Cory Lipinski

Qualifications

LLB, BA, Victoria University of Wellington 2020
Admitted to the Bar in New Zealand 2020

Contact

M: +64 27 599 4939
E: cory.lipinski@hobec.co.nz

Cory is an Associate in the Resource Management team at Holland Beckett.

Having been born and raised in Tauranga, Cory has returned after a three-year stint at an Auckland based firm and is loving practising law in the Bay of Plenty.

Cory’s experience includes:

Advising clients on resource management reforms
Assisting with large scale due diligence projects
Acting for local government and providing advice regarding regulatory and policy matters
Technical advisor to an Expert Consenting Panel for a 94-lot housing development under the COVID-19 Recovery (Fast-track Consenting) Act 2020
Acting for a private client submitting on a DOC concession application
Acting for clients on plan changes and appearing before the panel in respect of the same
Successfully challenging an abatement notice for a private client

Outside of work, you’ll find Cory with his wife walking various family members’ dogs.

Cory Lipinski's Expertise

Environment & Planning

Cory Lipinski's News & Resources

Fast-track amendments passed under urgency

Following a short Select Committee process, the Fast-track Approvals Amendment Bill passed through its third reading on 10 December 2025. It now awaits royal assent before becoming law – our view is that this will be completed within the next week. The Bill puts forward changes to the already fairly contentious Fast-track Approvals Act 2024 which the Government purports will “promote grocery competition” and make beneficial “technical and machinery changes” following feedback from current fast-track system users. The Bill’s provisions will come into force in two stages, some provisions having immediate legal effect upon royal assent, and others with a “lag” that will have effect on 31 March 2026. Those changes with immediate legal effect include: Limitation of appeal rights to only those persons or entities that are required to be invited to comment. The ability for the panel to impose infrastructure conditions to ensure there is adequate infrastructure to support the project. The ability for the Government to prepare Policy Statements, which will outline the regional and national benefits of certain activities. The panel must consider any relevant Government Policy Statement when making its decision (although none have been prepared at this time). 20 listed projects have had either their description and/or location changed in Schedule 2. Additionally a new power is available for applicants to request that the description or location of a listed project is changed by Order in Council. Changes that will kick-in on 31 March 2026 include: A cap on the timeframe that the Panel Conveners can set for the decision is 90 working days from the date comments are received (unless the applicant otherwise agrees to a longer timeframe). A requirement that the panel must commence work within 5 working days of it being stood up. A power that the Minister for Infrastructure can direct how the EPA conducts its functions under the Act, so long as such direction does not relate to a specific substantive application or person nor impede on a statutorily independent function of the EPA. A requirement that comments provided to the panel by local authorities and administering agencies must be relevant to the substantive application and the decision the panel is required to make. The pre-lodgement consultation requirement is shifted to a notification requirement for the majority of consultees. Opportunity must be provided to notifyees (at least 20 working days) to provide responses which must be incorporated into an application by it was informed by those responses. Several changes that were initially put forward in the Bill, but were subsequently amended or abandoned, before it was passed include: Removal of a draft provision requiring that the Panel Conveners stand up a panel within 15 working days of receiving an application. The initial cap on decision timeframes was put forward as 60 working days from the date comments were received, but this was increased to 90 (as addressed above). Removal of a (new) proposed power in which an applicant could raise concerns as to the suitability of prospective panel members. Removal of a (new) provision in which the panel’s ability to invite comments from non-mandatory invitees would have been fettered by the requirement that they cannot be invited if their comments would be addressed by the local authority or administering agency. This is a fairly high level summary of the main changes proposed, and there are many more changes which will impact on the fast-track process for all persons and entities involved. To know more about these changes, and what they may mean for you, please contact one of resource management members below.

The new dawn of resource management law: consenting changes explained

The Government has introduced the two Bills that are intended to replace the Resource Management Act 1991 (RMA), these being the Natural Environment Bill (NEA) and the Planning Bill (PA). The intention appears for these bills to read for the first time in the coming week, and for them to be enacted in mid-2026. This article focuses on the implications of the new Bills for the consenting process. You can also read our article on the structure and new policy and planning framework of the Bills here. Consenting is managed under both Bills generally following the existing split between consents/permits managed by regional councils (managed under the NEA) and consents managed by district councils (managed under the PA). Resource consents are out, resource and planning permits are in The consenting framework under the Bills align with the Government’s goals of enabling development and reducing regulation. These changes impact what effects can be considered and who can be involved in resource consent processes. A change in language will occur as some resource consents will become resource permits. The key changes to the way of changes in which resource permits and considered and made are: Activity statuses: Controlled and non-complying activity classifications cease to exist. At this time it is unclear if controlled activities would become permitted or restricted discretionary under the system. Effects: The consideration of effects of an activity will be curtailed by the Bills. Positive effects, cumulative effects and natural hazards are now included. The following effects are excluded: visual amenity, financial viability, precedent effects, internal effects and less than minor adverse effects (unless they give rise to a cumulative effect that is more than less than minor). Permitted activities: The objective is for more activities to be permitted activities, subject to conditions. This is reflective in the prescriptive wording of the Bills’ guidance on classification of activities which provides that an activity should be permitted if it is acceptable, anticipated, or achieves the desired level of use, development, or protection of the natural environment or the adverse effects of the activity are known and can be managed (i.e. by way of conditions in a permitted activity rule). Affected persons: Only those who are materially affected can participate in a permit application process. Limited notification will only occur if effects are more than minor, which is a distinct lifting of the threshold required under the RMA which provides that a person is effected if the effects on them are “minor or more than minor”. Public notification: The threshold for public notification has also been lifted and will only occur where the adverse effects of the proposed activity on natural resources or persons (NEA) or built environment (PA) are significant. Consent terms: Carried over from reforms made to the RMA in mid-2025 permits associated with long lived infrastructure and renewable energy generation: Have a starting point of a 35 year duration; and In the case of structures in the coastal marine area or beds of lakes and rivers have a maximum duration of 50 years. For other activities associated with renewable energy generation or long lived infrastructure (i.e. permits relating to water) the NEA makes it clear that the maximum duration is 35 years. What does this mean for existing resource consents? Existing consents will carry over into the new system. This provides important continuity for consent holders. The question then arises – what happens to my resource consent application? A transitional consenting process will apply from the period one month after the Bills receive royal assent and once the Order in Council repealing the RMA is made – this is referred to as the transitional period. This transitional process provides that the traditional RMA process for consent application is to be followed, albeit with some modification: The Bills’ procedural principles are to be adhered to. Certain effects are excluded from the scope of what can be considered. The “special circumstances” criteria is removed from the public notification test. Spatial plans and national standards are to be considered, once they are developed. If an application is lodged and granted pre-transition period then it will be treated as a resource consent under the RMA. If an application is lodged pre-transition period, but a decision is made post-transition period then it will be treated as a permit under either the PA or NEA. The return of the Planning Tribunal The Planning Tribunal is getting a second-wind although only in name as the scope of its jurisdiction is different to the Planning Tribunal of years gone. This new tribunal will be established as a division of the Environment Court and will address administrative matters during the consent consideration process including, but not being limited to: requests for further information, interpretation of permit conditions, notification decisions, and striking out permit conditions that are deemed to be out of scope. The Planning Tribunal will not hear appeals on plans, applications for notified permits (where there are third party participants, designations – nor will it deal with enforcement actions. Automatic consent extension Additionally, the Government introduced the Resource Management (Duration of Consents) Bill on 9 December 2025, which was passed under urgency on 10 December 2025 – the only stage left before it becomes law is for it to be given royal assent. This Bill seeks to automatically extend resource consents that are due to expire before the new Bills are in force, and to deem that recently expired consents are reinstated and their expiry automatically extended. The Bill provides that: Resource consents that would otherwise expire before 31 December 2027 are automatically extended until that date. Recently expired resource consents (where an application for a replacement consent has been made under section 124 of the principal Act, but not yet determined) are deemed to be reinstated and extended until 31 December 2027. Consents relating to freshwater are excluded from extension beyond a total duration of 35 years. The resource management space is rapidly changing in New Zealand. We will continue to provide updates as the changes process. If you would like to know more about how these changes will affect you, or you would like assistance drafting a submission (once the submission period dates are announced), please contact one of our Resource Management team members below.

