand.

The Court of Appeal has dismissed the Canterbury Regional Council’s (the Council) appeal of the High Court’s decision on how to find the “bed” of a river under the Resource Management Act 1991 (RMA). The litigation arose because of the prosecution of Dewhirst and Dewhirst Land Company Ltd for works undertaken in the Selwyn River in 2016. The Court of Appeal upheld the High Court’s decision that the bed should be found by identifying the river’s banks first, dismissing the interpretation favoured by the District Court and argued for by Council, that the bed should be found by identifying the area covered when the river was at its fullest flow (including flood events), limited by a holistic analysis of the river and topographical features that could be banks. The key distinction between the two interpretations is that on the Council and District Court’s interpretation, the river bed area had the potential to encompass a greater area with greater flexibility because the exercise was not constrained by identifying the banks from the outset. However the Court of Appeal found difficulty accepting it because its application could have effects not anticipated by the RMA, for example, it could result in the area covered by a one-in-50-year flood event being deemed the “bed” of a river. The Court of Appeal held that there were other ways to protect the beds of rivers and lakes under the RMA without the need for such a broad definition. The Court of Appeal considered the application of its definition to section 2(a)(i) (the RMA definition of “bed” for esplanade reserves, esplanade strips and subdivision), because Council asserted that the approach to finding the “bed” in that part should be the same exercise as under section 2(a)(ii). The Court held that the interpretation of 2(a)(i) should not have bearing on section 2(a)(ii), because there was no warrant to apply the same approach to the different circumstances and different wording in the two definitions. The Council can seek leave to appeal the decision to the Supreme Court by 6 November 2019. Link to original High Court article

Photo from :  Ministry for the Environment. 2019. Action for healthy waterways – A discussion document on national direction for our essential freshwater. The Ministry for the Environment have released proposed regulations to exclude stock from waterways.  The proposed Regulations are part of a wider programme that MfE is implementing to create healthier waterways, and sit alongside a draft National Policy Statement for Freshwater Management and Proposed National Environmental Standards for Freshwater. Stock exclusion from waterways has been a conversation surrounding the agricultural industry for some time, and until now action has been by way of a dairy industry-lead, voluntary initiative, “The Sustainable Dairying: Water Accord” in July 2013.  This required signatories to exclude dairy cattle from significant waterways and wetlands, with the effect of 98% of signatories excluding dairy cattle from waterways after five years of implementation. This month MfE released its proposed regulations to require stock exclusion (ie. cattle, pigs and deer) from wetlands, lakes and rivers from 2021.  The Regulations are proposed to lower levels of the four main contaminants affecting waterway health (phosphorous, sediment, nitrogen and faecal matter including E. coli).  Sheep and goats are not included in the Government’s proposal on the basis that they do less damage to streams and rivers. Larger water bodies will be dealt with by regional councils while farm plans will be used to create bespoke solutions for smaller streams and drains, although the regulations will only target water bodies that are more than one metre wide.  The regulations will be made under the Resource Management Act 1991, therefore regional councils will be tasked with monitoring and enforcing compliance. MfE is working with the public to develop the regulations and seek feedback on: The degree of slope used to map low-slope land (non low-slope land only be regulated if classified as a high-risk pastoral activity); Potential methodologies for calculating carrying capacity; How large setbacks (space between the fence and waterway) should be and how it should be measured; and Barriers farmers may face in meeting requirements. The official closing date for submissions is Thursday 17 October 2019 at 5pm. However, submissions will be accepted for a further two weeks beyond that date, until 31 October 2019: https://submissions.mfe.govt.nz/consultations/essential-freshwater-f483240c-4b48-4713-acaa-539915e31f4e/make-a-submission

Photo from:  Ministry for the Environment. 2019. Action for healthy waterways – A discussion document on national direction for our essential freshwater. The Government released its proposals for freshwater management reform on 5 September 2019, including a consultation draft of the National Policy Statement for Freshwater Management (“Consultation Draft”) which, once finalised, will represent the fourth iteration of the National Policy Statement on Freshwater Management (“NPSFM”). In contrast to the 2014 and 2017 iterations which built on the original 2011 format, the Consultation Draft has a new look and feel and much greater coverage. The Consultation Draft has simply one objective with thirteen supporting policies. It provides for the continued setting of freshwater management units by regional councils, and the national objectives framework (“NOF”) which requires regional councils to work through specific values and attributes for those freshwater management units. However, it covers a far greater number of topics including inland wetlands, and has a larger number of attributes tables for both limit setting and ‘action plans’ under the NOF. Te Mana o Te Wai The Consultation Draft continues to strengthen and build on the concept of Te Mana o Te Wai which is proposed as a “fundamental concept” and permeates the Consultation Draft more fully than the current NPSFM. While the current NPSFM says it “is the integrated and holistic well-being of a freshwater body”, the Consultation Draft omits a clear definition statement, saying it “refers to the fundamental value of water and the importance of prioritising the health and wellbeing of water before providing for human needs and wants”. There is a re-framing of the term at least and whether it is clearer than the current NPSFM will no doubt attract submissions. ‘Maintain or improve’ Objective A2 of the current NPSFM – amended in 2017 to spatially narrow “region” to “freshwater management unit” – has attracted much debate around the use of the term ”overall”. The Consultation Draft includes a ‘maintain or improve’ policy (proposed Policy 2) but with a different emphasis to the current NPS. It no longer uses the word “overall”, and instead of the term “water quality”, refers to the health and wellbeing of water bodies and freshwater ecosystems. NOF & compulsory values Within the NOF, there are now at least three and potentially four compulsory values. Ecosystem health remains, but “human health for recreation” is proposed to be “human contact”. “Threatened species” has been added, and there is a placeholder for a fourth possible compulsory value for Mahinga Kai or Tangata Whenua Value. The range of other values that must be considered through the NOF remains the same, but will be shortened if Mahinga Kai becomes a compulsory value. The term ‘freshwater objective’ is absent from the NOF. Instead regional councils must describe the environmental outcomes that it wants to achieve for the compulsory and other values it identifies. The Consultation Draft appears to place development of the NOF more squarely with regional councils than the current NPSFM. It is proposed that at every stage of the process regional councils must engage with communities and tangata whenua in order to give effect to Te Mana o te Wai, but the list of mandatory considerations at all relevant points in the process – such as how to enable communities to provide for their economic well-being, including productive economic opportunities – is absent from the Consultation Draft. Attributes tables There range of attributes tables is considerably expanded. The attributes which require limits have expanded from nine to twelve, and include suspended fine sediment. Eleven attributes requiring ‘action plans’ have also been introduced covering matters such as macroinvertebrates, fish, and submerged plants (native and invasive). Regional councils are to identify the current states of each attribute, and set target attribute states. Much like the current NPSFM these are proposed to be at or above current state (unless below the national bottom line in which case the target must be better than the national bottom line). However a notable exception is Human Contact where the target attribute is to be above the current state of that attribute. New ground The Consultation Draft covers far more ground than the current NPSFM. There are specific requirements introduced for inland wetlands, streams, and fish passage. There is an emphasis on no further loss of wetlands which is not surprising given New Zealand’s record of wetland loss, and there are strong provisions directed at ensuring continued fish passage in New Zealand’s rivers and streams. Timing In line with its desire to take a strong stance on the improvement of freshwater quality, the consultation draft shortens up the timeframe for councils to have final decisions out on regional policy statements and plans by no later than 31 December 2025. Not addressed The question of Māori rights and interests which has recently been considered by the Waitangi Tribunal is not directly addressed in the Consultation Draft. The Cabinet paper accompanying the proposals states that the Tribunal’s report (which was released on 28 August 2019) is to be considered alongside submissions as part of public consultation. Given the complexity of how this issue might be addressed, it remains to be seen whether it will form part of the replacement NPSFM in due course. Submissions The official closing date for submissions is Thursday 17 October 2019 at 5pm. However, submissions will be accepted for a further two weeks beyond that date, until 31 October 2019. Also open for submissions as part of the freshwater reforms Action for Healthy Waterways package are a proposed national environmental standard for freshwater and draft stock exclusion regulations.

