By: Mike Doesburg
Planning ahead: 2019

2018 produced and foreshadowed a number of important changes in the resource management and environmental space.  Not least of these was the final chapter in the Davidson case, which provided some certainty about the meaning of those four little words “subject to Part 2”.  2019 looks set to provide a raft of further changes.  Most people are back at work now and gearing up for the year ahead – what better time to reflect on what 2018 brought and look ahead at some of the things we know are coming in 2019.

2018 in review

Case law: Part 2 is back, sometimes

Without a doubt the most awaited development in resource management and environmental case law in 2018 was the judgment in R J Davidson Family Trust v Marlborough District Council [2018] NZCA 316.  The Court of Appeal clarified that “subject to Part 2” in section 104 means that consent authorities must have regard to Part 2 when assessing resource consent applications, when it is appropriate to do so.  Recourse cannot be had to Part 2 where it would subvert a clearly relevant restriction in a plan that has been prepared having regard to Part 2 and that provides a coherent set of policies designed to achieve clear environmental outcomes.

While we can all be grateful for the clarification in Davidson, its full implications remain to be seen.  Jurisprudence will develop as the Environment Court works with the judgment, just as it did with King Salmon.  In the meantime, for each application, consent authorities will need to carefully consider whether the relevant plan or policy statement allows recourse to Part 2 – an error either way may expose the decision to being overturned on appeal.

Other notable cases in 2018 included: the Environment Court’s first use of a restricting order, a new power to prevent vexatious litigants from bringing further proceedings (Page v Whanganui District Council [2018] NZEnvC 94); confirmation by the Court of Appeal that the definition of subdivision in section 218(1) of the RMA provides a precise, exclusive list – transactions that fall outside that list are not subdivisions (Spark New Zealand Trading Ltd v Clearspan Property Assets Ltd [2018] NZCA 248); and the Environment Court’s approval of the directly referred application for resource consents for the America’s Cup in 2021, following a two-day hearing (Panuku Development Auckland Ltd v Auckland Council [2018] NZEnvC 179).

RMA reform: the promise of change

While 2018 did not see the introduction of a new RMA Amendment Act, the Government has clearly signalled that change is coming.  In November the Minister for the Environment announced a two-stage process for reforming the RMA.  Stage One will wind back aspects of the 2017 amendments (including changes to notification and appeal rights), as well as providing new changes such as empowering the Environment Court to make declarations on notification decisions and enabling regional councils to review multiple consents at the same time.  Stage Two will bring a “comprehensive” review of the resource management system.  RMA reform looks likely to be an election issue for 2020, with the National Party also working on a draft RMA reform bill.

Reform does not stop with amendments to the RMA.  The Government’s Essential Freshwater policy document promises noticeable and measurable improvements in water quality by 2023.  This will be supported by further changes to the National Policy Statement on Freshwater Management and a new National Environmental Standard on freshwater quality – both promised to be in place by 2020.

In the urban development space, the Minister of Housing and Urban Development announced further details on the proposal to create a Housing and Urban Development Authority, which will lead small and large-scale urban development projects.  To cut through red tape, the Housing and Urban Development Authority will have special powers, including access to streamlined planning and consenting processes, the ability to compulsorily acquire land and the ability to fund, build and change infrastructure.  A Bill is expected to be introduced in the second quarter of 2019.

The Government is also pushing ahead with the Zero Carbon Bill, which will set a long-term commitment to transition New Zealand to a low emissions economy.  Over 15,000 submissions were made on the discussion document released in June 2018.  Drafting of the Bill is under way and the Government aspires to pass it into law by mid-2019.

2019: the year ahead

At this stage, it seems that 2019 is going to be consultation-heavy, given the changes promised in 2018.  This includes an initial stage of RMA reform, consultation on a new NPS and NES on freshwater, the development of a Housing and Urban Development Authority and progress of the Zero Carbon Bill.

However, other significant changes are coming. 

Don’t forget about National Planning Standards

It is important to remember that the National Planning Standards, which were consulted on in 2017 and 2018 are coming this year.  The RMA provides that the first set of Standards must be approved by 19 April 2019.  The draft Standards that were released for feedback in 2018 address a range of structural matters, which all regional and district plans will need to implement.  For the most part the Standards will simply standardise the look and feel of planning instruments, however, some changes are substantive and may have significant implications.  For example, the “Definitions” Standard provides dozens of definitions that plans must adopt (and cannot replace with other definitions with different meanings).  As definitions are critically important to how plans function, the Definitions Standard is likely to cause issues for consent authorities and plan users when it is implemented over the next five to seven years.

Compliance, monitoring and enforcement is a focus

2019 is also likely to bring a continued focus on compliance, monitoring and enforcement.  In July 2018 the Ministry for the Environment published best practice guidelines for compliance, monitoring and enforcement under the RMA.  The best practice guidelines are part of a central Government push for more robust and more consistent enforcement of the RMA.  The Minister for the Environment has also proposed to establish a new unit to oversee compliance and improve consistency across councils.  The unit is proposed to be based within the Environmental Protection Authority, who will be given power to carry out RMA enforcement functions.  $3.1 million has been allocated over four years to fund the unit.

Case law

On the case law front, the Courts will grapple with Davidson, which will likely be tested by some interesting factual scenarios.  The Senior Courts will no doubt produce their fair share of interesting authority.  For example, in 2018 the Court of Appeal granted the Attorney-General leave to appeal the High Court’s decision in Attorney-General v Trustees of the Motiti Rohe Moana Trust [2017] NZHC 1429 on four questions of law.  At the heart of that appeal is the relationship between a regional council’s functions in the coastal environment and the Fisheries Act 1996.

Bring on 2019

If the above is not enough, remember that this article has not touched on any of the projects, consent applications or plan reviews that are working through the system or are yet to be announced.  2019 is going to be an exciting year in the resource management and environmental space.

If you have any issues related to the matters addressed in this article, or need advice on any other resource management or environmental issue in 2019, please contact our Resource Management Team.
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