Resource management law reform is here: the policy and planning structure explained

Fulfilling its promise, the Government introduced the two Bills that are intended to replace the Resource Management Act 1991 (RMA), these being the Natural Environment Bill (NEA) and the Planning Bill (PA). The intention appears for these Bills to read for the first time in the coming week, and for them to be enacted in mid-2026. This memorandum will address the policy and planning structure of the new system. For information about changes to the consenting process please see our article here. By in large, the Bills follow the recommendations made in the blueprint for RMA reform produced by the Expert Advisory Group in March 2025. Each Bill serves an interrelated although distinct purpose but both seek to establish a framework for how the new system will operate, being: For the NEA, for the use, protection, and enhancement of the natural environment; and For the PA, for planning and regulating the use, development, and enjoyment of land. How is the new system structured? The Bills establish a hierarchy of instruments, similarly to that under the RMA. Each instrument must implement the instrument directly preceding it in this hierarchy (and must only implement a higher instrument if there is a requirement to do so in that higher instrument). This hierarchy is as follows, in descending order: Goals National Policy Direction National Standards Regional Spatial Plan Land Use Plans and Natural Environment Plans As was, and is, the case for the RMA the devil lies in the detail so it is likely that the detail of matters such as the allocation of resources, status of particular activities, etc will be fleshed out in greater detail in the national level documents. It will be important to stay abreast of the changes being made so that you can participate in all relevant stages of implementation of the new system (where you are able to) to ensure that your particular interests are put forward and preserved. Goals Comparatively to the expansive purpose of the RMA, the purposes of the Bills are intended to be deliberately straightforward and descriptive. Instead of an overarching purpose, the substantive direction for the system is provided by the goals in the Bills which must be sought to be achieved when undertaking functions or duties or exercising powers under the Bills. The goals sit at the top of the hierarchy but there is no inherent hierarchy within the goals themselves. These goals are intended to define the outcomes that the systems are trying to achieve – The PA’s goals are centred around matters such as separation of incompatible land uses, enabling development of land, planning for infrastructure demand (current and future) and protecting outstanding natural features and landscape, and significant historic heritage. On the other side of the coin, the NEA’s goals focus on use and development of natural resources within environmental limits, safeguarding the life supporting capacity of these natural resources, and achieving a no net loss of indigenous biodiversity. Some RMA matters of national importance have been carried over into these goals, albeit with modification. Notably absent are goals concerning amenity values, climate change related effects, and the relationship with Māori with the environment. There is also no “principles of Te Tiriti o Waitangi” provision, as the goals instead provide for Māori interests to be accounted for by way of consultation and participation in the process of creating the planning instruments. This is a pivot from the Te Tiriti provisions in the RMA, and the Bills are prescriptive in how they meet the Crown’s Te Tiriti obligations. Notably, the Bills provide for negotiation between the Crown and PSGE as to how existing and new Treaty settlements will operate under this new system. National Policy Direction A combined National Policy Direction under each Bill will be prepared centrally and will particularise the goals and direct how they must be achieved. National Policy Direction will also address how conflicts between the NEA’s and PA’s goals are to be resolved. The Ministry for the Environment has advised that the first package of National Policy Direction will be released at the end of 2026. National Standards National Standards, like National Policy Direction, will be prepared centrally and will be intended to be an instrument that provides procedural, regulatory, and administrative consistency, specific direction on how a NEA or PA goal is to be achieved in relation to a matter that is not controlled or covered by a National Policy Direction. In our view these standards will have the most impact on how the lower level instruments will be formed. Most notably, these standards will set some environmental limits and give direction as to the nation’s standardised zoning which for all intents and purposes are “rules” that must be implemented. With respect to environmental limits these must be set for air, freshwater, coastal water, land, soil, and indigenous biodiversity and are to be put in place to protect human health and the life-supporting capacity of the natural environment. An important objective of the new system is the establishment of greater consistency between council plans across New Zealand through greater standardisation which will be driven for the large part by National Standards. This will be implemented by a National Standard that specifically addresses standardisation. Mechanisms are in place whereby a councils can depart from the standardisation which requires provision of a justification report, detailing why a departure is warranted. Regional Spatial Plan In the new system, there must be a combined plan for each region at all times, which will consist of a Regional Spatial Plan and a natural environmental plan (under the NEA) for the region and a land use plan (under the PA) for each district in the region. These are the main point of integration between the PA and NEA regimes. Unlike national level documents, Regional Spatial Plans are more akin to your “boots on the ground” RMA instrument, and are intended to set strategic direction for development and public investment in a particular region for a period not less than 30 years. With respect to environmental limits prescribed in National Standards, Regional Councils are to implement these into their Regional Spatial Plans and if a less stringent limit is so be established, the Council must first provide a justification report to the Minister. No justification report is required if a Regional Council wants to establish a more stringent environmental limit. Land Use Plans Land Use Plans are established under the Planning Bill and regulate the use and development of land within a district and are by all means replacements of district and city plans under the RMA. Natural Environmental Plan This plan is prepared under the NEA by Regional Council and its purpose is to enable and regulate the use, protection, and enhancement of natural resources in a region and to assist Regional Councils in carrying out their functions and responsibilities under the NEA – these are akin to and replace regional plans under the RMA. Under a NEA a regional council will be responsible for allocating natural resources which can be done through permitted activities and permits granted: In the order in which applications are lodged (i.e. the status quo of first in first served); Market-based consenting centred around auctions and tenders. This form of allocation is not permitted to be used until specified in a national standard which can also operational details as to how the process if to be followed; or Comparative consenting which involves an assessment of applications that will use the same resource against one another taking into account the merits of each application and criteria set out in the relevant plan or a national standard. What is the timeframe? The RMA will continue to survive for the time being, until such time as the Minister is satisfied that the combined plans for every region have been notified. At such time, an Order in Council will be made that specifies the “transition date” which will bring to an end the “transitional period” (the transitional period begins one month after both Bills obtain royal assent). On the transition date the RMA will be repealed, the NEA and PA come into full force, and legal effect will be given to all Land Use and Natural Environment Plans. The PA specifies that the transition date cannot be later than 31 December 2027 and no sooner than 6 weeks after the Order in Council comes into force. Whilst not confirming a specific date, the Government’s intention is that this entire process (i.e. final decisions on all plans are made) should be completed in 6 years (although depending on when the Order in Council is made, the RMA may only survive for a portion of that 6 year period). Environmental limits We touched on environmental limits earlier, but this is an important change in the new system as it has a big impact on use of finite resources. Environmental limits are: Human health limits, set by the responsible Minister in national standards; and Ecosystem health limits, set by regional councils in its natural environment plan. The detail of how these limits are to be set will be set out in the national standards. These environmental limits can require: An action plan (being a plan developed by a Regional Council setting out decision making processes, reviews of permit conditions, and preparations of rules in a natural environment plan); A cap on natural resource use (i.e. a maximum amount of a particular resource, e.g. water from a River, that Regional Council may allocate through plan rules and permits); or Both an action plan and cap. Regional Council is required to avoid breaching the set environmental limits and must take action if a limit is breached or if there is sufficient evidence to indicate that a limit will be breached. Regulatory relief The PA establishes a regulatory relief framework in which Councils are required to consider the impact on private landowners as a result of planning controls on indigenous biodiversity, significant natural areas, significant historic heritage, sites of significance to Māori, outstanding natural features and landscapes, and areas of high natural character. Where any controls create an impact on the landowner that is more than minor, the council must provide relief. Relief can take a variety of forms including, but not being limited to, development rights, no-fee consents, rates relief, access to grants, provision of expert advice, monetary compensation, or land swaps. This is a rapidly changing area of New Zealand’s law and will eventually impact every person in the country in one way or another. We will continue to release further detailed updates on the Bills as changes are made. If you would like to know more about how these changes will affect you, or you would like assistance drafting a submission (once the submission period dates are announced), please contact one of our Resource Management team members below.