Photo from:  Ministry for the Environment. 2019. Action for healthy waterways – A discussion document on national direction for our essential freshwater. On 5 September 2019 the Government released the long-awaited package of freshwater reforms. The Action for Healthy Waterways package seeks to stop the degradation of New Zealand waterways and restore them to a healthy state, and includes a Consultation Draft of a new National Environmental Standards for Freshwater (NESF). This proposed NESF sets out standards for wetlands, rivers, fish passage, and farming. Wetlands, rivers and fish passage The NESF includes a series of standards relating to wetlands, rivers and fish passage including wetland monitoring obligations, consent condition standards for nationally significant infrastructure, and standards for vegetation destruction, earth disturbance, water takes, river bed infilling, culverts, weirs, flap gates, dams, and fords. These standards are primarily aimed at stopping any further loss of wetlands and rivers, and providing for fish passage. Interestingly, the definition of “nationally significant infrastructure” in the NESF includes national renewable electricity generation facilities that connect with the national grid but specifically excludes the facilities of existing hydro schemes. This means that existing hydro schemes and renewable electricity generation facilities that do not connect to the national grid are not considered “nationally significant infrastructure”, despite renewable electricity generation being recognised as a matter of national significance in the National Policy Statement for Renewable Electricity Generation. The NESF sets specific activity status for a range of activities which are considered the most destructive to wetlands, including vegetation clearance, earth disturbance, and water take activities that change the level of a natural wetland. These standards seek to protect natural wetlands and the triggers for requiring resource consent include being carried out close to a natural wetland. Notably, earth disturbance for drainage in any part of a natural wetland is prohibited unless it is done for restoration, public flood control or drainage, or in relation to new or existing nationally significant infrastructure (which as set out above, excludes existing hydro schemes and renewable electricity facilities that do not connect to the national grid). There are also specific activity status for river bed infilling and for culverts, weirs and passive flap gates, of which the latter three are aimed at providing for fish passage. Notably, culverts and weirs will require consent if they do not provide for the same fish passage as exists naturally, and the construction of passive flap gates is a non-complying activity. With respect to protecting rivers, any resource consent granted as a discretionary activity must include a condition which requires, after working through the mitigation hierarchy, residual adverse effects on the river to be offset to achieve a no net loss. Farming The NESF also includes a series of standards relating to livestock control. These standards set specific activity status for feedlots, sacrifice paddocks, stockholding, and intensive winter grazing. In line with the Government’s plan to clean up New Zealand’s waterways, the concept of being located away from vulnerable areas is brought through several of the standards, either as an activity standard or a condition on resource consents. For example, sacrifice paddocks will require consent if they are located less than 50m away from waterbodies, water abstraction bores, drainage ditches, and coastal marine areas whereas for stockholding (for a certain duration) and feedlots that requirement must be included as a consent condition. Intensive winter grazing will require consent if stock is grazed in a “critical source area”, which means a landscape feature such as a gully, swale, or depression that accumulates runoff from adjacent flats and slopes and delivers it to surface waterbodies. The NESF also introduces tight controls around further land use intensification through interim measures until regional councils have implemented the national policy statements for freshwater management. In many instances, resource consents must include a condition that the nitrogen, phosphorous, sediment or microbial pathogen discharges resulting from the intensification will not exceed the average discharges of those contaminants for the farm during 2017/2018. This effectively puts a freeze on additional contaminant discharges until the national policy statements for freshwater management are implemented. Farm plans The NESF also introduces nationally standardised requirements for a freshwater module in farm plans. It is already good practice amongst farmers to include management of contaminant losses in their farm plans however there are no mandatory requirements for these plans unless required by regional rules, and then regional rules often differ between regions. The new national standards include a timeline for implementing the new requirements, which is within 2 years if the farms (amongst other things) are located within a schedule of specific at-risk catchments including the Upper Rangitaiki and Otangimoana Rivers catchment in the Bay of Plenty. All farms must implement the requirements by 31 December 2025. The standards are generally aimed at managing the risks of contaminant losses and associated impacts on freshwater. For farms located in the at-risk catchments, they must also include action points to reduce nitrogen discharges. Interestingly, the Government has introduced an alternative proposal for managing nitrogen loss in the scheduled catchments, which if adopted would replace the requirement to include action points in farm plans to reduce nitrogen discharges. The proposal sets activity status for low-slope pastoral farming and dairy farming which are focussed around managing nitrogen loss. Notably, any resource consent granted under these standards will expire after no more than 5 years of being granted. This proposal also puts an onus on regional councils to calculate a threshold value for each catchment or sub catchment based on nitrogen loss figures provided by farmers. Submissions In summary, the proposed NESF introduces a series of standards aimed at stopping any further loss of wetlands, providing for fish passage and regulating farming practices at a national level to manage contaminant losses. The official closing date for submissions is Thursday 17 October 2019 at 5pm. However, submissions will be accepted for a further two weeks beyond that date, until 31 October 2019. Also open for submissions as part of the freshwater reforms Action for Healthy Waterways package are a proposed national policy statement for freshwater management and draft stock exclusion regulations.

National Policy Statement on Urban Development: one of four public consultations opened this month The month of August has seen a flurry of activity coming from the Ministry for the Environment, with its proposed National Policy Statement (NPS) on Urban Development being released hot on the heels of the proposed NPS for Highly Productive Land. These proposals come alongside work the Government is undertaking in relation to further national direction on the NPS for Freshwater Management and new National Environmental Standards for Freshwater Management, expected to be released in September. NPSs on Urban Development and Highly Productive Soil The NPS on Urban Development proposes a process for encouraging development whereby cities have room to grow “upwards” and “outwards” through decision-making based on strong, interconnected planning and evidence that aligns with a Council’s long-term planning goals. A key goal for growth under the proposed NPS is that growth unfolds in a way that creates quality urban environments that will provide for the current population as well as the changing amenity values that may arise for future generations. The Government invites submitters to let them know the type of city they want to live in, and submissions are open from today until 10 October 2019. The NPS for Highly Productive Land seeks to utilise productive land for primary production and protect it from subdivision, use and development, and submissions close on the same date. Discussion documents on waste minimisation and hazardous substances The Government has also released a consultation documents regarding waste as well as hazardous substances assessments. The consultation on waste is concerned with reducing harm from items that damage the environment (i.e. plastic) by placing more accountability (and costs) on product designers and producers rather than the environment and individuals. It proposes moving towards creating a circular economy in New Zealand whereby we move from a take-make-dispose economy to a make-use-return economy. Submissions can be made until 4 October. The hazardous substances consultation seeks to approve and set controls on hazardous substances so that we can still benefit from their use while better managing potential risks to people and the environment. Submissions close 30 September. Submissions on the NPS for Urban Development: https://submissions.mfe.govt.nz/consultations/planning-for-successful-cities/make-a-submission Submissions on the NPS for Highly Productive Land: https://www.mpi.govt.nz/news-and-resources/consultations/proposed-national-policy-statement-for-highly-productive-land/ Submissions on proposed guidelines for waste minimisation: https://submissions.mfe.govt.nz/consultations/proposed-priority-products-and-priority-product-stewardship-scheme-guidelines/make-a-submission Submissions on hazardous substances assessments: https://submissions.mfe.govt.nz/consultations/hazardous-substances-assessments-improving-decision-making-proposed-improvements-to-assessments-and-reassessments-of-hazardous-substances/make-a-submission

The Government launched yesterday its overhaul of the Resource Management Act 1991 (RMA) which, as described by Hon David Parker, “takes too long, costs too much and has not protected the environment”. The need had been highlighted by a reform project initiated by the Environmental Defence Society. Parker stressed that “if, with all our advantages, New Zealand can’t overcome its environmental problems, then the world won’t. Our Resource Management System is pivotal to achieving that”. The improvement of the RMA system will proceed in two stages, with a Stage 1 Bill (currently being drafted) to address relatively straightforward problems or issues that require action in advance of Stage 2, the comprehensive review. The aim of the review is to cut complexity and costs while improving protection of the environment. Currently, plan making processes often take longer than the three year term of the elected councils responsible for them. The RMA is close to twice its original length, making it difficult to interpret and slow to implement. The review will be led by a panel that will produce a proposal for reform, chaired by retired Appeal Court Judge Tony Randerson. The Draft Terms of Reference of the panel outline that it is ready to depart from the status quo in order to achieve its aims. It wants to prioritise setting the high level framework for an improved system rather than resolving issues with the current framework. It will consider possibilities such as separating statutory provisions for land use planning from that of environmental protection of air, water, soil and biodiversity, whether Part 2 of the RMA should be a separate piece of legislation and how the RMA should interact with the Local Government Act 2002, the Land Transport Management Act 2003 and the Climate Change Response (Zero Carbon) Amendment Act (once passed). The panel aims to produce an ‘issues and options’ paper by the end of October 2019 with the final report due mid-2020.

The Productivity Commission, an independent Crown entity, has released its draft report on local government funding and financing following the Government’s request for the Commission to undertake an inquiry. The report runs to just under 300 pages, and includes useful context for the review, as well as high level analysis of trends in local government revenue, expenditures, prices and debt. The three page terms of reference from the Ministers of Finance and Local Government to the Commission asked the inquiry to investigate cost pressures, funding and financing models and the regulatory system, and a follow up letter on 29 April 2019 specifically asked the Commission to consider whether a tax on vacant land would be a useful mechanism to improve the supply of available housing for New Zealanders. The Commission’s findings Local government The Commission outlined that local governments play an important role in society by providing a range of essential services, and highlighted that the costs and pressures facing local governments have increased. The five largest sources of expenditure for councils were listed as being support services, roading, transportation, recreation and sport, and wastewater. The main sources of funding available to local authorities included rates, grants and subsidies, and sales and user charges. Local authority rates increases have outpaced increases in other indices measuring average costs and incomes. Local authority debt has grown steadily since 2006, with some high growth councils coming close to covenanted debt limits. Therefore the Commission outlined key areas that the framework is not currently addressing. Current framework The Commission found that the current funding and financing framework is a good foundation for a future system. It supported the “benefit principle” whereby those who benefit from (or cause the need for) a service should pay for its costs, with scope to consider “ability to pay”. The Commission called for better use to be made of existing tools, and suggested that councils require new funding tools, in particular to address: • The infrastructure required to support rapid urban growth: currently the failure of high-growth councils to support housing development has created social and economic problems; • Climate change: climate change poses a threat to local government infrastructure, and councils are responsible for local planning involving at-risk land; • The growth of tourism: tourists are not paying the full cost of the demands they are placing on infrastructure (local roads, parking, public toilets, water and wastewater); and • The accumulation of responsibilities placed on local government by central government: responsibilities are passed on to local government without adequate funding means. Infrastructure Regarding infrastructure the Commission has recommended a new “value capture” funding tool whereby property owners who enjoy windfall gains in their property value as a result of publicly funded infrastructure would be required to pay a portion of this gain to council, combined with volumetric wastewater charges and powers for councils to levy road congestion. It also recommended Special Purpose Vehicles to allow debt to sit off a council’s balance sheet if it was nearing its debt limits, so that it could continue to invest in development. The Commission is considering a new funding stream from central government for new infrastructure as well as a possible tax on vacant land, and seeks submissions on these points in particular. Climate change The Commission stated that central government should provide high-quality and consistent science and data, standard setting, and legal and decision-making guidance regarding climate change. It stressed that the focus needs to shift from recovery following an event to reducing risk before an event occurs. On this basis the Commission recommended that the New Zealand Transport Agency should co-fund local roads to assist councils facing significant threats to local roads and bridges. It also recommended the creation of a climate-resilience agency and associated fund to aid councils in planning for infrastructure threatened by climate change (through redesign, relocation, rebuilding). Tourism The Commission recommended that legislation should enable councils in tourist centres to implement an accommodation levy, and that greater use should be made of user pays for mixed use facilities. For smaller councils that could not reasonably use those options, the Commission recommended that funding should be given from the international visitor levy. Resetting the relationship between central and local government To allow co-design and joint implementation of appropriately funded regulatory regimes, the Commission recommended a “Partners in Regulation” protocol be developed by central and local government. The Commission also referenced the need to revise a new three waters regime, given the high proportion of funds that local governments put towards this sector. The regime, the Commission says, should rigorously enforce minimum standards while giving councils the freedom to determine how they will meet those standards. There should be a backstop arrangement that applies to councils that fail to lift performance by a specific time. Submissions The draft report is open for submissions until 29 August 2019, and submissions are welcomed on any part of the report and on any issues that participants consider are relevant to the inquiry’s terms of reference.

