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Resource Management Update – April 2018

Home Insights Resource Management Update – April 2018

In this edition:

Getting our transport priorities straight:

Insights into the draft Government Policy Statement on Land Transport 2018 & the revised Auckland Transport Alignment Project 2018

The Ministry of Transport has recently released the draft Government Policy Statement on Land Transport 2018 (GPS), which outlines the Government's strategy to guide land transport investment over the next ten years.

The GPS

The release of the draft GPS has been accompanied by much media angst that it reflects a Government of car-hating ideologues abandoning investment in roads. In reality, while there is a clear, and arguably overdue, shift towards increased investment in public transport and active modes (albeit framed as mode neutrality), roads of various forms continue to attract the majority of funding under the draft GPS. In particular, the State Highway improvements activity class attracts a funding range of $1,200m to $1,550m, compared to $530m to $925m for the combined public transport, rapid transit, and transitional rail activity classes, and only $40m to $95m for walking and cycling improvements. A further $1,350m to $1,790m is available for State highway maintenance, local and regional roads.

The draft GPS has four priorities, being: Safety, Access, Environment and Value for Money, with safety and access being the key drivers of investment.

On safety, the draft GPS supports the Safe System approach, which seeks to create a forgiving road system that makes allowance for human fallibility and vulnerability. That is, the road network is designed to protect people from death and serious injury even where they make mistakes. This approach was adopted by the New Zealand Transport Agency for its State Highway improvements in 2010, so in practice the focus on this in the draft GPS is not so much a new approach as it is a change in emphasis and investment. Previously, most safe system implementation occurred as part of other improvements. This change in emphasis is likely to result in a significant reduction in fatalities and serious injuries as well as a steady stream of small to medium size roading projects.

Access is the core priority of the draft GPS and it is much broader in its scope and ambition than what might normally be perceived as the transport network. It starts by recognising that transport investment should enable people and goods to access opportunities and markets and that "mobility is a means to achieve better access, but not an end goal in itself". That approach leads not just to the construction of transport infrastructure but also to a focus on land use and transport integration so that people live closer to opportunities and therefore don't need to make journeys. In this regard, we can expect intensification of development around town centres and rapid transit nodes. The new approach also recognises that the rapid evolution of technology will alter the transport environment – from allowing people to access opportunities virtually to new ways of engaging with travel like mode share apps, autonomous vehicles or transport apps that assist people to make transport choices.

The access priority also provides for investment in physical transport infrastructure and this continues to attract the bulk of the funding for the National Land Transport Fund, with a greater emphasis on public transport, rapid transit and cycling but with still significant investment in State Highway improvements as noted above. In practice, this is likely to lead to the abandonment or at least reduction in scale of some significant State Highway projects and the advancement of major rapid transit projects (on which, see the discussion on ATAP below). However, some major State Highway upgrades may still proceed as a result of the emphasis on safety or because - like the Manawatu Gorge realignment - they are nationally important connections.

While a business case could certainly be made for continued investment in many parts of the State Highway network (and Northland leaders have made such a case for the continuation of proposed projects between Warkworth and Whangarei) congestion within urban centres, particularly Auckland, is clearly a massive drag on the economy that is realistically not going to be able to be solved simply by further investment in urban motorways (at least once the Northern Corridor project, which completes the Western Ring Route, is constructed).

A key objective of the draft GPS is a 'land transport system that enables transport choice'. It is often said that New Zealanders love their cars and are not public transport users or cyclists. However, most people simply have no choice, with private motor vehicles required for access in most parts of the country. In urban centres the proposed investment in public transport, and in particular rapid transit, in order to create that choice, is essential and overdue. That investment should move more people faster and open up space on the road network for people and freight with journeys not able to be served by the public transport network (provided the services are then regular and reliable).

Enabling people with smaller commutes to shift to walking and cycling will similarly reduce demand on the road network. In the short term, however, rapid transit and active mode projects that require space from existing road users (for example, light rail or many cycle routes) are likely to be hugely controversial. On balance, the focus on alternative transport modes should give urban commuters an alternative to spending large parts of their lives stuck in congestion.

