Vanessa Hamm

Qualifications

LLM (First Class Hons), University of Auckland 2020
LLB, BA, University of Auckland 1996
Admitted to the Bar in New Zealand 1996

Community Activity

Font Tauranga Public Art Trust (Co-chair)
Resource Management Law Association (Member)

Contact

DDI: +64 7 927 2754
M: +64 27 452 2343
E: vanessa.hamm@hobec.co.nz

Vanessa Hamm is a partner at Holland Beckett specialising in resource management, local government, and public works matters.

Vanessa joined Holland Beckett in 2004 and became a partner of the firm in 2007.

Vanessa represents clients in relation to all resource management matters at Council, Environment Court, High Court and Court of Appeal level, across a range of industry sectors. She also assists clients with advice on resource management matters generally.

Vanessa’s experience includes acting on the following projects:

Consent applications in the coastal environment such as deepening and widening the Tauranga Harbour channels and for Port expansion.
Representing clients in relation to renewable electricity generation resource consent and statutory planning matters including:
- Geothermal power plans (reconsenting and new build)
- Hydro-electricity generation projects
- Solar generation projects
Representing Rangitata Diversion Race Management Limited in mid-Canterbury with respect to its application for a 53Mm³ Klondyke water storage facility and other resource management matters.
Discharge matters such as wastewater discharges and air discharges.
Large scale land development such as the planning and consenting for the Rangiuru Business Park (148 ha net).

In terms of public works matters, Vanessa has sought and successfully obtained, requiring authority status for infrastructure clients, and has also acted for a number of landowners subject to land acquisition processes.

Vanessa has also accepted decision-making roles within her area and is currently a qualified hearing commissioner and appointed to the list of Auckland Council independent commissioners. She has also chaired expert consenting panels under the COVID-19 Recovery (Fast-Track Consenting) Act 2020.

Vanessa Hamm's Expertise

Renewable Energy & Climate Change

Local Government

Environment & Planning

Vanessa Hamm's News & Resources

Blueprint for RMA Reforms

The Government signals a radical transition with less red tape for resource management. Last week, the Expert Advisory Group’s Blueprint for Resource Management Reform was released, along with a cabinet paper discussing the Group’s proposal. This is a major step forward in the Government’s Resource Management Act 1991 (RMA) reform agenda. Some of the proposals (such as the focus on property rights) were foreshadowed, however others offer some intriguing insights into the Government’s approach to shaping the RMA of tomorrow. Below, we delve into the Blueprint and what the Government has said so far. Format of the replacement The Government has proposed two new Acts to replace the RMA: The Planning Act, which proposes “to establish a framework for planning and regulating the use, development and enjoyment of land”; and The Natural Environment Act, which proposes “to establish a framework for the use, protection and enhancement of the natural environment”. The two new Acts will be based on enjoyment of property rights while focussing on the concept of “externalities” – being the costs or benefits resulting from activities that fall on a third party. Effects borne by the person undertaking the activity will not be controlled. Each Act will also contain a set of decision-making principles, to guide decision making. This is a notable new concept which is not present in the RMA. Examples of the proposed decision-making principles include recognising the positive effects of development and balance these against costs, providing guidance as to how to resolve conflicts within documents, and consider whether adverse effects should be minimised, remedied, offset, or mitigated. Key points The Blueprint proposes new approaches to many matters, however, some aspects bear strong resemblance to the short lived Natural and Built Environment Act 2023, such as the proposals around national direction, environmental limits, and spatial planning. Below we outline some of the key proposals. Permitted activity presumption – the two Acts will have starting presumptions that a land use is enabled unless there are significant impacts on either the ability of others to use their own land or on the natural environment. National standardisation of the RMA system – including nationally set land-use zones, rules, and policies. This will allow spatial and regulatory plans to be collated and accessed as “one national e-plan for New Zealand”. No more regional policy statements – these will be eliminated and partially replaced by spatial plans made under the Planning Act. A single regulatory plan per region – the regional council will prepare a natural environment plan, and district councils will each prepare a chapter of a combined district plan. No more first in first served – where a resource approaches overallocation, or an environmental limit will soon be breached, the relevant community must agree a timeframe and approach for making improvements and settle on an alternative allocation method to ‘first-in-first-served’. Changes to consent processes: Alternative consent processing tracks, such as direct referral and nationally significant proposals, are not proposed to be included in the Planning Act. The two Acts will raise the bar for when a person is considered to be affected, with only those ‘materially affected’ by an activity able to participate in consent processes. When an application is fully notified, the Blueprint proposes that notification be limited to the district within which the activity is located. Changes to activity classes, including: Making greater use of permitted activities; Removing controlled activities; Greater focus on the use of restricted discretionary activities; Removing non-complying activities; Narrowing the scope of prohibited activities and providing direction on how they are to be used. Environmental limits – the Natural Environment Act will require environmental limits to protect the life-supporting capacity of the natural environment. A new Planning Tribunal – to offer quick, low-cost conciliation and administrative review of council functions. Of note is a proposed new route to challenge notification decisions by way of administrative review – with challenge of notification decisions only available by way of judicial review to the High Court at present. Reverse sensitivity will be no more – the Blueprint proposes that the Planning Act will clarify the protection of existing use rights, including that those who ‘come to the nuisance’ will not be able to complain about it. Landscape and amenity effects – do not have a role in the new system, beyond protecting outstanding features and landscapes, and areas of high natural character. Treaty settlements and Te Tiriti purpose – the Government has confirmed that provisions honouring existing Treaty settlements will be included in the Acts. The Blueprint recommended the existing s 8 RMA clause and the requirement to ‘take into account’ the treaty principles be carried forward, however, the Government has said that the departure from the recommendation was due to having “a different view as a Government”. A copy of the press release, including the Blueprint and cabinet paper, can be found here. The bold goals of the Government for RMA reform mean users and practitioners are in for some interesting times. If you have any questions or wish to discuss the RMA reforms, please get in touch with our resource management team.

