2018 produced and foreshadowed a number of important changes in the resource management and environmental space. 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.
In Christchurch, and around the country, home owners and renters alike have been renting out their spare bedrooms and baches to visitors via websites like Airbnb. The explosion in listings on these sites has led to complaints from neighbours about noisy guests (in turn leading to compliance action being taken by district and city councils), and complaints that the hosts (i.e., the person renting the room to guests) are not paying their fair share in rates.
The Ministry for the Environment is currently consulting on a suite of proposed amendments to the Emissions Trading Scheme; New Zealand’s principal policy response to climate change.
The Ministry for the Environment has released the first set of Draft National Planning Standards for public consultation. It is expected that further standards will be developed over time. The stated intention is that national planning standards will make plans easier to use and prepare under the Resource Management Act 1991.
As we count down to the National Environment Standards for Plantation Forestry coming into force on 1 May 2018, amendments have been gazetted this week that will have implications for how local authorities recognise the NES in their plans.
From 15 May 2018, all commercial and recreational vessel operators will need to comply with the Craft Risk Management Standard (the Standard) for Biofouling on Vessels arriving into New Zealand Territory. This represents a significant step forward in marine biosecurity management in New Zealand as we will become the first country in the world to introduce a nationwide standard for biofouling to prevent pests entering our waters from overseas.
The Conservation (Infringement System) Bill is currently with the Environment Committee and is open for submissions until Friday, 6 April 2018.
The Bill provides central and local government agencies with infringement notices as another tool for dealing with lesser offences under conservation legislation.
Following the August 2016 outbreak of campylobacteriosis in Havelock North, the Government established an inquiry to investigate and report on the outbreak. The Stage One Report was released on 8 May 2017 and identified what happened, the cause of the outbreak and provided an assessment of the people and agencies responsible for providing safe drinking water to Havelock North.
The second tranche of amendments introduced by the Resource Legislation Amendment Act 2017 came into force on 18 October 2017. These amendments aim to further streamline the resource consent process, with a move away from public participation in the process in favour of a more straightforward consenting pathway.
The National Policy Statement for Freshwater Management 2014 provides national direction for the management of freshwater under the Resource Management Act 1991.
On 7 August 2017, the Government announced amendments to the NPSFM which will come into force on 7 September 2017.
The Parliamentary Commissioner for the Environment's latest report, released on 27 July 2017, highlights and addresses the lack of a clear process to achieving New Zealand's emissions reduction targets.
The much anticipated National Environmental Standards for Plantation Forestry Regulations were notified in the NZ Gazette on 3 August 2017. These Regulations, which come into force on 1 May 2018, establish a new nationwide consenting regime for plantation forestry activities.
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).
This decision of the Environment Court concerns an application for various declarations made by Wellington Fish and Game Council and the Environmental Defence Society Inc, that the Manawatu-Wanganui Regional Council has been failing to correctly implement the Manawatu-Wanganui Regional Plan.
The Resource Legislation Amendment Bill is currently progressing through Parliament whilst Government is undertaking other pieces of significant work in relation to the New Zealand planning system, which brings into question the fate of the Resource Management Act 1991.
Today the Government announced a suite of further freshwater management reforms. The headline change is a new target that 90 per cent of New Zealand's lakes and rivers meet swimmable water quality standards by 2040.
The Ministry of Business, Innovation and Employment (MBIE) is calling for submissions on the recently released Draft New Zealand Energy Efficiency and Conservation Strategy 2017-2022.
The Government has recently responded to an evolving telecommunications landscape as it continues to roll out additional national planning direction in the form of national policy statements (NPSs) and national environmental standards (NESs).
On 1 January 2017, the National Environmental Standards for Telecommunication Facilities 2016 (NESTF 2016) will replace the National Environmental Standards for Telecommunication Facilities 2008 (NESTF 2008).
Environment Minister Dr Nick Smith recently announced that the Māori Party will support the Resource Legislation Amendment Bill enabling the Bill to progress through the Parliamentary process. These reforms were first introduced in November last year and Wynn Williams published an article regarding the proposed reforms.
The Marlborough District Council notified the proposed Marlborough Environment Plan (MEP) on 9 June 2016. Now is your opportunity to have your say by lodging a submission.
As foreshadowed in the 2016 Budget announcement, the Government has released the proposed National Policy Statement on Urban Development Capacity (NPS UDC) for consultation. What might surprise many is that it is not just set to address the problem in the Auckland region, but Tauranga, Hamilton, Queenstown and Christchurch are also grouped in the "High Growth Urban Area" category.
Christchurch has a new legal framework to support regeneration over the next five years. The Canterbury Earthquake Recovery Act 2011 ("CER Act") expired on 19 April 2016 and the Canterbury Earthquake Recovery Authority is no more. The CER Act has been replaced by the Greater Christchurch Regeneration Act 2016 (the "Act").
A recent hikoi and associated petition presented to Parliament this week highlights the increasing focus being given to the management of the quality of freshwater in New Zealand.
