By: Michelle Mehlhopt, Philip Maw
Published: 21/06/2017
New Zealand's location, sitting across the boundary between the Pacific and Australian plates, means that natural hazards are a part of life here.  Events such as the Christchurch earthquake sequence of 2010-2011, the November 2016 earthquake in Kaikoura and flooding in the Bay of Plenty earlier this year illustrate the need to effectively plan for, and respond to, natural hazards.  Accordingly, the management of natural hazards has been given increasing importance in the recent amendments to the Resource Management Act 1991 (RMA or Act).  Here we outline some of the key changes and implications for local authorities arising from the amendments.

Section 6 – Matters of national importance

The management of significant risks from natural hazards is now listed as a matter of national importance in section 6, which means that these risks must be recognised and provided for as part of the sustainable management of natural and physical resources.
 
The requirement to "recognise and provide for" matters requires a decision maker to make actual provision for the listed matters.  In contrast, the obligation to "have particular regard to" certain matters in section 7 requires those matters to be given genuine attention and thought, although they may be still be ultimately rejected.
 
The management of significant risks from natural hazards is now elevated above matters in section 7, such as the efficient use and development of natural and physical resources.  Accordingly, when faced with these competing considerations local authorities can now place greater weight on the management of significant risks from natural hazards.

"Significant risk"

The term "significant risk" is not defined in the RMA.  Furthermore, "risk" has not previously been referred to in the RMA except under section 32, whereby local authorities are required to assess the risk of acting or not acting where there is uncertain or insufficient information and in the context of the matters that must be addressed as part of an assessment of environmental effects under Schedule 4. 
 
An assessment of the activity’s effects on the environment must address any risk to the neighbourhood, the wider community, or the environment through natural hazards.
 
Up until this point, the RMA has instead focussed on the avoidance or mitigation of natural hazards, requiring local authorities to control the use of land (or the actual or potential effects of the use, development, or protection of land), including for the purpose of the avoidance or mitigation of natural hazards.
 
What is a "significant risk" will no doubt be the subject of debate in the future.  The Courts have accepted that managing natural hazards is about risk management.  They have further accepted that risk is the product of probability and consequence in all its forms (meaning an event with a high probability can be low risk if the consequence is low).  Clarity may be provided through the new National Policy Statement for Natural Hazards (which the Minister has stated an indicative date for completion of 2018), where there may be an opportunity to provide guidance through appropriate assessment criteria.

Subdivision

Section 106 of the RMA allows consent authorities to refuse applications, or place conditions on consents, to subdivide land in certain circumstances. The section will be amended from 18 October 2017 so that it requires consideration of all risks from natural hazards.  A corresponding change will also be made to section 220 in the context of what conditions may be imposed on a subdivision consent.
 
Previously, decision makers could only take into account erosion, falling debris, subsidence, slippage and inundation from any source likely to result in material damage.  This created confusion as to what natural hazards could be considered.  Accordingly, the amendment to section 106 removes any uncertainty about the scope of natural hazards that may be considered and reflects the definition of natural hazards in section 2 of the Act.

King Salmon

In essence, following the Supreme Court's decision in Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2014] NZSC 38, (2014) 17 ELRNZ 442, [2014] 1 NZLR 593, [2014] NZRMA 195, the task of a local authority when assessing a planning document does not require consideration of Part 2, unless there is uncertainty, incompleteness or illegality in the objectives and policies of higher order documents to which the regional policy statement or regional plan is required to give effect.  This is because each of the higher order documents are assumed to give effect to, or particularise Part 2 for the particular context in which they have been prepared.
 
With the recent addition of natural hazards to section 6, we are now faced with the issue of incompleteness in the higher order documents.  This raises an interesting question as to whether for instance a decision maker on a district plan is required to revert to Part 2 to recognise and provide for management of significant risks from natural hazards.  From the ruling in King Salmon it would appear that they must, until such time as the intervening superior documents are reviewed in light of changes to Part 2.

Conclusion

The amendments confirm a risk based approach to the management of natural hazards and give elevated priority to the management of significant risks from natural hazards which has previously been missing from the RMA.  This means that when faced with competing considerations, local authorities can now place greater weight on the management of significant risks from natural hazard risks.

In terms of the implications for planning, the true extent of these will not be known until the introduction of the new NPS for Natural Hazards.  However, until then the applicability of the management of significant risks from natural hazards as a matter of national importance in section 6 in the context of decisions on plans or resource consents will need to be assessed on a case by case basis in light of King Salmon.
 
The amendments will all certainly start to bite from 18 October 2017 when consent authorities have the ability to decline subdivision consents where there is a significant risk from any natural hazards.
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