Consultation on the draft GPS is open until Wednesday 2 May. Please contact one of our experts if you would like any further information on the draft GPS and the submission process. 

Auckland Transport Alignment Project 2018 (ATAP)

Minister Twyford and Mayor Goff have today announced the release of a revised ATAP. As expected the revision redirects investment to the rapid transit network and effectively adopts the 'Congestion Free Network' long promoted by transport campaign group Greater Auckland. ATAP provides for the City to Airport Light Rail connection and a new City to Northwest light rail line along the North-Western Motorway corridor to Kumeu. It also provides for investment in an extension of the Northern Busway, for a new Eastern Busway to Botany, and for electrification of rail to Pukekohe. These infrastructure investments are well overdue and may transform transport in Auckland by providing an alternative to being stuck in motorway congestion.

On roads, East West Link is being reconsidered in reduced form, and Penlink and Mill Road are now prioritised. Walking and cycling facilities are now also prioritised with SkyPath receiving specific mention by the Minister. The Government and Council are proposing to address the anticipated funding shortfall through the regional fuel tax – which is expected to unlock more than $4 billion in expenditure.  

By Cameron Law


Hon. David Parker's hit list: the Government's top three priorities for resource management

Last month Hon. David Parker, Minister for the Environment, addressed the Resource Management Law Association with his blueprint for achieving economic growth within environmental limits in New Zealand. The Minister outlined three priority areas: freshwater, climate change and urban development.

Improving freshwater quality (in urban and rural areas) is the Minister's number one priority. Based on previous communications, this does not come as a surprise. The Minister has set the aspiration of having past damage reversed within a generation, and proposes to achieve this with the assistance of a new, comprehensive National Policy Statement on Freshwater Management. In particular, the new National Policy Statement is likely to cover sedimentation, nutrient allocation and land use intensification, as well as a review of existing attributes and implementation deadlines.

On the climate change front, the Government aims to restore New Zealand as a global leader in the fight against climate change. It proposes to tackle this issue in a number of ways:

  • As outlined in our February update, the Government has committed to the introduction of a Zero Carbon Bill this year, which will set a net zero emissions target for 2050 and establish an independent Climate Change Commission. Given that the Commission is not expected to be established until mid-2019, the Government has established an interim Climate Change Committee in May 2018, the membership of which has just been announced last week.  
  • A review of the Emissions Trading Scheme is proposed to ensure it is functioning as an effective carbon pricing tool. This will involve a comprehensive overhaul of the policy settings left behind by the National government.
  • The Government will assist communities to build resilience and adapt to climate change, including by avoiding new development that increases climate change risk (ie development in coastal areas). In particular, the Government is considering elevating the Coastal Hazards and Climate Change Guidance for Local Government document to give it the same weight as a national policy statement or national environmental standard. For further detail on this document, please see our February update here.

The Government has developed a wide-ranging housing and urban development work programme that seeks to (among other things) improve housing affordability, enable growth and create thriving communities. As part of this programme, the Government is committed to the establishment of an Urban Development Authority, which will have special powers to assist with delivering urban development. A Bill enabling the establishment of these authorities may be introduced this year.

In relation to the RMA, the Minister signalled that the RMA is likely to survive another term, though (in expressing some discontent for the recent amendments to the RMA) the Government may reverse a number of the amendments introduced in 2017. A more comprehensive long-term review of the RMA will be considered later in 2018. Although it remains to be seen what amendments (if any) will be made to the RMA, the Minister indicated a need to improve the efficiency of planning processes, while at the same time ensuring that there is still meaningful public participation. While the above initiatives have been signalled previously and do not come as a surprise, they will make for a dynamic term in the resource management space.

A full copy of the Minister's address is available here. Please contact one of our experts if you have any questions about any of the proposals detailed above.

By Allison Arthur-Young and Mike Doesburg  


Cracking the whip on compliance, monitoring and enforcement

As discussed previously in this issue, the Minister for the Environment has confirmed the RMA, while here to stay for now, will be subject to reforms in this term and a longer-term review. One of the areas we expect to see reform is in the compliance, monitoring and enforcement (CME) space.