In January 2016, the Ministers for Primary Industries, Conservation, and the Environment announced plans to improve the management of New Zealand's oceans by implementing a revised system of marine protected areas designed to improve and build upon management systems which already exist.
On 26 November 2015, the Minister for the Environment, the Honourable Nick Smith, announced the long-awaited details of the suite of reforms to the Resource Management Act 1991 ("RMA") and other environmental legislation proposed in the Resource Legislation Amendment Bill.
The main objectives of the reforms are to achieve better alignment and integration across the resource management system, proportional and adaptable processes, and robust and durable decision making.
What is a certificate of compliance?
• A consent authority issues a certificate of compliance under section 139 of the Resource Management Act 1991 ("RMA") to confirm that an activity can be done lawfully in a particular location without a resource consent (i.e as a permitted activity). A certificate of compliance is treated as a resource consent and provides certainty to a resource user that their activity does not require a resource consent.
What is a written approval?
The resource consent process under the Resource Management Act 1991 ("RMA") provides an opportunity for certain persons affected by an activity seeking consent, to become involved in the decision-making process. A consent authority is required to notify adversely affected persons of the application for consent. Those affected persons are then entitled to lodge a submission in support or opposition to the application. Anyone who has lodged a submission can bring evidence and be involved in the hearing of a resource consent application.
The new six-month consent processing time frames will be introduced on 3 March 2015 when Part 3 of the Resource Management Amendment Act 2013 (the "Amendment Act") comes into force. This will have a significant impact on the resource consent process, which has been overhauled in an attempt to make the entire procedure more efficient and provide a degree of certainty to applicants. Although these amendments were originally proposed to hasten "medium-sized projects" the amendments now apply across the board to all resource consent applications.
The following article appeared in the August 2014 edition of the Resource Management Journal (August 2014 RMJ)
The Resource Management Act 1991 (the RMA) relies on public participation to inform council plan- making, principally in the form of consultation under clause 3 of Schedule 1, the submission and further submission processes, and through appeals to the Environment Court. District and regional plans are documents that people “order their lives by” and so it is of paramount importance that the public are given the opportunity to be involved in the processes to establish those plans.
The review of the Christchurch City Plan and Banks Peninsula District Plan will be streamlined by an Order in Council made under the Canterbury Earthquake Recovery Act 2011 ("CER Act").
The Canterbury Earthquake (Christchurch Replacement District Plan) Order 2014 (the "Order"), which came into force on 8 July 2014, requires the Christchurch City Council ("the Council") to review the existing district plans and develop a replacement district plan. The Order modifies the provisions and application of the Resource Management Act 1991, and remains in force until 19 April 2016.
The Environmental Reporting Bill will, if enacted, introduce a national-level environmental reporting system focusing on five key domains: air, climate and atmosphere, freshwater, land, and marine.
Reform in the resource management field continues with the announcement on 7 November 2013 of proposed changes to the National Policy Statement for Freshwater Management 2011 ("NPS"). This RMA reform update relates to the proposed amendments to the NPS; along with an update on the Resource Management Amendment Act 2013 (and changes to section 32 which come into force in December); and the further RMA reform signalled by the Government.
The litigation regarding noise associated with New Zealand Windfarms Limited's Te Rere Hau wind farm continues, with leave granted by the High Court for Palmerston North City Council to appeal to the Court of Appeal (Palmerston North City Council v New Zealand Windfarms Limited  NZHC 2654, 11 October 2013 Williams J.).
The Supreme Court has recently released its decision West Coast ENT Inc v Buller Coal Limited  NZSC 87, upholding the earlier findings of the Environment Court and the High Court that the effects of coal combustion on climate change are irrelevant to the resource consent process.
Existing use rights under the Resource Management Act (RMA) have an important role to play in the Rebuild of Christchurch.
Queenstown has become a hotspot, not only for adventure tourism, but also resource management litigation. In a recent article, we discussed caselaw involving two resource consent applications to build a Pak'nSave and a Mitre 10 Mega at Frankton Flats, Queenstown (the "Consent Cases"). A further development has emerged in a related High Court appeal.
The recent decisions of the High Court in Queenstown Central Ltd v Queenstown Lakes District Council have highlighted developments in fundamental principles related to resource consent applications for non-complying activities, the definition of "the environment", and the meaning of the word "minor".
On 11 June 2013, the Local Government and Environment Select Committee released its report on the Resource Management Reform Bill with a majority recommendation that it be passed with amendment.
Over the last ten years, the focus in Canterbury has been on getting water. Now that water has been allocated, the focus is now moving to securing the reliability of that water and controlling the discharges associated with its use. This new focus is wider than just dairying, and includes the use of land for any primary production.
The Courts have recently looked at the issue of whether a Council owes a duty to take reasonable care in issuing a section 224 certificate and ensuring registration of a consent notice under the Resource Management Act 1991. The outcome of these proceedings may have important consequences for local authorities.
In a jointly released initiative, the Minister for the Environment Amy Adams and Minister for Primary Industries Nathan Guy have called for submissions on New Zealand's freshwater management regime.