The first set of National Planning Standards came into force on Friday 3 May 2019. These standards were released by the Minister for the Environment to improve the consistency of council plans and policy statements. Specifically, the standards set nationally consistent structure, format, definitions, noise and vibration metrics, and electronic functionality and accessibility requirements for regional policy statements, regional plans, district plans and combined plans under the Resource Management Act 1991. The implementation timeframes differ depending on the standard. For example, the standards for regional policy statements must be implemented within three years, for regional plans within ten years, and for district plans within five years for the standards and seven years for the definitions. District councils which have recently undertaken a plan change must implement the planning standards within seven years, and the definitions within nine years. These district councils are listed in the standards and include Christchurch City Council, Dunedin City Council, Invercargill City Council and Queenstown-Lakes District Council. There are different timeframes for councils implementing combined plans. Despite these different timeframes, councils must implement the standards if they notify a new policy statement or plan after the standards come into effect. Councils must also comply with the mandatory directions for basic electronic accessibility and functionality within one year, and with the mandatory directions for online interactive policy statements and plans within five years. With respect to the latter, the standards set longer timeframes for district councils which have recently undertaken a plan change, and councils with under 15,000 ratepayers. The planning standards can be found on the Ministry for the Environment’s website at: http://www.mfe.govt.nz/national-planning-standards/first-set

Update: Court of Appeal affirms High Court’s decision What is the “bed” of a braided river? The High Court decision Dewhirst Land Company Ltd v Canterbury Regional Council [2018] NZHC 3338 concerned the correct interpretation of the term “bed” in relation to a river under s2 of the Resource Management Act (RMA). Determining the river bed was “more contentious” in this case because it concerned the Selwyn River, which was a braided river, therefore identifying its banks was more difficult. Background In breach of its resource consent, Dewhirst had cleared vegetation up to an existing formed bank, which it had considered to be the edge of the Selwyn River bed, and had created a gravel bund along the line of that bank. It plead guilty to five charges under s 13 and s 14 of the RMA but contested the factual finding that the entire area in question was within the “bed” of the River. A reduction in the area that was considered to be the “bed” would have the effect of reducing the penalty it faced for illegal works in that area. Correct test for determining the extent of the river “bed” The High Court considered whether the District Court failed to identify the correct test for determining the extent of the River bed. Following the Council’s approach, the District Court determined the River bed by ascertaining the River’s waters at its “fullest flow” not including land covered by reason of the banks being overtopped. The Council submitted that the banks could not be determined first because of the number of topographic features that could be identified as banks in the area. The Court noted its legal definition of the bed concurred with the Council’s river engineering expert’s determination of the location of the banks. The High Court held that the District Court applied the wrong legal test to the issue of river bed because it did not give sufficient weight to the observable location of the River’s banks, and appeared to overlook the difference between a river bed and its adjoining flood plain. The High Court said the correct approach was to determine the river bed through statutory interpretation. Section 2 of the RMA defines the term “bed” in relation to a river as, “the space which the waters of the river cover at its fullest flow without overtopping its banks”. While the term “banks” was not defined in the RMA the Court determined that it was generally defined as “the land alongside or sloping down to a river or lake”. The RMA gave no direction on what “fullest flow” meant in this context, and the Court did not accept its literal meaning as it would extend the “banks” of a river to the flood plains following significant flood events. Consequently the Court held that one could not apply the s2 definition of “bed” without first identifying where the relevant banks were by way of inspection or otherwise. Once the banks were identified, the correct test for identifying the “bed” was the long accepted “bank to bank” test outlined in Kingdon v Hutt River Board (1905) 25 NZLR 145 (SC) that, “the bed of a river comprises those lands covered by water during the ordinary rainy season but contained within the banks of the river and extending from bank to bank”. While the Council submitted that a limited definition of a river bed would result in it being disadvantaged jurisdictionally from protecting river environments, the Court considered this concern to be unfounded given other routes available to local authorities to govern general river environments. Taking into account expert evidence of the location of the river “bed” The High Court also considered whether the District Court took into account an irrelevant matter when considering the appropriate flow for determining the extent of the river bed. The Council submitted this was not a question of law but the High Court accepted the question because it concerned the relevant considerations that could be taken into account when determining the proper legal test. The District Court had taken into account the advice of Council officers that “a 50-year flow period was an appropriate starting point for indicating what the boundary of the bed should be”. The High Court found that taking into account Council’s evidence was an irrelevant consideration, therefore the legal test undertaken was awry. Environment Canterbury (ECan) has said that it will appeal the High Court decision to bring clarity to the legal definition of a “riverbed”, which will have broad effects for river users and in particular ECan’s efforts to protect braided rivers.

Best Practice Guidelines for Compliance, Monitoring and Enforcement under the Resource Management Act 1991 (the Guidelines) were launched by the Ministry for the Environment (MfE) in July 2018. The introductory message from Minister for the Environment Hon. David Parker says that the purpose of the Guidelines is to clarify what best practice looks like by providing guidance and support for front-line staff through standard tools and templates. The Guidelines have been developed with support from a panel which includes Council staff from throughout New Zealand. The Guidelines are comprehensive and range from chapters outlining compliance, monitoring and enforcement (CME) under the RMA, along with the various enforcement tools, through to practical advice for Council staff on approaches to site inspections and incident investigations, including the power of entry, the use of field kits and notebooks, evidence collection, interviewing and statements. The Guidelines will undoubtedly be a valuable tool for those staff dealing with enforcement matters on a daily basis, particularly for those Councils that have not developed detailed enforcement manuals. However, the Guidelines are equally interesting for lawyers undertaking criminal defence work in the RMA context, as the chapter on enforcement decisions steps through the ‘robust processes’ which Councils should have in place to guide the decision making process when exercising discretion about what enforcement response to adopt. Some Councils, such as the Waikato Regional Council, the Taranaki Regional Council, the Tasman District Council and Environment Canterbury, have enforcement policies which are publicly available on their websites. Where Councils have made their enforcement policies publicly available, this allows the public to better understand how the Council is likely to respond to non-compliances and know what to expect. (The Guidelines note that examples of ‘good enforcement policies’ include those from Tasman District Council and the Waikato Regional Council). However, not all Councils publish their enforcement policies. The Guidelines acknowledge that decision making processes on enforcement actions vary between Councils and go on to set out process and policies that are recognised as good practice. Key aspects of this include the following: Where the breach is significant, and an infringement notice, enforcement order or prosecution is contemplated, the decision should be referred to an ‘enforcement decision group’, if the Council has one, or a group of experienced staff to determine the appropriate response. Some Councils operate an open enforcement decision group, which can be attended by interested staff members, but if this is the case, then the final decision should sit with the core members of the group. Some Councils have an additional (or alternative step) where, if prosecution is contemplated, it is referred to a prosecution group after being considered by the enforcement decision group. This will have similar membership but may also include a lawyer. Prosecutions involve particular considerations against the Solicitor-General’s Prosecutions Guidelines as to whether prosecution is in the public interest, and legal considerations about the sufficiency of evidence and availability of defences. A decision to prosecute should therefore be contingent upon independent legal review, to ensure the public interest and evidential sufficiency tests are met. If the legal opinion suggests both of these tests are met, then the Council has the final decision as to what charges are filed, and against which defendant. Decisions about whether to take enforcement action in any particular case should not be made by councillors, due to the risk or perception of decisions favouring certain groups / individuals. It is good practice for final enforcement decisions to be delegated from the Chief Executive to the regulatory manager or other suitable decision maker in the Council. This is because Chief Executives may be perceived as being subject to administrative or political pressures to make a particular decision since they are appointed by elected representatives. If Councils have a policy of the Chief Executive approving prosecutions, then this is acceptable provided appropriate measures are in place to ensure a robust and transparent decision making process. The Guidelines will assist Councils throughout New Zealand to consider whether the processes that they have in place for deciding on enforcement action represent good practice. The enforcement policies, which some Councils have published on their websites, vary considerably in terms of how much detail they articulate about the process used to determine whether and if so what kind of enforcement action a council will take, so there may also be an increase in the level of detail with which this is communicated. In the absence of that, the Guidelines allow potential recipients of enforcement action to understand what sort of process should have been undertaken in determining whether and what enforcement action was appropriate. Article written by Vanessa Hamm for LawTalk (September 2018 Issue)