Fast amendments to the Fast-track Approvals Act

Aiming to capitalise on faster-tracked consenting the Government has introduced the Fast-track Approvals Amendment Bill. While marketed at improving grocery competition through supermarket-specific consenting options, the Bill in fact provides much more nuance. The Bill has had its first reading and is referred to the Environment Select Committee for consideration. Its proposals are indicative of the Government’s quick clean-up of large-scale resource consenting and prioritisation of super market development. The significant changes are as follows: The creation of panels and their decision-making would be streamlined under the Bill. Panel conveners would have 15 working days to set up a panel after receiving notice to do so (Clause 29). Panels would then be required to make their decisions no later than 90 working days from the panel’s establishment, unless otherwise agreed by the applicant (Clause 44). This includes 10 working days for the panel to invite written comments, 20 working days to receive these comments, and a proposed maximum of 60 working days after receiving these comments to make their decisions. In saving more time the Bill will facilitate amendments to listed projects under Schedule 2 (Clause 54). The proposed Section 117A allows corrections to the project description and approximate geographical location of a listed project. These changes may only be made by the Governor-General, by Order in Council, at the Minister’s recommendation. Changes to the regional or national significance of the project, its purpose, and its location, scale and nature will influence the Minister’s recommendation. The Bill eases consultation requirements proposing that councils, iwi authorities, hapū, treaty settlement entities, and administering agencies need only be notified of a referral application or a substantive application for a listed project as opposed to being consulted (Clauses 6(2) and 14). These entities would have 20 working days to provide a response to the applicant. The introduction of Government Policy Statements look to provide a clear picture of the Government’s view on the benefits of certain regional or national infrastructure or development projects (Clause 5). Relevant statements must be considered when assessing a referral application or deciding approvals in a substantive application. Such clarity might leave little to speculation and add weight to these decisions. The Bill would allow the modification or withdrawal of approvals sought in lodged substantive applications prior to the panel making its decisions at the Minister’s discretion (Clause 42). Across the Bill decision makers are given power, with specified time constraints, to request and gather further information from the applicant where necessary. This includes information related to: a. The MfE’s determination that a referral application is complete and within scope (Clause 8); and b. The EPA’s determination that a substantive application is complete and within scope, (Clause 25). Comments by third parties on referral and substantive applications have been specifically narrowed: a. Comments on referral applications would be specifically invited from the Minister for Māori Crown Relations and the Minister for Māori Development. Comments from an administering agency or local authority would need to be relevant to the application and its decision (Clause 9). b. Comments on substantive applications would also need to be similarly relevant. Any other persons invited to comment are restricted from doing so unless an administering agency or local authority does not sufficiently address the matter or does not intend to comment on it (Clause 33). As part of its proposal a referral application would, under the Bill, need to outline not only the potential and known adverse effects of the project on the environment but also the significance of those effects (Clause 7(1)). These proposed changes may well expedite fast-track resource consenting by compressing timeframes and limiting powers. We would expect this to result in faster decision-making.

RMA round-up

The resource management law landscape continues to evolve, with a constant flow of proposed RMA reforms and planning changes. This article rounds up where things stand as at the end of July 2025. Resource Management Act 1991 (\"RMA\") The RMA remains in place, having already been amended last year through the Resource Management (Freshwater and Other Matters) Amendment Act 2024. The next round of amendments to the RMA will occur shortly, via the Resource Management Act (Consenting and Other Matters) Amendment Bill which is currently before Parliament. The Environment Committee has reported back to Parliament on the Bill, and the Bill has passed its second reading. However, further changes are expected, with Minister Bishop announcing that an Amendment Paper will be introduced to Parliament which will stop plan reviews and changes by councils. The Amendment Paper: Will exempt a limited number of plan changes. Examples of automatic exemptions include Streamlined Planning Processes and private plan changes (which are initiated by landowners and developers). Allow councils to apply to the Minister for the Environment for an exemption to continue or notify a new plan change. RMA replacement There is no further update at this stage on the proposed Planning Act and Natural Environment Act which are intended to replace the RMA. At this stage, the available references are the Blueprint for resource management reform delivered to the Government in late 2025, and the Cabinet response paper. Minister Court has said that Government has been working tirelessly to shape up the new system for introduction by the end of the year, passing by mid-2026, and the bulk of implementation through 2027. National policy direction In early June the Government released its consultation on the national direction package comprising: Package 1: Infrastructure and Development Package 2: Primary Sector Package 3: Freshwater Submissions on that close on Sunday 27 July 2025. Package 4: Going for Housing Growth package was released later in June, and submissions on its proposals close on 17 August 2025. The policy changes are intended “to minimise the implementation burden for local government and have been developed with the new system in mind, with these changes expected to carry over and transition into it when the time comes” so the policy changes will be in force before the RMA replacement. With so much change afoot, it\'s certainly a time for RMA users and practitioners to be agile. If you have questions about RMA reforms, planning changes, resource consent processes or how the proposed reforms may affect your project, contact our Environment & Planning team.