In our view, one of the reasons the RMA has not performed as well as intended is because of the lack of emphasis historically on CME. Planning processes and consent applications have tended to dominate the headlines. With their limited resources, local and regional authorities have (quite understandably) tended to focus on these "front end" processes, rather than CME at the back end.  

This issue came into focus before the election. Major reports highlighting the current state of CME were issued by the Ministry for the Environment (MfE) in 2016 and the Environmental Defence Society (EDS) in 2017. The Environment Court also issued declarations in March 2017 directing the Horizons Regional Council to enforce certain provisions of its One Plan (Wellington Fish and Game Council v Manawatu-Wanganui Regional Council [2017] NZEnvC 037).

The Labour Party proposed some specific CME reforms in its election manifesto. These were mandating the Audit Office or the Environmental Protection Authority (EPA) to audit councils' CME efforts, and funding either MfE or the EPA to prosecute non-compliances through Crown solicitors. Improving freshwater quality in both rural and urban areas is also a key focus for the new Government (see our reporting here), with the Government's targets being unachievable, in our opinion, without significant investment in CME initiatives. 

It is not clear yet what further reform may be in store in the CME space. What we should expect though, is greater emphasis across the board on compliance with consent conditions and permitted activity rules. Resource users should be preparing now for greater scrutiny from councils and groups like EDS, with an increased likelihood of enforcement action where they are non-compliant. In that regard, MfE is currently preparing best practice guidelines for CME (available here), which we expect consent authorities will follow and which will provide greater national consistency to CME.

In terms of future CME efforts by consent authorities, a particular issue resource users should bear in mind is review conditions on resource consents. Section 128 RMA enables consent authorities to review and amend the conditions of resource consents in certain circumstances. One of those circumstances is where a review is provided for under the conditions of a resource consent.  

Importantly, the power to initiate a review under a review condition is not subject to any substantive statutory restrictions (for example, there does not need to be any change to the relevant planning framework before a review under a review condition can be undertaken). The potential scope of review conditions is also broad – they can be imposed for any purpose specified in the consent conditions, which is limited only by case law that says the purpose must relate to the consented activity's environmental effects. The validity of a broad review condition cannot ordinarily be challenged after the consent has been granted and the appeal period has expired.

The result, in our view, is that with the expected increased emphasis on CME under the new Government, resource users should also expect an increase in reviews initiated under review conditions. For new consent applications or consent renewals, this means applicants should give more focus to the scope of any review conditions and, in the particular, the purpose and circumstances for a review to be undertaken. In our experience, these matters have historically not been a focus for applicants during the consenting process, given reviews have been relatively rare.  With reviews likely to become more common, applicants should be looking to address any issues with proposed review conditions with the consent authority prior to grant of consent, or, where necessary, on appeal.

By Bronwyn Carruthers and Simon Pilkinton


Mussel-ing in: Potential reform in the aquaculture space

With the recent change in Government, it appears that the aquaculture space is another area where a fresh round of reforms is imminent. Promoting regional growth was a key aspect of the coalition agreement between the New Zealand Labour Party and New Zealand First, and aquaculture was recognised as having significant potential to provide for that growth. The industry already contributes over $500 million in revenue each year, with a goal of reaching annual revenue of $1 billion by 2025.  What further reforms designed to achieve that goal may look like is not immediately clear, but both parties went to the polls on a platform of further reform.

New Zealand First's policy at the 2017 general election included a new national coastal policy statement specific to aquaculture. The intended aim was to provide certainty for existing and future farmers, presumably above and beyond the existing Policy 8 in the current NZCPS (which recognises the significant contribution of aquaculture to the social, economic and well-being of people and communities). New Zealand First also promoted a suite of other as-yet-undefined policies to ensure that aquaculture's "immense economic potential" is advanced.

Labour's policy at the election sought to "facilitate the development of aquaculture within clear environmental standards". Labour cited regulatory uncertainty, lack of security, and inconsistent management approaches around the country as key issues to be addressed by further reform. 

Of the two approaches, Labour's "standards" seem most likely to achieve the commonly shared policy direction and address current issues. While national direction in the form of a new national policy statement may be an improvement on the status quo, it would still leave implementation (in the form of methods and rules) to regional councils, with the same potential for inconsistencies between regions. 