The Court of Appeal has confirmed that Part 2 of the RMA is once again relevant to resource consent applications. On 21 August 2018 the Court of Appeal released its decision of RJ Davidson Family Trust v Marlborough District Council [2018] NZCA 316, which clarifies how Part 2 of the RMA should be considered in resource consent applications. By way of background, in 2014 the Supreme Court in Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZSC 38 “King Salmon” determined that (contrary to existing caselaw) unless there are questions of invalidity, incomplete coverage or uncertainty of meaning in planning documents, there is no need to refer back to Part 2 when considering a plan change application. The High Court then concluded in RJ Davidson Family Trust v Marlborough District Council [2017] NZHC 52 that the reasoning of King Salmon applies to resource consent applications and decision makers are unable to refer back to Part 2 unless the King Salmon caveats apply because they are bound by its expression in planning documents. The Court of Appeal has now determined that the High Court’s conclusion was wrong. Given the factual and statutory context of King Salmon, the Court of Appeal does not consider that the Supreme Court intended to prohibit Part 2 being considered in resource consent applications. The Court listed the following additional three reasons to support that conclusion: • The Supreme Court made no reference to s 104 of the RMA or the phrase “subject to Part 2”;• There is no indication from the decision that the Supreme Court intended its reasoning to be generally applicable, including to resource consent applications; and• The statutory language of s 104 clearly contemplates direct consideration of Part 2 and there cannot be the same assurance outside the NZCPS that plans made by local authorities will reflect the provisions of Part 2. However the Court of Appeal did not entirely revert to the position before the High Court’s decision, that consent authorities would always consider Part 2 in considering resource consent applications. The Court of Appeal has now determined that in some situations recourse to Part 2 is not required: • Resource consent applications engaging the NZCPSThe Supreme Court in King Salmon concluded that the NZCPS complies with the RMA’s requirements and gives effect to Part 2. In light of this fact the Court of Appeal determined that if a resource consent application engages the NZCPS then considering Part 2 will unlikely provide any additional guidance. The Court of Appeal stated that Part 2 cannot be used to undermine a clearly relevant restriction in the NZCPS and doing so would expose the decision to being overturned on appeal. However the Court of Appeal noted that if the NZCPS does not provide a clear outcome then consent authorities can consider Part 2 for guidance. • Other plansThe Court of Appeal determined that relevant plan provisions are not properly had regard to if they are considered for the purpose of putting them to one side; consent authorities must conduct a “fair appraisal of the objectives and policies read as a whole”. It stated that if a plan was prepared having regard to Part 2 and has a coherent set of policies designed to achieve clear environmental outcomes then the policies should be implemented and recourse to Part 2 will not add anything, and cannot justify an outcome contrary to its policies. However consent authorities need to give emphasis to Part 2 if it appears the plan was not prepared in a manner that appropriately reflects Part 2. In summary, the Court of Appeal agreed with the High Court that allowing plans to be rendered ineffective by general recourse to Part 2 is inconsistent with the scheme of the RMA, provided that the plans have been properly prepared having regard to Part 2. However the High Court was incorrect to apply the reasoning in King Salmon with equal force to resource consent applications. Rather, the implications of King Salmon in resource consent applications are that proper application of relevant plans may leave little room for Part 2 to influence decisions. In terms of the present case, the Court of Appeal concluded that in the circumstances the thrust of the relevant NZCPS policies and the Marlborough Sounds Resource Management Plan could not have been put aside by recourse to Part 2 and the decision did not need to be overturned.

New fees and forms are introduced with small changes to service requirements due to recent amendments to the Resource Management (Forms, Fees, and Procedure) Regulations 2003. The changes are brought about because of recent amendments to the Resource Management Act 1991 (RMA) introduced by the Resource Legislation Amendment Act 2017 (RLAA). The change with the greatest implication is the new fee structure, with fees being introduced where previously none were payable. Scheduling and hearing fees are introduced and are to be prepaid; if they are not paid the registrar may vacate the hearing. If the hearing time is different to that estimated and the prepayment is insufficient the balance must be paid on the last day of the hearing, or alternatively a refund will be made. In the interests of justice, the registrar may waive fees if the applicant is unable to pay the fee, or the application is in relation to a matter that concerns the public interest and is unlikely to be brought if the fee is not waived. In these cases, the Registrar also has the power to postpone the fee until the application for waiver is determined, or if an application for waiver is not made the Registrar may refund the fee. Key changes to the fees include: Applications for most appeals $600 Commencing any other proceeding (except for applications for waiver or directions) $250 Interlocutory applications $200 Notices of a person’s wish to be a party to a proceeding (with limited exceptions) $100 Scheduling a hearing date (except for interlocutory applications) $350 Hearing fees (for interlocutory applications for each half-day or part half-day after the second day, or any other application for each half-day or part half-day after the first half-day) $350 New forms are introduced for the new collaborative and streamlined planning processes and the new permitted boundary activity. Existing forms are amended to make provision for fast-track resource consents. Changes to procedure include the service requirements for appeals against a decision on a proposed policy statement or plan, or a requirement in a plan or proposed plan now also apply to appeals by way of rehearing. Applications for resource consent or for review of consent conditions are now also to be served on persons with a relevant statutory authority. The move towards electronic filing and service is also apparent by amendments to the forms so that email is the default address for service. The amendments will be introduced in two stages; the first amendments come into effect on 14 September 2017, the second set come into effect on 18 October 2017 to coincide with other changes introduced by the RLAA. For more information on the amendments please contact Vanessa Hamm.

Minister for the Environment Nick Smith announced on 9 August 2017 that the National Policy Statement for Freshwater Management 2014 (NPSFM) would be amended and gazetted on 10 August 2017.  This represents the third set of amendments to the NPSFM since it was first gazetted in 2011 and then replaced in 2014. Much of the general press around the NPSFM has focussed on the ‘swimmability’ provisions.  Under these a national target is to have 90% of rivers and lakes swimmable by 2040.  However the amendments to the NPSFM are wider than swimmability.  Key changes include: Economic well-being: economic well-being objectives and policies are now included, for both water quality and water quantity. The objectives are to enable communities to provide for their economic well-being, including productive economic opportunities, in sustainably managing freshwater quality and quantity within    The policies support this by every regional council considering how to do this when giving effect to the NPSFM. The Minister’s announcement was careful to note that the inclusion of economic considerations was in a form that now makes explicit that these are within the context of environmental limits.  Regardless, this is a welcome change for resource users, especially post the King Salmon  and Davidson decisions, with the latter suggesting that it is not necessary to look back up to Part 2 of the RMA in a resource consent context.  If that is correct, then it is important that policy statements and plans reflect economic well-being and so the inclusion of this in the NPSFM brings in those broader considerations. Te Mana o te Wai: the NPSFM already recognised the national significance of Te Mana o te Wai but did not elucidate this, and the phrase has received much consideration. A key theme of the amendments to the NPSFM is to firmly embed Te Mana o te Wai in the NPSFM with an expanded statement regarding Te Mana o te Wai, and a dedicated objective and policy.  The NPSFM says that Te Mana o te Wai “is the integrated and holistic well-being of a freshwater body”. The expanded provisions regarding Te Mana o te Wai send a clear signal that it is here to stay as an integral part of freshwater management.  Hopefully the expanded attention given to Te Mana o te Wai will result in clearer interpretation and implementation than has been the case to date. Swimmability: as part of the swimmability provisions, regional councils are to develop regional targets to improve the quality of fresh water in ‘specific rivers and lakes’ – these are rivers that are ‘fourth order or above’ or lakes with a perimeter of 1.5k or more. Draft regional targets are to be available to the public by 31 March 2018 with final targets by 31 December 2018.  The targets look to improve the swimmability categories of specified rivers and lakes with respect to coli and cyanobacteria. Despite what critics of these swimmability provisions have said, this at least shows a move to not just maintain but at least improve water quality for contact recreation, which is something dear to New Zealanders’ hearts.  This adds another layer of work for regional councils around the country, most of whom are already mid implementation of the NPSFM 2014. More explicit attributes and monitoring: at a technical level, the attribute tables have become more explicit. In addition to the new coli and cyanobacteria attributes states, notes have been added to others such as Ecosystem Health – Rivers where, to achieve a freshwater objective for periphyton within a freshwater management unit, regional councils must at least set appropriate instream concentrations and exceedance criteria for dissolved inorganic nitrogen and dissolved reactive phosphorous.  Policy CB1(aa) of the NPSFM also sets out what monitoring methods must be used when regional councils are monitoring progress.  These include the monitoring of macroinvertebrate communities and Mātauranga Māori. The added detail on these matters will assist those working in freshwater management with collecting and analysing the right data for the purposes of enhance freshwater management. The amended NPSFM will come into force on 6 September 2017.

The government announced funding yesterday for freshwater improvement projects totalling $44M, with over $8M of that going to projects in the Bay of Plenty region. The grants are the first tranche of funding from the $100M Freshwater Improvement Fund announced last year and were made following a bidding process for the fund which opened on 23 February, closed on 13 April, and was then assessed by an independent panel in May with recommendations made to the Minister for the Environment in July. Within the Bay of Plenty the projects to receive funding are: The Rangitāiki River Wetland Restoration Project The Bay of Plenty Regional Council will receive $1.5M (out of an estimated $3M cost) to restore 206ha of wetlands across six high-value ecological sites. Located in the Rangitāiki River catchment, between Murupara and the lower limit of Lake Aniwaniwa (Aniwhenua Dam), this project will establish long-term management plans, install fencing to exclude stock, and inlcide removal of pest plants and animals and native riparian planting. The Katikati Hills to the Ocean - H20 Improvement Project This project by the Uretara Estuary Managers Incorporated will receive $250,000 out of an estimated total cost of $500,000. Increasing urban development and intensification of horticulture and farming are accelerating stream bank erosion, sedimentation rates and stream pollution events. This project is focused on four streams within the catchment and builds on previous work undertaken by the group. Interventions include fencing, riparian planting, fish passage and wetland construction and pest control. A citizen science monitoring component is also included. Lake Tarawera Sewerage Reticulation and Treatment A reticulated sewerage system, undertaken by the Rotorua Lakes Council and connecting to wastewater treatment, is proposed to remove 15 per cent of manageable inputs into Lake Tarawera which is facing the risk of an irreversible deterioration from high clarity through “flipping” into an algae-dominated state. The final design is subject to further investigation and community consultation. This project receives the largest contribution with $6.5M of an estimated $17.8M being contributed. With over $8M being allocated to the Bay of Plenty, it has been the largest recipient of funding in this round.

