Cory Lipinski

Qualifications

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

Contact

DDI: +64 7 262 0426
M: +64 27 599 4939
E: cory.lipinski@hobec.co.nz

Cory is a solicitor 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 fiancé walking various family members’ dogs or at the gym doing his best impersonation of a competitive powerlifter.

Cory Lipinski's Expertise

Environment & Planning

Cory Lipinski's News & Resources

Wildlife Act Authorities – 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. Background: 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. 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. Decision: 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 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. 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 has 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 has 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 for results 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 an 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

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 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 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 the Primary Sector 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 sit 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 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 your or your business, please feel free to contact us.

Pushing Residential Development “Up and Out” – The Government’s ‘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. 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.

National Built and Environment Act 2023 and the Spatial Planning Act 2023 – what is in effect (at least for now)?

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.

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.