Wildlife Act authorities: Mount Messenger case

The Mount Messenger case The High Court’s recent decision in Environmental Law Initiative v Director-General of Conservation that an authority under the Wildlife Act 1953 (Act) authorising the killing of protected wildlife was unlawful may have major flow on effects across the infrastructure and development sector. The High Court set aside the “killing” aspect of Waka Kotahi’s s 53 wildlife authority associated with the development of the Mount Messenger Bypass in Taranaki (Project) on the basis that it was unlawful and should not have been granted by the Director General of Conservation in the first instance. The Project was located in various areas of native habitat and ecological mitigation and offsetting was proposed which included relocation of protected wildlife species. Authority was also sought by (and granted to) Waka Kotahi to kill protected wildlife during the construction of the Project as it was considered impossible to capture and relocate every individual of the various protected species from the Project’s footprint. The wildlife authorities involved Waka Kotahi obtained an authority under s 53 of the Act to capture and kill 46 protected species during construction of the Project (s 53 Authority). The s 53 Authority was granted in December 2021 and construction began in October 2022. That same month the Environmental Law Initiative (ELI) queried the lawfulness of the killing authorised by the s 53 Authority which prompted Waka Kotahi to then apply under s 71 of the Act for an authority (s 71 Authority) to undertake the same capture, relocation and killing authorised under the s 53 Authority. The s 71 Authority was granted in August 2023 on the same conditions (with some additional reporting requirements) as the s 53 Authority. What was challenged? ELI did not oppose the Project, nor did it challenge the granting of the s 53 Authority to the extent that it authorised the capture of protected wildlife. Rather its two challenges related to: The Director-General of Conservation’s decision to grant the s 53 Authority to kill protected wildlife (ELI accepted that the capturing component was lawfully authorised); and The Minster for Conservation’s and the Minister for Transport’s decision to grant the s 71 Authority which authorises the same capture and killing activities as the s 53 Authority. Te Runanga o Ngāti Tama also joined the proceedings as an interested party to ensure that their reo was heard. High Court decision The s 53 Authority The High Court found the s 53 Authority to be ultra vires and unlawful as it allowed the killing of protected species for the duration of construction of the Project with the individual killings not having a protective element. The s 53 Authority was set aside to the extent of the killing aspect. The reasons for the Court’s decision were as follows: Inconsistent with Act’s purpose - In upholding the first cause of action, the Court followed the Supreme Court’s direction in Shark Experience Ltd v PauaMAC5 Inc [2018] NZSC121 that the principal purpose of the Act is the protection of wildlife. The killing aspect of the s 53 Authority did not provide a protective benefit to wildlife that it authorised to be killed and was ultimately held to be inconsistent with the purpose of the Act. Nexus between Act’s purpose and the killing activity - The Court rejected Waka Kotahi’s and Ngāti Tama’s submission that the Act’s purpose is to be assessed in connection with the overall scope of the Project and instead held that a direct nexus is required between each individual act of killing authorised by the s 53 Authority and the purpose of the Act, being protection of wildlife (in doing so the Court considered it was following the decision in Shark Experience Ltd). The Court held that the interaction with wildlife authorised by s 53 authorities need not solely or primarily be aimed at protecting wildlife and a wildlife authority can have other purposes so long as each individual interaction with wildlife has a protective purpose. The s 71 Authority The Court upheld the s 71 Authority granted to Waka Kotahi as authorities under this section can be obtained in limited circumstances where the activity is otherwise subject to one of the pieces of legislation listed in Schedule 9 of the Act. The Government Road Building Powers Act 1989 is one of those Acts which meant that Waka Kotahi could obtain a lawful wildlife authority under this section. The result DOC has since confirmed that it is considering the High Court’s decision and what this means for how it manages its responsibilities for wildlife authorities (its press release is here). Its advice to operators that currently hold authorities involving the incidental killing of wildlife is to continue to undertake activities consistent with the conditions of their wildlife authorisations and to take all reasonable steps to ensure wildlife is not harmed. Depending on the circumstances DOC (and ELI) have confirmed there might be a possible defence to such unlawful killing under s 68AB of the Act where the killing was not intentional and where the person doing the act resulting in the killing took all reasonable steps to ensure that killing did not occur. Nonetheless, operators may want to undertake careful review of existing wildlife authorities that purport to authorise the killing of protected wildlife to ascertain whether any issues arise. Holland Beckett is experienced in providing advice to clients on authorities under the Wildlife Act 1953. If you have any questions about what this case may mean for you, please do not hesitate to contact a member of our resource management team.

Fast-track Approvals Bill passed into law

The Government is aiming to deliver on its promise to deliver a new fast-track consenting regime before the end of 2024. The Fast-track Approvals Bill has passed through its third reading in Parliament on 17 December 2024 and we would expect it to be given royal assent before the end of 2024 meaning that it will become law. At the committee of the whole house stage the Minister Responsible for Resource Management Reforms, Chris Bishop, introduced an amendment paper which tabled various substantive amendments to the bill. These amendments were incorporated into the bill through the committee of the whole house stage with little amendment. The amendments are largely favourable to applicants. The significant changes that have been made to the bill since the Select Committee’s report are as follows: The listed projects have now been included in Schedule 2. The projects listed were not a surprise as they had been previously announced by the Government towards the end of the Select Committee stage. There are new provisions that allow the Minister for Infrastructure (currently Minister Bishop) to determine that a project is a ‘priority project’. An applicant can apply to the Minister for its project to be given priority, or the minister can make this decision of their own initiative. Panels must be set up for priority projects before non-priority projects. Applications cannot be lodged before 7 February 2025. There are some changes to the information requirements, with a focus on providing information to show how a project is consistent with the purpose of the bill (i.e. to facilitate delivery of infrastructure and development projects with significant regional or national benefits). Before declining an application, a panel must provide its draft decision to the applicant before it is finalised. At this stage, the applicant can propose modifications or conditions to its application which functions as a pseudo ‘second chance’ to adapt an application to address a panel’s concerns. The scope for the reasons for declining an application has been expanded to include where there is a breach of s 6 of the Resource Management Act 1991 (which relates to Treaty settlements). The timeframe in which a panel must make its decision has been increased from 25 working days to 30 working days from the date specified for receiving comments, but the power for a panel to extend the timeframe for making a decision beyond 30 working days from the date comments were to be received has been removed. However, the panel convener can set a timeframe that is longer than 30 working days if they consider that to do so is appropriate given the scale, nature and complexity of the approvals sought. The eligibility criteria for the panel convener has changed so that it can now be a senior lawyer with expertise in resource management. There is no longer a requirement for the panel convener to be a retired or active judge. As set out above, applicants will have to wait until 7 February 2025 to lodge an application with the Environmental Protection Authority. It will then be interesting to see how quickly panels are set up. 2025 is sure to be an interesting year for consenting in New Zealand, with many complex and exciting projects included in Schedule 2.