Urban Development Authorities – a fresh approach to urban development The Government is proposing new legislation to introduce Urban Development Authorities (UDAs). The proposal focuses around urban development projects – these are not limited to residential and can be in greenfield or brownfield areas. Under the proposal, a framework is provided to enable an urban development project and a UDA to be established.  The UDA must be majority publicly controlled and will be given powers necessary to achieve the strategic objectives of the given urban development project.  Once established, the UDA prepares a ‘development plan’. A UDA could be a regulator only and may partner with private entities who would be responsible for leading the development project and delivering the strategic objectives of the project. The powers available to a UDA are wide-ranging and include access to compulsory acquisition under the Public Works Act 1981, and land assembly powers to enable subdivision or land consolidation, or to reclassify, revoke, or reconfigure reserves (but not Maori, scientific or nature reserves).  Planning and consenting powers could also be given to the UDA which will then be the consenting authority for any resource consents (called development consents) necessary to complete the project.  A UDA can also be given powers to create, move, alter, extend, or build infrastructure, and fund it through targeted infrastructure charges or development contributions.  The powers given to the UDA will only endure for the life of the development project. As with recent amendments to the RMA and processes under the Housing Accords and Special Housing Areas Act 2013 (HASHA) processes under the proposal are ‘streamlined’.  There are no merits appeals in relation to the establishment of the urban development project and the UDA or the approval of the development plan.  There are also specific notification processes for activities included or not included in the development plan – with a requirement that the decision maker must consider submissions but not hold public hearings in either case.  The decision making considerations for planning and consenting within the project area are also ‘re-prioritised’ in much the same way as HASHA with the most weighty consideration being the strategic objectives of the development project followed by Part 2 of the RMA and then remaining RMA considerations. The proposal will no doubt receive mixed reviews – welcomed by eligible public entities and the private sector willing to partner with public entities, who wish to fast track urban development, but criticised by those who see the streamlined processes as a further erosion of public participation in planning and consenting processes. What is clear is that the proposal will, like HASHA, re-frame the approach to planning and consenting within an urban development project area.  If successful, one can expect to see various urban development projects and UDAs in New Zealand’s growing urban areas, with the dominant consideration for development in the project area being the strategic objectives of the project. Intended to complement the National Policy Statement on Urban Development Capacity and the Housing Infrastructure Fund, the discussion document was released by MBIE on 14 February 2017 and the period for submissions closes on 19 May 2017.

An interesting response to New Zealand’s urban planning problem is recommended in the Productivity Commission’s Report, Better Urban Planning, which was released on 19 August 2016.  Historically, New Zealand’s urban planning has developed without a great deal of guidance from central government, but this is about to change if the recommendations in the Report are implemented. The purpose of the Commission’s inquiry was to review New Zealand’s urban planning system and to identify the most appropriate system for allocating land use to support desirable social, economic, environmental and cultural outcomes.  The Report needs to be read in this context, as it did not attempt to provide a response to improving the regulatory framework for better urban planning design, as the name of the Report might suggest.  The Report focusses on the environmental outcomes the Commission says are most closely connected to cities, urban development and land use: air quality, drinking and recreational water quality, and climate change. In summary, the key recommendations in the Report, and perhaps the most interesting, are: a Government Policy Statement (GPS) on environmental sustainability, introducing market-based tools for environmental management, appointment of a permanent independent hearing panel (IHP) for certain applications under the RMA, limiting participation in the planning process, and the introduction of spatial plans as part of the planning system.  Each of these recommendations will now be discussed in turn. A GPS on environmental sustainability is an interesting tool to address urban planning (and the crisis at the forefront of many young New Zealanders\' minds – housing affordability) when the other options available under the RMA, such as a National Environmental Standard, or a National Policy Statement, are considered.  The only other GPS in place at present is the GPS on land transport, although other GPSs have been used to regulate electricity governance.  The Report says the GPS will set environmental priorities and principles so decision makers can prioritise environmental issues regarding scarce resources or conflicting objectives. A permanent IHP is recommended to hear matters on land use rules and policies, and the Environment Court would have a different role if the recommendations by the Commission are followed.  The Court’s role would be reduced due to the introduction of the IHP, limited appeal rights, and a narrower notification criteria.  This proposal appears similar to the process used for the proposed Auckland Unitary Plan. The Report’s recommendation regarding participation seem incongruous.  On one hand, the Report says that notification would be “more squarely focussed on those directly affected”, yet on the other hand the Report says there should be more representative consultation.  While there are obvious differences between notification and consultation, in terms of improving planning outcomes, narrowing participation in the process and limiting the ability to appeal council decisions seems at odds with the participatory nature of the RMA. It is a welcome change to see soft regulation options emerging, rather than prescriptive regulations which can be difficult to adapt to a changing environment.  The use of market-based tools to provide for responsive management seems a positive step towards improving regulation for urban planning and the Report identifies that a greater emphasis is needed on adaptive management. A good common-sense recommendation to improving the current system is the introduction of mandatory spatial plans as part of the planning system under the RMA.  The Report recognises that this may risk increasing the cost and complexity of the system, but says that possibilities exist to remove other parts of the planning system under the Local Government Act 2002 and the Land Transport Management Act 2003. The Report identifies two issues that the Commission is seeking feedback on, and the Commission is welcoming submissions on how best to address these issues.  The first issue is the preferred legal framework under which urban planning could be best addressed.  The options are either regulating planning under the RMA, or introducing a separate ‘built environment’ statute.  Perhaps this issue is not surprising given the move away from the statutory tools available under the RMA and the limited participation proposed in the recommendations. The second issue identified by the Commission was enforcement.  The Report recognised that in some circumstances it was possible that enforcement by locally elected bodies was problematic, and perhaps a more effective approach would be to expand the Environmental Protection Agency’s role and introduce regional offices.   This latter option is certainly appealing from an environmental management perspective due to the increased perception that enforcement is not a political tool.  The other alternative is to increase the oversight of regional councils. Submissions are sought on the draft findings, recommendations and questions raised in the Report by 3 October 2016.

The Environment Court has sent a sharp lesson to expert witnesses (and counsel) about the dangers of failing to comply with the Expert Witness Code of Conduct in two recent decisions. Britomart extension case The first case, Tram Lease Ltd v Auckland Council [2015] NZEnvC 137, involved an appeal by Tram Lease Ltd (TLL) against Notices of Requirement to create a 3.4km underground railway line linking Britomart and the North Auckland Line. The Court began by raising its concerns with the experts\' decision to terminate expert conferencing part way through the process, which as a result, saw the Court faced with voluminous evidence and highly polarised parties. The Court was highly critical of this, noting it was contrary to the Court\'s expectations of conferencing and necessitated further conferencing and the production of a statement of issues in dispute, all of which resulted in further time and cost in the proceedings. Counsel also did not escape criticism, with the Court reminding counsel of their responsibility to ensure witnesses undertake conferencing to a professional conclusion and manage client expectations in this regard. Significantly, the Court went as far as to comment that it may consider adopting the New South Wales approach of limiting experts to one Court-sanctioned witness per discipline. Turning to the expert evidence, the Court had \"significant\" concerns with TLL\'s planning evidence, finding that it was \"unconstructed, unsupported by much reasoning\" and used \"pejorative and unprofessional expressions about other people and other evidence\". The Court\'s key concerns with the planning evidence were: The tendency for over-confident assertions of opinion without professional analysis of fact, planning instruments or other evidence. The witness\' approach of asking the Court to \"trust his judgement\" based on previous experience in infrastructure projects. Numerous statements which amounted to advocacy, which was contrary to the Expert Witness Code of Conduct. Approaching evidence in chief by starting with a strong negative advocacy position supported by little reasoning. Offering conclusions on matters that should be left for the Court (i.e. the ultimate issue of the case). The Court was sufficiently concerned that it took the rare approach of questioning the planning witness on the obligations in the Code of Conduct and offering the witness the opportunity to resile or amend his position, which he chose not to do. The Court again levied criticism at counsel, reminding counsel that its duty is to ensure witnesses perform professionally from the earliest stage of the proceedings. The witness\' conclusions on the \'ultimate issue\' proved particularly concerning for the Court. The Court noted that evidence which attempts to supplant the Court\'s role as the ultimate decision maker on issues central to the case can result in that evidence being inadmissible (citing the recent Privy Council decision in Pora v R [2015] NZPCI; [2015] UKPC 15 (3 March 2015)). However, due to the belated outcomes of conferencing and narrowed issues in dispute, much of the planner\'s evidence was not needed and the Court was not required to make a finding on this issue. Ultimately, the appeal was unsuccessful. Mt Albert viewshaft case The second case, Tram Lease Ltd v Auckland Council [2015] NZEnvC 133, involved TLL as an appellant against a plan change proposing a viewshaft toward Mt Albert over TLL\'s land. A differently constituted Court again raised concerns with TLL\'s same planning witness failing to comply with the Code of Conduct. The Court again reiterated that an expert witness\' overriding duty is to assist the Court impartially, not determine the ultimate issue of the proceedings, and that attempting to do so may make that evidence inadmissible (also citing R v Pora). The Court was particularly critical of planners taking this approach in complex cases, commenting: \"This Court, as the fact finder, must reach conclusions based on a multi-faceted interplay of fact (existing and predictive), analysis and projections, law, and often elements of integration and judgement. It is a complex task integrating a series of disciplines. We cannot see how an expert in a single discipline can reach a conclusion on the ultimate issue where the outcome requires such integration.\" The Court traversed the duty of an expert witness and the role of opinion evidence, considering that higher standards of accuracy and objectivity are required if opinion evidence is to carry any weight with the Court. The Court concluded that an expert opinion must be predicated upon: The law and facts as they apply to the situation; Other assumptions that the witness must express in their opinion; and The coherence and reasoning process - being how the law, facts and assumptions lead to the opinion. For a number of reasons (similar to those in the Britomart case), the Court found that the planner\'s evidence failed the above thresholds and overall was \"unhelpful, obfuscatory, and without underpinning rational extension from existing plans, facts or law.\" The evidence was disregarded in its entirety and the appeal was unsuccessful. Unsurprisingly, the Court commented that the conduct of the appellant\'s case may justify the respondent council seeking costs. Lessons to be learned The TLL cases demonstrate the need for expert witnesses to remain mindful of their duties under the Code of Conduct to be objective, impartial and helpful to the Court when preparing and giving opinion evidence. The cases also serve as a reminder of the importance of \'going back to basics\' when preparing evidence by ensuring an opinion is supported by clear, concise reasoning and analysis based on fact and evidence. Finally, and possibly the most critical, experts should avoid offering a conclusion on the ultimate issues of the case. That determination sits with the decision-maker. Overall, the key message for expert witnesses is to stick to the Code of Conduct and you can\'t go wrong. Counsel are equally responsible for ensuring this occurs. As we see from the TLL cases, failing to do so risks incurring the wrath of the Court, which can have serious consequences for an expert\'s reputation and the client\'s interests.