Recent litigation has seen the High Court provide a timely reminder to consent authorities about the scope of their obligations when processing applications for Certificates of Compliance. As the decisions show, these obligations, if left unfulfilled, can result in costly, time consuming judicial review proceedings to the eventual detriment of applicants, consent authorities and affected third parties.
Minister for the Environment, Hon. Amy Adams released a discussion document on the next phase of reforms to the Resource Management Act 1991 (the "RMA") on 28 February 2013. Further reforms to the RMA had been anticipated following amendments made in 2009 to simplify and streamline parts of the Act.
The Christchurch Central City Recovery Plan could result in the Canterbury Earthquake Recovery Authority compulsorily acquiring large tracts of the central city for the Anchor Projects.
Many local authorities around the country are in the process of reviewing regional and district plans, prior to notifying proposed new versions of those documents. Interested persons will be able to lodge submissions and further submissions on the proposed plans.
One of our resource management partners Amanda Douglas writes an article for the Q& M New Zealand Quarrying & Mining about the Resource Management Act.
Many landowners in the central city have now received letters from CERA, the Canterbury Earthquake Recovery Authority, informing them that their land in the central city has been designated for Anchor Projects under the Central City Recovery Plan. This article describes the processes of designation, acquisition and compensation under the CER Act.
The High Court at Greymouth has recently found that a council does have a case to answer where it incorrectly certifies conditions of subdivision have been met and a subsequent purchaser of the land relies on those certifications.
Road Metals Company Limited (Road Metals) sought consent to establish and operate a quarry, involving surface extraction of river metals from a property in Burnham adjacent to Rolleston. Both district and regional consents were needed.
The blueprint for the Central City has been released, so what does it mean – particularly if you own property in the Central City? How does it affect existing activities in the new zones?
Did you hear the one about the developer, the contractor, the sub-contractor and the engineer? The contractor was responsible for the earthworks, the sub contractor carried out the works, the developer assured the contractor that no resource consents were required and the engineer oversaw the project. Who do you think was prosecuted when unconsolidated sediment made its way into streams and, ultimately, the sea, following heavy rain?
A recent decision of the High Court in Creswick Valley Residents Association Inc v Wellington City Council  NZHC 644 may have significant implications for Councils and their public notification obligations under the First Schedule of the RMA.
The Akaroa Harbour Marine Protection Society Inc (the "Society") made an application in 1995 seeking a marine reserve within the Akaroa Harbour. The Minister of Conservation (the "Minister") declined the application on the basis that the reserve would unduly interfere with or adversely affect existing recreational use of the area, particularly for recreational fishing.
Mining is a divisive issue in New Zealand. Deniston Plateau, offshore exploration, Save Happy Valley and Schedule 4 land are terms that invoke diverging opinions and heated discussions.
The Biosecurity Law Reform Bill was introduced to Parliament on 10 December 2010. It has been referred
to the Primary Production select committee, with submissions due by Thursday 10 February 2011.
The Aquaculture Legislation Amendment Bill (No 3) was introduced in Parliament on 16 November 2010. It has been referred to the Primary Production select committee, with submissions due by Friday 11 February 2011.
The Central Plains Water saga - all the way up to the Supreme Court, and this is just the preliminary
skirmishing. The hearing of CPW's application to take water for irrigation, by the Council's commissioners,
has not yet concluded - so appeals on the actual application are still just a twinkle in the parties' eyes.
The Courts in this litigation examined the relationship between existing use rights and the permitted
baseline, and the relationship between the common law permitted baseline and the statutory permitted
baseline. They also provided guidance on the date at which existing use rights are assessed, where
activities lessen over time and further restricting rules are introduced.
Finally, a warning sounded by the Court in the case of Briggs v Christchurch City Council, where the Court
said it was drawing a line in the sand about parties giving expert evidence to the Court in their own cases.
The Court of Appeal's decision in this case produced a major change in the approach which should be taken
to prohibited activity status. There was a very restricted view taken by the lower courts in this case, and
other cases. The Court of Appeal has said that there are quite a few circumstances in which it is
appropriate to make an activity a prohibited activity in a plan.
This paper sets out some of the amendments brought into effect by the Resource Management (Simplifying
and Streamlining) Amendment Act 2009, which impact on resource consent applications. Whether you are
a council planner applying the amendments to the processing of an application or a consultant planner
preparing an application and steering it through the processing stage, you need to know the ins and outs of
An outline of the amendments to the Resource Management Act which came into effect on 1 October
2009, with particular focus on amendments which impact on the processes and practices of transport
engineers and planners.
The Resource Management (Simplifying and Streamlining) Amendment Act 2009 came into effect on 1
October 2009, bringing a number of changes aimed at ‘simplifying and streamlining’ a number of resource
Situations often arise during the resource consent process where an applicant may wish to change its application after the application has been notified. The changes may result from concerns raised in submissions, a request for further information from a consent authority, or at the suggestion of the consent authority itself. The applicant’s own advisers may even suggest that the application be amended to incorporate changes to better serve the applicant’s needs. This raises the question of whether an applicant can amend an application after it has been notified, without the need to re-notify the application.