Resource Management (Consenting and Other System Changes) Amendment Bill

In keeping with its promise to introduce further changes to the resource management system before the end of 2024, the Government has introduced the Resource Management (Consenting and Other System Changes) Amendment Bill (Bill). The Bill proposes to make changes to the Resource Management Act 1991 (RMA) to advance key Government policies as part of stage three of its RMA reforms and is intended to go before Parliament for its first reading this week. These changes can be separated into five categories which are in keeping with the Government’s ‘packages’ that it announced in late August 2024. Infrastructure and Energy Consent Timeframes: Renewable energy generation consents would be required to be decided within one year. For geothermal and hydro schemes this timeframe must be extended if a request is made by the applicant or a specified group (such as treaty settlement groups, customary marine title groups and iwi authorities). Consent Durations: Consents for renewable energy and long-lived infrastructure have a default duration of 35 years, unless: the applicant requests a shorter period; a National Environmental Standard, National Policy Statement or National Planning Standard expressly provides for a shorter period; or it is required after consideration of submissions by relevant groups (such as treaty settlement groups, customary marine title groups and iwi authorities). Lapse: Lapse periods for renewable energy projects have doubled from five years to 10 years. Designating Authorities: Requirements and costs for designating authorities are simplified by restricting when an assessment of alternatives is required and simplifying other assessments and information requirements. Port Coastal Permits: Each port company’s coastal permit will be automatically extended to 30 September 2046 (the conditions of which will also be extended automatically). A port company’s permit must be reviewed by the relevant consenting authority no later than 30 September 2027 to identify: Any adverse environmental effects of the occupation of the coastal marine area; and Whether conditions need to be imposed or amended to avoid, remedy or mitigate those effects. Requiring Authority Status: Port companies are to be given requiring authority status for landward operations. Discharges: Amendments to s 70 RMA are proposed to amend the scope of discharge rules to enable regional councils to include permitted activity discharge rules where performance standards will contribute to a reduction in adverse effects over time. Housing Growth Medium Density Residential Standards: Flexibility will be provided to territorial authorities to enable them to opt out of the Medium Density Residential Standards if they demonstrate that they have at least 30 years of planned housing growth capacity. This exemption applies even if the medium density residential standards have since been incorporated into that territorial authority’s district plan. Specified territorial authorities are no longer required to incorporate the medium density residential standards into residential zones. Minister’s Powers: The Bill provides the Minister for the Environment with new powers to ensure compliance with national direction, including housing and business development assessments. The Minister for the Environment can direct councils to prepare or amend documents in accordance with national direction and to direct what type of plan change is used to give effect to national direction. Heritage Buildings: The process for listing/delisting heritage buildings and structures has been simplified. Farming Fishing: The Bill defines the interaction between the RMA and fishing activities under the Fisheries Act 1996. The intent is to ensure that where new rules are introduced, they go through a pre-notification process with the Director-General of the Ministry for Primary Industries, have their effects on fishing assessed, do not raise new restrictions in unexpected areas (reduced scope of submissions), do not add to the regulatory burden on fishers, and do not apply to Māori customary non-commercial fishing rights. Farm Plan: Part 9A of the RMA is amended to make farm plan certification and audit services more practical and cost effective by allowing industry organisations to deliver those services. Wood Processing: To reduce delays in consenting, the Bill requires resource consents for wood processing facilities to be decided within one year of application. Natural Hazards Plan Changes: Any plan changes introducing new natural hazard rules will have immediate legal effect. Consenting: The Bill strengthens a consenting authorities’ powers to decline a land use consent application if it considers that the activity will create a significant risk from natural hazards, increase an existing risk to become significant, or increase an existing significant risk. Emergency Response: New powers are to be given to the Governor General (on the recommendation of the Minister) to make regulations that respond to natural hazards and enable recovery efforts. System Improvements Penalties: Penalties for offences under the RMA are proposed to be changed as follows: For private individuals – maximum imprisonment decreased from two years to 18 months and maximum fine increased from $300,000 to $10,000,000. For a non-natural person (e.g. a company) the fine is increased from $600,000 to $10,000,000. Insurance: The Bill removes the ability for parties to insure against penalties and makes it unlawful. Fines are introduced for persons who enter into insurance contracts to indemnify parties for offences under the RMA (a maximum of $50,000 for an individual and $250,000 for any other person). Clarity: Changes are proposed to simplify the consenting regime by clarifying the scope of further information requests, allowing applicants to review consent conditions before a decision and enables cost recovery for consent reviews due to national direction. Conservation Act 1987: The Bill proposes changes to the Conservation Act 1987 to make technical amendments to the Department of Conservation functions to align their ability to manage discharges with the proposed changes to the RMA. Holland Beckett is experienced in providing advice to clients on the current reforms to New Zealand’s resource management system. If you have any questions about these reforms, please feel free to contact us.

Phase three of the Resource Management reforms

Last week, the Government announced that two new laws are to be developed to replace the Resource Management Act 1991 (RMA), with the enjoyment of property rights as their guiding principle. Replacement of the RMA is part of the final phase (phase three) of the Government’s reform of our resource management system. The Government’s intention with a property rights focused system is to allow people to do more on their own property more easily, so long as it does not harm others. Where harm to others results from an activity, the intention is that the new system should step in to protect a property owner’s rights from being compromised by unreasonable activities occurring around them. Cabinet has agreed on ten core design features of the new resource management system. These features are still at a high level and more detail will be required before the effectiveness of these methods can be assessed in achieving the Government’s aspirations. The ten features are as follows: Narrow the scope of the resource management system to focus on managing actual effects on the environment. Establish two acts with clear and distinct purposes – one to manage environmental effects arising from activities and the other to enable urban development and infrastructure. Strengthen and clarify the role of environmental limits and how those are to be developed. Provide for greater use of national standards to reduce the need for resource consents and simplify council plans. Shift the focus away from consenting before activities can get underway, and towards compliance, monitoring and enforcement of activities’ compliance with national standards. Use spatial planning and a simplified design process to lower the cost of infrastructure. Realise efficiencies by requiring one regulation plan per region, jointly prepared by regional and district councils. Provide for a rapid low cost resolution of disputes between neighbours and between property owners and councils, with the potential for a new Planning Tribunal (or equivalent). Uphold Treaty of Waitangi settlements and the Crown’s obligations. Provide faster and cheaper processes with less reliance on litigation, contained within shorter and simpler legislation that is more accessible. An expert advisory group has been appointed to assist with the development of the new system, whose expertise includes resource management law, planning and te ao Māori. The Government expects key aspects of the new system to go before Cabinet for agreement before the end of the year with the intention for legislation to be passed before the next election.