Papakāinga development – turning aspiration into reality This article was published in the November 2014 edition of the Resource Management Journal. Introduction The recently announced Māori Housing Strategy cites planning restrictions as a key aspect of why Māori are under-represented in housing ownership. This article explores the increasing push by tāngata whenua for papakāinga housing development on multiple-owned Māori land and how this interfaces within the Resource Management Act 1991 (\"RMA\") regulatory framework. After setting out the context for Māori aspirations to establish papakāinga, this article goes on to consider the role District and Regional planning documents have had in these developments. Using papakāinga in Western Bay of Plenty / Tauranga as an example, the article explores some of the key challenges faced and how those involved sought to overcome the RMA planning hurdles. Housing affordability is without doubt high on the radar across New Zealand. While recognising that papakāinga can form only part of a wider solution for housing needs, the authors suggest that proactively facilitating papakāinga development through the planning framework presents a real opportunity to address Māori housing affordability – and one that is still largely untapped. To take up the opportunity in a meaningful way, territorial authorities that are yet to do so need to include objectives, policies and rules specifically enabling papakāinga in their second generation district plans, and regional plans need to ensure similar treatment for such developments in a consistent and integrated manner. This article suggests that further impetus for change may come through the proposed RMA reforms and the introduction of an explicit requirement to consider housing affordability in Part 2. However, to have a more direct impact on the lower order planning framework for papakāinga the development of national policy and / or standards to support the legislative amendments would give greater certainty to the outcome. What is Papakāinga? \"Papakāinga\" is a term that can encapsulate a range of development on Māori land, although it is most commonly used in the context of residential development. \"Kāinga\" translates in this context to a village or settlement, while the “papa” is a reference to Papatūānuku or the earth-mother, which adds an element of nurturing. The concept of a nurturing place to return to underlies the reason for establishing papakāinga, particularly when these are set up for the elderly or for young families. Although often viewed as rural development, this is probably more a happen-stance since a large portion of multiple-owned Māori land is in rural areas. Similarly, papakāinga has typically been associated with Marae, however this is not necessarily the case. The return of lands through Treaty settlements may see more urban papakāinga development (such as the papakāinga development in Orakei, Auckland and the Te Hou Hou block in Papamoa, east of Tauranga). Driven by the specific aspirations and needs of the respective landowners, papakāinga will vary in terms of both focus and design. These projects are not necessarily for the elderly or for young families, and are also not always remote from towns and main centres. Who will live in the papakāinga very much depends on how the whanau, hapu or iwi prioritise their housing plans. Nor is there any fixed design pattern for papakāinga, although there is typically a higher level of density and a more communal focus in terms of living arrangements. Again, the layout and design will depend on the preferences of the particular whanau, hapu or iwi, as well as factors like the presence of a Marae and the tikanga of how buildings should be orientated. These differences present challenges to both those promoting papakāinga developments and those trying to regulate or facilitate them. Barriers to uptake The drive for papakāinga was (and is) an aspect of looking to find solutions to the long term decline in Māori housing standards, in particular the need to reverse the trend of declining Māori home ownership, and the corresponding increase in long-term rental accommodation, particularly in urban areas (Ministry of Business Innovation and Employment He Whare Āhuru He Oranga Tāngata / Māori Housing Strategy: Directions 2014 to 2025 (July 2014), page 4). It also stems from a desire by iwi and hapu to utilise their remaining landholdings and to improve social standards and health. Establishing a papakāinga development is a considerable undertaking. Apart from the planning restrictions faced under the RMA, the key matters to address are: The legal and practical challenges arising from multiple-owned Māori land. To enable decision-making about the land in question there is much ground work involved to set up a trust or incorporation or to just locate and engage with multiple owners. Establishing papakāinga may involve creating interests where the occupier owns the house but not the land such as through licences to occupy issued by the trust or incorporation (these are common) or occupation orders granted by the Māori Land Court and to which family members may succeed. There are also challenges where the development involves an alienation (for example, because a mortgage or long-term lease is required). The efforts of the Māori Land Court to help whanau, hapu and iwi navigate these requirements and also to work in with local authorities has been extensive and invaluable. Start up capital will always be a significant factor. Loans from banks can be challenging given that most security in New Zealand is over a freehold tenure. There are inherent problems with security over a building - issues such as depreciation can result in the value of the mortgage exceeding the value of the secured asset. In the late 2000s changes in the funding approach saw a range of contestable funds set up to operate in tandem with existing loan-based models (although funding from the Social Housing Unit, a branch of the Ministry of Business Innovation and Employment, has now ceased and the only real option is through loan schemes such as the Housing New Zealand Kainga Whenua loans). Financial viability is also a major challenge given the need to balance debt and construction costs against what is inherently intended to be low cost living. As the costs to build on Māori land are generally higher given there is often no infrastructure to rural sites, innovative solutions with smaller and smarter house designs need to be employed. These developments are often made affordable by the land being provided by the trust or incorporation at no cost or by only requiring minimal rents. At the Tamapahore Marae Village (discussed later) for example, the hapu expressly sought that rents paid by the tenants, who are either retired or elderly, not exceed 25% of their income. Locational constraints mean that it is often a case of fitting a papakāinga into any given land block, as opposed to a carefully selected and zoned greenfield site. As a result of historical developments, a large portion of Māori land is often located in marginal areas which can create significant servicing problems (water, sewerage etc). The additional layer of complexity and cost then added by the RMA and other statutory requirements becomes all the more problematic when considered against this backdrop. Numerous guidelines, handbooks, websites, internal Council policies etc. have been created as part of the push to provide for papakāinga housing in order to guide applicants through the numerous legislative and regulatory requirements a papakāinga development is likely to face, including the RMA, Te Ture Whenua Māori Act 1993 (\"TTMA\"), the Local Government Acts and the Building Act 2004. This forms the context for the Māori Housing Strategy, which makes an example of some of the work in the Bay of Plenty that is explored in more detail in this article. The Māori Housing Strategy seeks to actively promote the removal or minimisation of the hurdles that face those looking to undertake a development on multiple-owned Māori land. The role of papakāinga-specific provisions In terms of central government responses, the Auditor General recommended local authorities improve co-ordination on the issue of Māori housing and noted the problem of district plans limiting the ability to provide housing (Office of the Auditor-General Government planning and support for housing on Māori land (August 2011), page 16). Planning rules on Māori housing in second generation district and regional planning documents are now relatively common. For RMA practitioners at least, these provisions are just the tip of the iceberg and do not necessarily reflect the much larger underlying body of work. The papakāinga rule frameworks in Western Bay of Plenty / Tauranga and elsewhere (including Hawke\'s Bay, Northland and Auckland) represent the end result of a collaborative process involving a range of stakeholders, including iwi, hapu, local authorities, government agencies, as well as the Māori Land Court. The Western Bay of Plenty / Tauranga experience The driver for changes to the two relevant district plans (the Tauranga City Plan and the Western Bay of Plenty District Plan) was very much a result of trying to overcome the difficulties experienced by projects such as the Horaparaikete Papakāinga. Located on rural land outside Welcome Bay, a suburb of Tauranga, on the back road to Te Puke, the Horaparaikete Papakāinga was initially conceived in 2004. The concept was for 5 dwellings to take up approximately 1 hectare of a 32 hectare block of multiple-owned Māori land. An Ahu Whenua Trust was established for this purpose (a significant undertaking in its own right). The intention was to cluster houses around a central communal house with satellites in order to maintain the rural productive use of the land (dry stock farming). The activity required a full discretionary resource consent because it exceeded the two lot limit for permitted dwellings in the Rural Zone under the Tauranga District Plan. The consent application went through a costly publicly notified process. Financing came from a combination of fundraising, a Tauranga Moana Trust Board loan and a variety of grants, with construction beginning in 2008 and completed some two years later. A major challenge was fulfilling servicing requirements given the rural location, such as the need for fire fighting water supply and upgraded power supply. In the wider Western Bay of Plenty area, what followed was a lengthy process to raise the profile of the challenges facing papakāinga, and to directly lobby both central and local government for change to facilitate these developments. The planning response has seen provisions included in both the Tauranga City Plan and the Western Bay of Plenty District Plan, both of which were reviewed in the late 2000s. For Tauranga City, the final outcome in the now operative Tauranga City Plan is twofold. First, a general papakāinga rule in the Rural Zone allows 3 to 10 dwellings on multiple-owned Māori land as a controlled activity, and a maximum of 30 as a restricted discretionary activity. A specific set of provisions is also included for an urban papakāinga located in the suburb of Bethlehem. Second, Rural Marae are recognised through spot zoning, with set numbers of houses for each Marae (for example, 50 independent dwelling units can be built in the Waikari Rural Marae Community Zone as a permitted activity provided the relevant standards are met). The rules also manage issues such as amenity and the rural land resource, with suitable modifications such as requirements for an outline development plan (for Rural Zone papakāinga), or modified amenity rules in the Rural Marae zones (for example, amended overshadowing requirements so that this only applies to the boundaries of the zone, and not between internal buildings). For amenity reasons, housing at Urban Marae are also recognised through specific zoning and rules, but the area of land required for each dwelling mirrors the minimum lot size required for the underlying Residential Zone. The Mangatawa Papakāinga Village located near Tamapahore Marae in Papamoa, east of Tauranga is an example of a development that was able to utilise these new provisions. Ten two-bedroom homes were initially established on a hill-side site, and were situated to look back to Mauao (Mount Maunganui) and Tuhua (Mayor Island), both of which have strong cultural significance. As the land was within the specifically developed Tamapahore Rural Marae Community Zone in the new Tauranga City Plan, up to 35 houses could be constructed as a permitted activity. An initial ten houses were constructed in partnership with Housing New Zealand, who provided a loan and grant to establish the papakāinga. Although the hapu retains ownership of both the land and houses, these are leased to Housing New Zealand, with tenants selected from the shareholders provided they are over 60 years of age. A further 22 houses will be established outside the Housing New Zealand partnership. The process was much smoother and less costly, owing largely to the planning framework being specifically designed to accommodate papakāinga on the subject site. In the Western Bay of Plenty District Plan (the majority of which was made operative in June 2012), papakāinga development is provided for in the Rural Zone as a controlled activity, with the numbers of dwellings able to be constructed on multiple-owned Māori land set at 5 if located on an unsealed road, and 10 if sealed (the two Islands in the District are simply allowed 10 houses on multiple-owned Māori Land regardless of whether the roads are sealed). All papakāinga require an average of 2000m2 of net land area per dwelling, so the lot size will also govern the size of any papakāinga. On sealed roads, 11 to 30 dwellings can be constructed as a restricted discretionary activity. In both cases, either a site plan (in the case of the controlled activity) or a structure plan (in the case of the restricted discretionary activity) requires Council approval, with consideration given to a range of issues such as housing location and servicing, or more widespread issues where higher numbers of dwellings are planned. The changes led by the wide range of stakeholders in the wider Western Bay of Plenty area also culminated in the development of Te Keteparaha Mo Nga Papakāinga – Māori Housing Toolkit. Considerable input came from a number of iwi and hapu, the Western Bay of Plenty Māori Housing Forum, the relevant local authorities, SmartGrowth (an organisations charged with spatial planning in the Bay of Plenty), central government agencies (including Te Puni Kōkiri), the Māori Land Court, and a range of individuals and consultants. The Toolkit is a step-by-step guide designed to assist Māori to develop papakāinga proposals on multiple-owned Māori land and covers a much wider range of issues than just the RMA planning framework. While not essential to the utilisation of the Toolkit, with the assistance of funding from Te Puni Kōkiri, its practical implementation has been enabled through a series of facilitated workshops with Māori Land Trusts to help advance a project through the five steps (or stages) of the Toolkit process. The workshops are attended by a range of technical experts and other agencies who have input into the detail of the papakāinga. Importantly the relevant Bay of Plenty regional plan dealing with non-reticulated effluent systems (the On-site Effluent Treatment Plan) also contains a suite of rules that apply to housing located with the Tauranga City and Western Bay of Plenty local authority areas (outside the Tauranga City Urban Area) and developed using the Toolkit process. To be consistent with district plan thresholds, systems servicing up to 10 houses and associated community facilities have controlled activity status, with Regional Council retaining control over matters such as discharge volumes and the size and location of land application areas. As explained in the plan, developments that use the Toolkit will proceed through a specific development pathway, with the support of Toolkit partners. This process is said to lessen the risks of adverse effects from multiple units reliant on on-site effluent treatment systems on the same property, with Regional Council committed to assisting to ensure that technical and information supply requirements are met. The planning provisions described above now sit under the recently made operative Bay of Plenty Regional Policy Statement 2014 which contains direct policy support for provision to be made for the development of multiple-owned Māori land for papakāinga, Marae and associated community facilities. The critical point of these provisions is to create an easier regulatory pathway for papakāinga and, although still likely to require technical input, the move to favourable activity classifications has given certainty of outcome and has made the application process considerably less daunting for anyone looking to develop papakāinga. While this article focusses on the Bay of Plenty, the issues are common across the country. Similar moves to recognise the challenges and minimise them through the planning framework have taken place in a range of areas, including Hawke\'s Bay, Northland and Auckland to name a few. How can the RMA better play its part? Perhaps the biggest challenge facing papakāinga development comes from the complexity of modern RMA plans. Added to the inherent challenges of developing Māori land, the prospect of an arduous consenting process can be a bridge too far and the difference between a papakāinga development remaining an aspiration and it becoming a reality. It is suggested that the model developing in a number of areas in New Zealand whereby the issues are addressed with the involvement of a range of stakeholders is a sound way to develop papakāinga provisions. The involvement of regional councils is also important and allows for an holistic consideration of potential difficulties. To the extent possible, a consistent approach between district and regional plans is particularly important to ensure that favourable district plan provisions are not undermined by additional regional consenting requirements. For a number of reasons, planning documents are geared towards a \'one house per lot\' paradigm in terms of managing adverse effects. Absent papakāinga-specific provisions, applications face a struggle when assessed against provisions designed to manage issues such as the control of the fragmentation of rural land as a result of lifestyle subdivision, or to provide for urban amenity through controls such as minimum yard requirements. While in no way a criticism (there is clearly a need to manage such issues), papakāinga development will not raise the same issues, or at least not to the same extent, given the more collective approach (for example, the use of clusters and desire to have close connections with neighbours rather than privacy). It is suggested that the long-delayed RMA reforms may well assist in this regard, albeit indirectly. The 2013 reform documents proposed that the RMA directly recognise housing affordability in section 6 (Ministry for the Environment Resource Management Summary of Reform Proposals (August 2013), page 29). This will add another layer of support, beyond section 5 (enabling cultural wellbeing) or section 6(e) (recognising and providing for the relationship with ancestral lands), when seeking papakāinga-specific provisions. While the Housing Accords and Special Housing Areas Act 2013 may assist with the issue of Māori housing affordability to the extent that any special housing area take place on Māori land, something more specific is needed to address the different characteristics of papakāinga and of its development. The authors suggest that to have a more direct impact on the lower order planning framework and to ensure consistency the government should consider using RMA tools already at its disposal such as the development of national policy and / or standards to really push for and assist these developments to get off the ground.