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 – Select Committee report back

On Friday 18 October 2024, the Environment Committee reported back on the Fast-track Approvals Bill which was introduced on 7 March 2024. We take a look at what’s changed, what stays the same, and the road ahead. What’s changed? The Environment Committee has recommended the following key changes. The purpose of the Bill has been re-framed as “to facilitate the delivery of infrastructure and development projects with significant regional or national benefits”. Timeframes are amended slightly to provide the Expert Panel with 10 working days (rather than five) from their appointment to issue an invitation for written comments, and to provide those invited to comment with 20 working days (rather than 10) to provide those comments. Expert Panels no longer include an iwi appointee. However Expert Panels must include at least one member who is suitably qualified in te ao Māori and Māori development. The Expert Panel (not Ministers) will make final decisions on substantive applications. When considering applications, the Expert Panel must give the “greatest weight” to the purpose of the Bill. The Expert Panel may decline an approval if it forms the view that the activity or activities for which the approval is sought would have one or more adverse impacts, and those adverse impacts are sufficiently significant to outweigh the purpose of the Bill even after any conditions that the panel may set in relation to those impacts are taken into account. The lapse provisions have been amended to allow some discretion. Lapse periods must be at least two years, and if not specified, a default lapse period of five years will apply. What’s stayed the same? The Bill is still an ‘omnibus’ bill which covers a wide range of processes, not just resource consents. A person who has applied for an approval under another Act must withdraw that application before lodging a substantive application that seeks a corresponding approval under the Bill for the same, or substantially the same, activity. The Expert Panel still has a window of 25 working days from the closing date for comments to issue its decision, which is significant given the scale and complexity of many of the projects listed (although suspensions are provided for and there is the ability to extent that timeframe). Appeal rights are available to the High Court on a point of law only. Rights of judicial review are not affected by the Bill. The road ahead The Bill still refers to Schedule 2A and 2B (with provisions for Part A listed projects and Part B listed projects), despite the Minister’s announcement on 6 October 2024 that “Because of the unprecedented level of interest in this process, it became clear that so many projects were suitable for 2A that having a separate list for Schedule 2B became unnecessary, so it will be deleted from the Bill.” Presumably this will be amended as the Bill progresses through Parliament. For listed projects, the immediate issue will be resourcing the processing of those. With 149 projects selected for listing in the Bill, it remains to be seen how many will convert into lodged applications (and how quickly). There is also a mandatory requirement to consult specified persons before lodging the substantive application with the EPA. Once applications are lodged, Experts Panels will need to be formed to process applications. Overall, the fast-track process is likely to be resource intensive for all participants. Seeking referral for fast tracking is still possible (as was the case with the COVID-19 (Fast-track) Consenting Act 2019). However, the question will be the extent to which there is capacity within the system for the processing of referral applications, and referred projects, in light of the volume of listed projects. The Bill is expected to become law before the end of the year. For any questions, please contact one of the below who all have experience with fast-track applications.

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.

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.

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.

New government and a new round of RMA reforms to go with it

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

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.