Learning and celebrating Te Reo Māori

This week we are celebrating Te Wiki o Te Reo Māori - Māori Language Week. The learning and use of Te Reo is something that Holland Beckett supports and encourages, recognising the importance of diversity, inclusion and Māori customs to our firm, the business and legal space, and the wider community. Over the last few months, our people have had the option to join weekly in-house Te Reo classes. The firm has run these classes previously, to very positive engagement and feedback from staff, and the second series run by kaiako (teacher) Atirau has been a great learning opportunity for our team. “The classes provide a basic grasp of Te Reo (including pronunciations and a ko wai au/pepeha), Tikanga practices, local myths and legends”, Cory Lipinski explains. This was the first time beyond school that he has taken a Te Reo course, and he has enjoyed the challenge of learning something new that is important to him. “As someone who lacked a proper understanding of Te Ao Māori, I wanted to have a grasp on the language, customs and traditions and their importance to Aotearoa. I believe that everyone in Aotearoa should have a grasp of Te Reo, whether this be speaking and reading the language or a basic understanding of the pronunciation of words. Given that there is a general stance from Government to disincentivise the use of Te Reo and a push back from our own profession to introducing tikanga Māori into the law courses, I think use of Te Reo in everyday activities needs to become the usual practice.” Cory is a Solicitor in our environment and planning team - “a large part of our work in environmental and planning law is associated with the effects that projects may have on mana whenua. It is important that we have a firm grasp of the Māori language and Tikanga.” Senior Solicitor Waiata Groot also joined the classes. She is deepening her knowledge of the language “because many of the ongoing challenges Māori face in society today are better understood if we, as individuals and a collective, expand our knowledge on Te Ao Māori (the Māori world view – including the Māori language, the customs and traditions, embracing Māori stories, and understanding their importance)”. This is important to her as Māori she has “seen firsthand the value in both Māori and non-Māori having mutual respect for different ways of doing things and working collaboratively to achieve results for everyone (which, simply put, can only be done if we understand and appreciate cultural differences).” As a family lawyer, Waiata sees encompassing this knowledge into her work as not only relevant, but essential - “for example, from a care of children perspective, two of the seven principles that NZ Courts must consider when making decisions regarding children include consideration of a child’s relationship with both parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened, and, consideration of a child’s identity which includes the child\'s culture.” Also in our Family Law team, Hannah Robins wasn’t born in Aotearoa and joined the classes as she feels it is “important to have understanding of the values and Tikanga especially while working in the family court”, to better grasp pronunciation and “to learn my mihi enough to confidently speak it in public”. Along with everyone in the class, Hannah praised Atirau as a great teacher, “he has incorporated games and activities into the learning which has made it fun. He is also very good at giving feedback and I don’t think anyone has felt embarrassed or judged if they haven’t known something”. This Te Wiki o Te Reo Māori we\'re encouraging the whole firm to get involved with Te Reo Māori phrases and cue cards in and around the office, competitions for the use of Te Reo, and Te Reo Māori Bingo along with a Hangi lunch. Mā te kimi ka kite, Mā te kite ka mōhio, Mā te mōhio ka mārama. Seek and discover. Discover and know. Know and become enlightened.

Next steps in the reform of Aotearoa’s Resource Management System

What is the next stage of RMA reform? The Government intends to introduce its second RMA amendment bill and a suite of changes to national direction to “drive economic growth and productivity”, RMA Reform Minister Chris Bishop says. Following the first RMA amendment Bill introduced to Parliament earlier this year, the next stage of the Government’s RMA reform, prior to full replacement, is aimed to be achieved by a second RMA amendment bill (RM Bill 2) and a suite of national policy changes through introduction of a ‘national direction package’. The intention is for the RM Bill 2 to be introduced to Parliament before the end of this year, and then passed into law by mid-2025. The national direction package will follow the same timeline and this bill. The Government has divided the RM Bill 2 and the national direction package into four categories: infrastructure and energy, housing, farming and the primary sector, and emergencies and natural hazards. The reforms proposed under each topic are as follows: Infrastructure and energy reforms Improved delivery of renewable energy development by giving effect to National’s Electrify NZ. The Electrify NZ policy can be found here, which intends to “cut red tape to drive investment in renewable electricity generation.” A new NPS for Infrastructure which intends to ensure that resource management decisions consistently enable infrastructure to be development, operated, and maintained whilst also managing its effects on the natural environment. Amendments to the NES for Telecommunications to keep it up to date with developments and give telcos greater certainty and reduced consenting costs as they upgrade their infrastructure. Changes to the resource management system to ensure a consistent approach to quarrying. Inclusion of port operators and emergency service providers as requiring authorities. Extension of the default designation lapse period from 5 years to 10 years. Extension of the duration of port coastal permits by 20 years. Housing reforms Delivery of the ‘first pillar’ of the Government’s Going for Housing Growth policy. We discussed this policy, and the objectives of the first pillar, in our previous article here. Development of a new NES for Minor Residential Units (i.e. granny flats). Development of a new national direction for papakāinga housing, that will require each district plan to contain provisions to enable more papakāinga housing. Simplifying the way that heritage is managed. Farming and primary sector reforms Immediate national direction changes will be made to enable development of renewable energy, indoor primary production and greenhouses on highly productive land. We discussed the changes to the NPS on Highly Productive Land in our earlier article here. Further announcements are expected from the Government’s Agriculture and Primary Sector team on what changes will be made to this sector under this second tranche of reforms. Minister Bishop has indicated that these will largely give effect to a collection of promises made in the National Party’s manifesto and coalition agreements. Emergencies and natural hazards To further develop the NPS for Natural Hazards so that it will provide a comprehensive, nationally consistent framework for addressing the risks posed by natural hazards, including increased risk from climate change. The NPS for Natural Hazards will provide direction to councils on how to identify natural hazards, assess the risk they pose and respond to that risk through planning controls. The RM Bill 2 proposes to better enable rapid responses to disasters by improving emergency provisions including a new regulation making power for emergency responses. Alongside these four packages, a range of technical changes are proposed to improve the resource management system’s coherence. Whilst the precise form of these changes is yet to be released, what is apparent is that the coalition Government is being consistent with its position to undertake vast and quick reforms of our resource management system. Holland Beckett is experienced in providing advice to clients on the current reforms to New Zealand’s resource management system. If you have any questions about these reforms, please feel free to contact us.

Changes signalled to the Fast-track Approvals Bill

The Government has announced its intention to make several changes to the Fast-track Approvals Bill, which is currently with the Environment Select Committee for consideration. Cabinet has recommended the following five changes are made, and the Committee will decide whether or not to accept them: The final decision on the granting of fast-track projects now sits with an expert panel and not the Ministers for Infrastructure, Regional Development and Transport. Giving Ministers final approval of applications, even if an expert panel recommended otherwise, was the most controversial aspect of the Bill and its removal is a significant change to the Bill as proposed. Providing the expert consenting panel with decision-making powers aligns the Bill with the process under the previous Labour Government’s COVID-19 (Fast-track Consenting) Act 2020. Fast-track projects will now be referred to an expert panel by the Minister for Infrastructure alone who will be required to consult the Minister for the Environment and other relevant portfolio ministers as part of that referral process. However, our understanding is that fast-track projects listed in Schedule 2A of the Bill will still be able to apply directly to an expert panel for consideration. Timeframes for comments at the referral and expert panel stages will also be extended to give parties, including those impacted by a proposed project, more time to provide comments. Expert panels will be appointed by the Government and will be required to include: Those with expertise in environmental matters; Māori development and te ao Māori expertise in place of mātauranga Māori; and An iwi authority representative (only when required by Te Tiriti o Waitangi settlements). Applicants will be required to include information on previous decisions by approving authorities, including previous Court decisions, in their applications for the referring Minister to consider. Minister Bishop also provided a breakdown of the 384 projects that had applied to be listed in the Bill. Whilst not providing specific details of the projects, he noted that 18% of the applications related to renewable energy, 24% related to infrastructure and 40% related to housing and urban development. It is proposed that the fast-track projects to be listed in either Schedule 2A or B will be included in a paper that will be put before Parliament once the Bill returns to Parliament later this year. The Independent Advisory Group has now provided a report to the Ministers with recommendations on projects to include in the Bill and Cabinet will now consider these in the coming months. While these changes will remove the most contentious aspect of the Bill and will be more consistent with current fast-track legislation, we expect the Bill will continue to receive close scrutiny from all stakeholder groups as the Government continues with its wider reforms to the Resource Management Act 1991. Holland Beckett is experienced with fast-track consenting processes and advising clients on the current reforms to the Resource Management Act 1991. If you have any questions or would like to know more about anything in this article, please do not hesitate to contact the authors.