Section 122(1) of the Resource Management Act 1991 (RMA) states that a resource consent is neither real nor personal property.  However, resource consents are often treated as property given that a resource consent is inherently valuable to the consent holder.  This is commonly witnessed in the practice of resource consents being bought, sold and leased via the transfer provisions of the RMA, particularly in respect of water permits. Recent cases have considered the nature of a resource consent, notably in the high profile Government asset sales cases of New Zealand Māori Council v Attorney General [2012] NZHC 3338, New Zealand Māori Council v Attorney-General [2013] NZSC 6, [2013] 3 NZLR 31 (collectively referred to as the Assets Sale Cases).  The Supreme Court\'s description of a resource consent went further than the High Court\'s decision in Aoraki Water Trust v Meridian Energy Ltd [2005] 2 NZLR 268 (HC), where the Court had found that a resource consent conferred a right to use a resource. This article will focus on how the Courts have treated resource consents in recent case law and the implications of these decisions for a consent holder and the RMA. The purpose, applicability, and limits of s 122 RMA When is a resource consent treated as property? Under s 122(1), a resource consent is neither real nor personal property.  Unless expressly provided otherwise in the conditions of consent, the exceptions to s 122(1) relate to: (a)    Succession upon the death of a consent holder (s 122(2)(a))); (b)    Bankruptcy (s 122(2)(b))); (c)    The Protection of Personal and Property Rights Act 1988 (s 122(2)(c))); and (d)    A general exception allowing the consent holder to grant a charge over a consent as if it were personal property (s 122(3)). In those situations, a consent holder (or a third party) can treat a resource consent as personal property to the extent that the consent holder would have been able to do so. This is a common caveat throughout the exceptions.  For example, in a bankruptcy, the Official Assignee can \'sell\' the resource consent to pay creditors, but only if the resource consent can be transferred.  While resource consent conditions may restrict a transfer, practically it is rare for conditions to do this, and restrictions are more commonly set by the RMA and rules in a plan. In summary, the transfer provisions of the RMA provide: (a)    A coastal permit may be transferred (all or in part) only where allowed by a condition of consent (s 135); (b)    A permit to dam and divert water may be transferred to a person on the same site by giving written notice to the consent authority (s 136(1)); (c)    A permit to take and use water may be transferred (all or in part) to the owner or occupier on the same site by giving writtennoticeto the consent authority.  A water permit may be transferred to another site if the transfer is allowed by a regional plan and the necessary application has been approved by the consent authority (s 136(2)). (d)    A discharge permit may be transferred to a new owner by giving written notice to the consent holder, or to a new site if allowed by a rule in a regional plan and the necessary application is approved by the consent authority (s 137). Combined, s 122 and ss135 to 137 allow a consent holder to utilise the economic value of a resource consent and treat the consent as property, provided the consent allows for this.  This can be by way of lease or sale of a consent, or using a consent as leverage or collateral. Case law The facts of Aoraki Water Trust v Meridian Energy Ltd are well-known and involved applications for declarations by Aoraki Water Trust (Aoraki) about whether the Canterbury Regional Council was constrained in granting Aoraki\'s resource consent application to take water from Lake Tekapo in light of Meridian Energy Limited\'s (Meridian) resource consents. Meridian opposed the declarations on the grounds that as Lake Tekapo was fully allocated under its resource consents, it had the right of non-derogation and legitimate expectation. The High Court considered that resource consents were not real or personal property, but conferred a right to use a resource (ie. water from Lake Tekapo).  Granting a permit to Aoraki would reduce Meridian\'s ability to generate electricity and therefore devalue the permit (at [35]). The High Court found that the principle of non-derogation fromgrantwas applicable to all legal relationships which confer a right in property (at [36]).  Meridian enjoyed a legitimate expectation that the rights created by its resource consents would not be eroded by the consent authority.  Aoraki has been regarded as the leading case on the nature of a resource consent. In Armstrong v Public Trust [2007] 2 NZLR 859 (HC), the High Court considered whether the applicant was the sole holder of a coastal permit under the common law survivorship of a joint tenant.  The applicant, Alan Armstrong, and his father, John Armstrong, held coastal permits in the name of J &A Armstrong to erect whitebait stands in the coastal marine area at Moeraki River.  Following John\'s death, Alan applied for a declaration that he was the sole consent holder. The application was opposed by the Public Trust who represented the deceased\'s daughter. In considering the Public Trust\'s argument that s 122(1) was absolute, the Court held that it did not interpret s 122(1) as meaning that Parliament had set its face against the creation of property rights as incidental to holding consents under the RMA.  That proposition was confounded by clear exceptions to s 122(1).  Rather, the purpose of s 122(1) was to prevent the unfettered transfer of resource consents except where specifically provided (at [18]-[19]). The Court found that to the extent that the RMA allows property rights, the common law as to real and personal property will apply, subject to constraints in the specific provisions of the RMA (at [23]).  The Court declared that the applicant was the sole holder of the consent by virtue of joint tenancy. Armstrong v Public Trustis important as the High Court acknowledged that it was not the intent of Parliament to absolutely prohibit any property rights being conferred by the grant of a resource consent.  Rather, it is the consent holder’s ability to transfer theconsentthat was intended to be constrained. Recent developments in case law Two recent cases have considered the decision in Aoraki and s 122(1), being the Assets Sale Cases and a High Court taxation case involving resource consent expenditure. Crown Assets Sale Cases The Assets Sale Cases where the New Zealand Maori Council challenged the lawfulness of the government\'s proposed sale of up to 49% of its shares in Mighty River Power Limited (MRP) has provided interesting commentary on the nature of a resource consent. The claimants\' position was that MRP\'s resource consents were a form of property, and therefore the claimants had a direct claim to theconsentsunder the provisions of the State Owned Enterprise Act 1986 and s 64 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 (which related to the Crown\'s consultation obligations). In the High Court, the claimants relied onAorakito say that the considerable economic value of resource consents could only be explained on the basis that such value derives from the use of property (ie. water) according to its permit. Justice Young noted that the High Court inAorakiwas careful not to say a resource consent was a form of property.  In dismissing the submission, the Court said that: I consider the meaning of s 122 is straightforward. ….. There are only two forms of property in New Zealand, real and personal.  A resource consent is neither.  The fact that in limited circumstances a resource consent holder may be able to act if the consent is property through specific statutoryauthorisationdoes not generally make a resource consent property. (at [216]) On appeal, the Supreme Court found: We accept that the water permits used by Mighty River Power are properly regarded as interests in the Waikato River (differing in this from the position taken in the High Court in reliance on the fact that s 122 of the Resource Management Act provides that resource consents, of which water permits are a kind, are not property).  …… For the purposes of the Settlement Act, they may well be “property” and are in our view certainly an “interest” caught by s 64. If excluded from the application of s 64, it is difficult to see what could be within the meaning of “certain assets” (in the heading to the part containing s 64) or an “interest” in the Waikato River (referred to in the text of s 64), of concern to the negotiating parties and able to be created by a statutory or other process. (at [81]) The Supreme Court went on to say that the issue was not whether water permits were property rights or interests, but whether the proposed share sale was a disposal of such rights or interests, and did not consider the nature of the water permits further. Trustpower Limited v The Commissioner of Inland Revenue Trustpower Limited v Commissioner of Inland Revenue[2013] NZHC 2970, (2013) 26 NZTC 21-047 involved a dispute over expenditure incurred by Trustpower Limited (Trustpower) in obtaining resource consents for four projects, being the Arnold and Wairau River hydroelectric power schemes and the Kaiwera Downs and Mahinerangi wind farms.  