Clearing the pathway for consenting on highly productive land

Recent amendments to the National Policy Statement for Highly Productive Land (NPS-HPL) include clearing the pathway for consenting specified infrastructure, greenhouses and indoor primary production on highly productive land. There is now a clear consenting pathway for development of specified infrastructure (e.g. renewable energy), greenhouses and intensive indoor primary production on highly productive land (HPL) following recent amendments to the National Policy Statement for Highly Productive Land (NPS-HPL). We had previously discussed the issues and proposed amendments to the NPS-HPL identified by the Ministry and Minister for the Environment in a previous article from October last year (linked here). Following consultation and submitter feedback, the Minister for the Environment has this month made changes to the NPS-HPL that we anticipate will better enable development of intensive primary production, greenhouse activities, and specified infrastructure on HPL. The NPS-HPL sets strict standards for how HPL can be used and essentially provides that any use or development of HPL must be avoided unless such use or activity falls within one of the limited exceptions. After the NPS-HPL came into effect some renewable electricity generators and representatives from the food production sector raised concerns that it placed undue restrictions on development of activities that may have a need to be located on HPL. The two key issues identified by these parties were: The lack of clarity in the consenting pathway for new specified infrastructure on HPL, as notably no express provision for the construction of this type of infrastructure was provided for in the NPS-HPL. Specified infrastructure includes (but is not limited to) renewable electricity infrastructure; and The absence of a clear consenting pathway for developing and relocating intensive indoor primary production and greenhouses on HPL. The following changes have been made to the NPS-HPL to address these concerns: Amendments to cl 3.9(2)(j)(i) NPS-HPL that will better enable the development of new specified infrastructure on HPL. Clause 3.9(2)(j)(i) NPS-HPL has been varied to now provide that the development, operation or decommissioning of specified infrastructure, including (but not limited to) construction, maintenance, upgrade, expansion, replacement or removal may be undertaken on HPL if certain requirements set out in the NPS-HPL are met. Inclusion of a subclause that better enables development on HPL where such development provides for either ‘intensive indoor primary production’ or ‘greenhouse activities’ (cl 3.9(2)(aa)). Definitions for ‘intensive indoor primary production’ and ‘greenhouse activities’ are now also included in cl 1.3 NPS-HPL. These amendments provide a clear consenting pathway for development of specified infrastructure, greenhouses and intensive indoor primary production on HPL. If you have any questions regarding the NPS-HPL, or what these recent changes may mean for you or your business, please feel free to contact us.

Pushing residential development “up and out”: the Government’s ‘Going for Housing Growth policy’

What is the Going for Housing Growth policy? Today, the Minister for Housing, Hon Christopher Bishop, has announced new housing growth targets for Aotearoa’s cities and its plan to make it easier for new housing to go “up and out” to increase housing supply. The Going for Housing Growth policy (GHG) aspires to address the housing crisis in Aotearoa by enabling more houses to be built through its “three pillars” approach which is designed to: Free up land for urban development, including removing unnecessary planning barriers; Improve infrastructure funding and financing to support urban growth; and Provide incentives for communities and councils to support growth. Key changes proposed The first six changes of that approach as set out by Minister Bishop are: The establishment of housing growth targets for tier one and two councils. These councils will be required to live-zone feasible development capacity to provide for at least 30 years of housing demand at any one time (this is a notable difference from the current minimum requirement to live-zone 3 years of feasible development capacity). New rules requiring cities to be allowed to expand outwards at the urban fringe. Councils are prohibited from imposing rural-urban boundary lines in planning documents (but can still have rurally zoned land). Strengthening of the intensification provisions in the National Policy Statement for Urban Development to ensure that housing capacity is enabled in locations where there is demand and access to services, transport and businesses. New rules requiring councils to enable mixed-use development in cities. Activities such as cafes, dairies and other retail stores must be enabled in urban areas by tier one and two councils. The abolition of minimum floor area and balcony requirements. Councils cannot set minimum floor area requirements for apartments and other houses, or require balconies. New provisions making the medium density residential standards optional for councils. The GHG is consistent with the Government’s stance to enable housing supply and its objective to “slash the red tape” associated with development. No doubt local authorities will need to grapple with how they will implement these changes in a constantly evolving resource management landscape, which will be no small task. If you have any questions about what these changes mean for you, please feel free to contact us.

Stuck in the Highly Productive Mud

The Environment Court recently released its decision in Blue Grass Limited v Dunedin City Council [2024] NZEnvC 83 which deals with the definition of Highly Productive Land (HPL) in the National Policy Statement for Highly Productive Land (NPS-HPL). The Court has found that it is not open to applicants in consent processes to challenge the Land Use Capability (LUC) of their land as mapped by the New Zealand Land Resource Inventory (NZLRI), even if more detailed site investigations conclude that land is not LUC 1, 2 or 3. Put another way, land zoned rural that the NZLRI has mapped as LUC 1, 2 or 3 is ‘stuck’ as HPL for the time being, until regional councils introduce changes to their regional policy statements. The Environment Court was tasked with answering the question of whether more detailed mapping undertaken by consent applicants since the commencement of the NPS-HPL (17 October 2022) using the LUC classification system could prevail over the identification of land as LUC 1, 2 or 3 as mapped by the NZLRI. This would in turn determine whether land is classified as HPL. The Court’s answer was no. The NPS-HPL provides that regional councils must undertake mapping of HPL within its region and as soon as is practicable (but not later than 3 years from the commencement date of the NPS-HPL) notify a proposed regional policy statement that identifies all HPL by way of maps. Regional councils are still undertaking this mapping and until this is completed cl 3.5(7) of the NPS-HPL sets up the interim definition of HPL as being land which “at the commencement date” of the NPS-HPL is (with some exclusions): (i) zoned general rural or rural production; and (ii) is identified as LUC 1, 2 or 3. Dunedin City Council’s position was that the qualifier of “at the commencement date” in cl 3.5(7) means that the LUC mapping must have been in place at the commencement date. Its submission was that this creates a holding position for protection of HPL until the Otago Regional Council completes its long term mapping and undertakes a change to the RPS as required by clauses 3.4 and 3.5 of the NPS-HPL. That argument was accepted by the Court – the interim definition was intended to create a holding position protecting all land that may be classified as HPL by regional council mapping, until that mapping does occur. Ultimately, what this means is that landowners and consent applicants are unable to undertake their own mapping of specific sites to seek to lessen the LUC of their land and therefore remove it from an HPL classification, in turn easing the consenting pathway. They must instead wait for the relevant regional council to notify a change to its regional policy statement relating to HPL, and then participate in that process if they seek to argue that their land is not HPL. Alternatively, land owners and consent applicants will need to rely solely on the exceptions for use and development of HPL contained in cl 3.6, 3.8, 3.9 and 3.10. We expect applicants will seek to test the boundaries of these exceptions in light of this decision. Knowing the LUC classification of rural land as per the NZLRI mapping will have increased importance for purchasers considering potential development opportunities, given the restrictions the NPS-HPL contains and its lack of ‘wiggle room’. If you require any assistance with or wish to discuss this decision or the NPS-HPL generally, please feel free to get in touch with a member of our specialist environment law and resource management team.