While the main issue in Trustpower was how resource consent expenditure is treated under the Income Tax Act 2004, the High Court made a number of comments on the nature of a resource consent. Trustpower claimed that approximately $17.7m of expenditure for the projects over the 2006 to 2008 tax years was deductible as feasibility expenditure as the projects remained in the development pipeline and were yet to be constructed. The Commissioner of Inland Revenue disagreed on the grounds that the cost incurred for obtaining the consents was capital expenditure incurred for the purpose of developing and acquiring an asset, and therefore not deductible. The High Court considered s 122(1), citingAoraki, Marlborough District Council v Valuer General[2008] 1 NZLR 690 (HC) (where the High Court found that mussel farms authorised by a coastal permit were not property and not rateable as land (at [41] – [59])) and the Assets Sale Cases.  In considering those cases, the High Court commented that the RMA established the legal arrangements into (eg. a resource consent applied for and obtained), but did not dominate in the tax context (at [73]). The High Court considered that Trustpower\'s resource consents were permissive as Trustpower could not legally construct any of the projects as without the consents (at [82]).  The High Court accepted that the resource consents were valuable to Trustpower, but only as part of a bundle, package or suite of rights.  The value of resource consents would be tenuous at best given that resource consents on a stand-alone basis would be of little interest in a sale and that any value could only be as part of an overall package (at [94]-[95]). The Court concluded that it would be artificial from a practical and business point of view to regard them as separate stand-alone assets in their own right (at [97]). Trustpower was ultimately successful. Implications of recent decisions In the Assets Sale Cases, the Supreme Court differed from the High Court and considered that MRP\'s water permits could well be property, which is a progression from the High Court\'s description in Aoraki.  Thissuggesta willingness to move further than Aoraki in describing the nature of a resource consent.  The High Court\'s view in Trustpower is more consistent with Aoraki as it considered that Trustpower\'s resource consents were permissive and not stand-alone assets.  It is important to note that both decisions were made in the context of specific legislation rather than from a purely RMA perspective. Does the Supreme Court\'s view that a resource consent may well be property have any implications for the consent holder? Solely within the framework of the RMA, describing a resource consent aspropertyis not likely to create any greater rights for a consent holder.  The RMA clearly contemplates that a consent holder is able to utilise the rights created by a resource consent, with the value of those rights determined by the benefit to the consent holder and the consent holder\'s ability to transfer or leverage the consent.  However, the description of the consent will not defeat or avoid constraints under the RMA. What can be drawn from the Supreme Court and Trustpower is that s 122(1) is not necessarily the start and end to how a resource consent is treated in other jurisdictions.  In those situations, it is likely that the Court will very much be guided by how a resource consent fits into the principles of any specific legislation, rather than relying solely on s 122(1). If s 122(1) is not a barrier to a resource consent being treated as property, the implications of the recent decisions may benefit parties in equitable or common law jurisdictions.  The use of alternative jurisdictions is not uncommon and has arisen where a party seeks to obtain a benefit not otherwise provided for under the RMA. This was seen in Aoraki where the common law right of non-derogation applied to Meridian\'sconsentsand in Armstrong where the High Court applied common law principles of joint tenancy. The benefit of alternative jurisdictions is demonstrated by comparingHampton v Hampton[2010] NZEnvC 9, [2010] NZRMA 412 withMain Farm Ltd (in Rec) v Otago Regional CouncilHC Dunedin, CIV-2010-412-000385, 21 November 2011. Hampton v Hamptoninvolved a water permit applied for by, and granted to, Simon Hampton to take 777,600 cubic metres of water annually for the purpose of irrigating two Canterbury farms, one owned by Simon and the other by Simon\'s cousin, Robert Hampton.  The dispute arose when Simon intended to transfer part of the water permit to a third party and further compounded by the fact that (at that time) Robert would be unlikely to obtain his own resource consent due to allocation issues.  Robert\'s ability to prevent the transfer was limited as he was not named as the consent holder. Robert initially commenced enforcement proceedings that he be named as the joint consent holder but the issue was ultimately considered in the context of declaration proceedings. The Court acknowledged that resource consents are not real or personal property, but were in a category of their own, finding that \"clearly a consent ispropertyin an economic sense but there is no necessary link to ownership of any other property\".  The Court also considered that resource consents conferred quasi-property rights (at [14]-[15]). The Court noted that Simon may hold the part of the water permit relating to Robert\'s land on a constructive trust for Robert but was unable to address this issue due to jurisdiction.  The Court held that it would be inappropriate to make the declaration that Robert should be named as the consent holder given Simon was the resource consent applicant and that this position would continue until the resource consent transfer process had been approved (at [34]).  Robert ultimately obtained his own resource consent and the issue of his ownership was not further considered by the Courts. Hampton v Hamptoncan be contrasted with Main Farm, which was considered in the context of equitable property rights. Main Farm involved a series of transactions for the purpose of gaining control of dairy farms in the Maniototo area to be managed under a joint venture entity.  A sale and purchase agreement required the vendor, Alnwick Limited, to assign a water permit authorising 400,000 litres of water per hour from the Taieri River to the purchaser, Main Farm.  The water permit was held in the name of Mr Carr, the sole director and shareholder of Alnwick Limited, and Mr Beattie, a neighbouring landowner.  Mr Carr alsobecomea part of the joint venture.  The parties were aware that the water permit identified in the sale and purchase agreement had expired and that a replacement permit had been applied for by Mr Carr and Mr Beattie. The relationship between the joint venture parties ultimately broke down, the joint venture was placed in receivership and numerous civil proceedings followed.  During the course of the civil proceedings, the resource consent was granted as separate water permits to Mr Carr and Mr Beattie. The receivers requested that the Council transfer the consent to Main Farm, which the Council refused to do for lack of jurisdiction.  Mr Carr also refused to transfer the consent voluntarily as he claimed it was worth $500,000-$600,000 and intended to sell or lease the permit.  Main Farm initiated proceedings against Mr Carr seeking that he transfer the water permit to Main Farm. Counsel agreed that the issue was whether Main Farm held equitable property rights to the renewed resource consent.  While not specified in the decision, this was likely due to the fact that the water permit was a new consent and the consent holder was not a party to the sale and purchase agreement.  The Court did not specifically consider s 122(1) and found that what was sold to Main Farm was a \"bundle of rights\" and that the vendor \"clearly holds the legal title to the water right on trust for Main Farm\" (at [54]) (though we note that the reference to \'legal title\' is incorrect). The Court ordered Mr Carr to transfer the water consent to Main Farm. Main Farm demonstrates the ability of a party to obtain relief where it has an equitable property right to a resource consent.  However, it is possible that the Supreme Court\'s view that a resource consent could be property, and the inference that s 122(1) is not necessarily determinative on the nature of a resource consent, may result in more parties turning to alternative jurisdictions where property rights are at issue given the limitations under the RMA. Conclusions The Courts have long recognised that the nature of a resource consent is not as straightforward as set out in s 122(1).  The Courts have considered that a resource consent confers a right to use a resource (Aoraki), gives quasi-property rights (Hampton v Hampton) and could be property (Assets Sale Cases). Regardless of how it is described, what is certain is that a resource consent creates rights.  In a narrow RMA context, the various descriptions will continue to provide little practical consequence as the ability of a consent holder to utilise the economic value of these rights remains constrained by the transfer provisions of the RMA, any rules in a plan andfeasibly, though rare, the conditions of a resource consent.  For the consent holder, the status quo remains. However, in a wider context, the Supreme Court\'s decision has progressed Aoraki by acknowledging that a resource consent could be property.  It can also be drawn from the Supreme Court and Trustpower that s 122(1) is not necessarily the final say in determining the nature of a resource consent.  This may benefit a party in jurisdictions outside the RMA.  Further, although the ability to obtain relief outside of the RMA is already available, it is possible the recent decisions may encourage parties to turn to other jurisdictions given the Courts\' willingness to look beyond s 122 in other contexts.