Fast-track Approvals Bill – the third fast-track consenting regime

The fast-track consenting regime proposed by the National/ACT/NZ First coalition government was introduced to Parliament on 7 March 2024. The most awaited aspect of the Fast-track Approvals Bill – the list of projects to be fast-tracked – is blank at this stage. A Fast-track Advisory Group of experts is to be established in the coming weeks to advise Ministers on what projects should be included in the legislation, following which the projects will be inserted into the schedules. The key aspects of the Fast-track Approvals Bill are as follows. Purpose The Bill’s purpose is to provide a fast-track decision-making process that facilitates the delivery of infrastructure and development projects with significant regional or national benefits. The Bill’s purpose has no reference to continuing to promote the sustainable management of natural and physical resources, unlike the COVID-19 Recovery (Fast-track Consenting) Act 2020 (FTA). Processes covered The Bill covers a much greater range of consents/approvals. In addition to resource consents and notices of requirement for designations under the RMA it includes consents/approvals under the Conservation Act 1987, Wildlife Act 1953, Freshwater Fisheries Regulations 1983, Reserves Act 1977, Heritage New Zealand Pouhere Taonga Act 2014, Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, Crown Minerals Act 1991, and Fisheries Act 1996. The Bill also makes a change to Environment Court processes under the Public Works Act 1981 for projects dealt with under the Bill. The FTA only dealt with resource consents and notices of requirement for designations under the RMA. Treaty of Waitangi The Bill requires persons exercising functions under it to act in accordance with Treaty settlements and recognised customary rights. The Bill does not contain a requirement to act in a manner that is consistent with the principles of the Treaty of Waitangi, unlike the FTA. Projects The Bill provides for two types of listed projects, and referred projects. The two types of listed projects will be: Part A – listed projects that can be referred straight to an Expert Panel. Part B – listed projects that may be considered by the joint Ministers for referral to an Expert Panel. The Bill contains criteria for being a referred project including whether the project will have significant regional or national benefits. An example of projects that may qualify include projects that will increase the supply of housing, address housing needs, or contribute to a well-functioning urban environment. Projects are referred to Expert Panels for consideration. Expert Panel The Expert Panel will be set up in a similar way to Expert Consenting Panels under the FTA. However, Expert Panels will only be making recommendations to the ‘joint Ministers’ who will make the decisions. The joint Ministers For the most part, the responsible ‘joint Ministers’ under the Bill are the Ministers for Infrastructure, Regional Development and Transport. This is a move away from the Ministers for the Environment and Conservation under the FTA, although the latter will join the others for Wildlife Act matters. Appeal rights Appeal rights are available to the High Court on a point of law only. Rights of judicial review are not affected by the Bill. Select committee process The Bill has a strong focus on infrastructure and development and will be controversial. It has been referred to the Environment Committee for a select committee process and is open for submissions until 19 April 2024. Please get in touch if you would like to make a submission or discuss things further.

A step forward for climate change – Smith v Fonterra Co-Operative Group Limited

On 7 February 2024 the Supreme Court released its decision in Smith v Fonterra and unanimously agreed to not strike out Mr Smith’s claims against seven of New Zealand’s largest green house gas (GHG) emitting companies. The threshold to strike out a claim is high and requires that there be no reasonably arguable claim. Like any other plaintiff with a tenable claim, Mr Smith will be entitled to have his case heard. Background The case concerned claims by Mr Smith, an iwi leader and elder of Ngāpuhi and Ngāti Kahu and a climate change spokesperson for the Iwi Chairs Forum, against Fonterra, Genesis Energy, Dairy Holdings Ltd, NZ Steel Ltd, Z Energy, Channel Infrastructure and BT Mining (Respondents). The claims asserted that the Respondents’ GHG emissions have contributed and will continue to contribute to global warming. This has caused and will cause harm to Mr Smith, his whānau, his descendants and others. Mr Smith’s claim comprised of three causes of action: Public nuisance; Negligence; and A proposed new tort involving a duty to cease contributing to damage to the climate system. The Respondents applied to strike out Mr Smith’s proceeding on the basis that it raises no reasonably arguable cause of action. The High Court struck out Mr Smith’s claims in public nuisance and negligence in 2020, but declined to strike out his claim based on the proposed new tort. The Court of Appeal went further and struck out all three causes of action. The Supreme Court’s decision The Supreme Court found that it was in no position to find that Mr Smith’s causes of action were untenable. It emphasised the high threshold for a strike out application noting that “pre-emptive elimination of proceedings is only appropriate where it can be said that whatever the facts proved, or arguments and policy considerations advanced at trial, a case is bound to fail”. The common law has not previously grappled with a crisis as all-embracing as climate change. However, the Supreme Court stated that this area of common law must develop “in the fertile field of trial, not on the barren rocks of a strike out application”. Can Tikanga inform the formulation of tort claims? Mr Smith claims, in accordance with tikanga, a whakapapa (genealogical) and whanaungatanga (kinship) relationship to the whenua (land), wai (fresh water) and moana (sea) around his land. His claim is that the respondents contributed to climate change effects that caused and will cause ongoing injury to the customary, cultural, historical, spiritual and nutritional values associated with these places. His tikanga based connection with these places provides the foundation for the claim that an injury to place is also an injury to himself, his whānau and descendants. The Supreme Court stated that whatever the cause of action, the trial court will need to grapple with the fact that Mr Smith purports to bring proceedings not merely as an alleged proprietor who has suffered loss, but also as a kaitiaki acting on behalf of the whenua, wai and moana. It must consider some tikanga concepts of loss that are neither physical nor economic. Addressing and assessing matters of tikanga simply cannot be avoided. Mr Smith’s case can now proceed to a full trial in the High Court.

Slope hazard mapping – what does this mean?

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.

Fast tracking New Zealand’s COVID 19 recovery

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.

COVID-19 Recovery (Fast-Track Consenting) Bill

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.