One option could be to absorb any changes into the proposed National Environmental Standard for Marine Aquaculture, which is currently sitting with the Government after public consultation closed in August last year. While the proposed National Environmental Standard focused on the impending challenge of renewals for existing farms (many of which are due in 2025) it could potentially expand to cover the regulation of new farming space as well. 

Amendments to the current NZCPS, which has posed problems for applicants for marine farms, are unlikely in the near term. A review by the Department of Conservation released in February this year identified polarised views in relation to the interpretation of the directive policies of the NZCPS in the King Salmon decision, but did not recommend any changes.

Wider use of regulation-making powers in future to provide for aquaculture activities in regional coastal plans is also unlikely. Minister for the Environment David Parker recently said that the regulation-making powers introduced by the National Government over previous terms had gone too far in the wrong direction by removing public participatory rights, and were earmarked for repeal or further reform. In our view, this is an area which could be reviewed as part of the Government's review of the RMA which was foreshadowed at the Minister's recent address to the Resource Management Law Association (discussed previously in this issue).   

By Daniel Minhinnick and Aidan Cameron


One step closer to standardised planning documents:

Draft National Planning Standards set to be publicly notified

In June last year, the Ministry for the Environment released, for public feedback, ten discussion papers on the first set of National Planning Standards (Standards). Following this initial feedback phase, the Ministry has prepared eighteen draft Standards, which have been tested for workability with a number of "pilot councils". 

The draft Standards, which have now been provided to the Minister for the Environment and Minister of Conservation for approval, include (among other things) standards relating to:

  • the structure and form of plans;
  • standardised definitions for 107 terms which are used commonly across plans;
  • electronic accessibility and functionality for plans;
  • zoning; and
  • noise metrics. 

While the Ministry for the Environment has also been exploring the possibility of developing model utility infrastructure provisions, the draft provisions have not progressed to such a point so as to enable such provisions to be included in the first set of Standards. However, the Ministry is likely to continue its work in this area in consultation with infrastructure providers.

Following Ministerial approval, the draft Standards will be notified for public submissions, which is likely to be in late May or early June of this year. As the development of the draft Standards does not include a hearing process, involvement in the submission process will be critical for developers, councils and other parties affected by planning provisions who wish to ensure that they have an opportunity to provide input into the development of the Standards. 

Minister Parker has signalled that the submission period for the development of the Standards will be approximately ten weeks (from June to August this year). A roadshow and hui around the country is expected to take place in the early stages of the submissions phase and workshops on specific topics identified from the submissions process may follow, if required.

Please feel free to get in touch with one of our experts if you would like to discuss the potential implications of the draft Standards further, or the upcoming submission process.

Bronwyn Carruthers and Lauren Eaton


To mine or reserve?:

Rangitira Developments Limited v The Royal Forest and Bird Protection Society Ltd and principles of statutory interpretation

In the recent decision of Rangitira Developments Limited v The Royal Forest and Bird Protection Society Ltd [2018] NZHC 146, Rangitira Developments Limited (Rangitira) sought declarations from the High Court to clarify the ranking between competing legislation that the Buller District Council (Council) must apply when assessing Rangitira's application for access to Te Kuha Mine. Royal Forest and Bird (RFB) was the named Respondent to these proceedings, and the Council was a third party.

These declaration proceedings are distinct from the resource consent application by Stevenson Mining for the Te Kuha Mine. This application was granted and has subsequently been appealed to the Environment Court.

Rangitira sought declarations regarding the Council's obligations to assess Rangitira's application to enter and use the Westport Water Conservation Reserve (the Reserve), which was managed by the Council under the Reserves Act 1977 (Reserves Act), as part of an access arrangement to the Te Kuha Mine (Application). In essence, Rangitira sought clarification that it was appropriate to apply for an access arrangement to Council under s 54 of the Crown Minerals Act 1991 (CMA), on the basis that the provisions of the CMA have primacy over s 23 of the Reserves Act, and therefore, a wider range of matters (including social and economic benefits) are available for the Council to consider when exercising its discretion.

RFB submitted that the Application should instead be made under the Reserves Act, and could only be granted if the Council considered the outcome was consistent with the principle or primary purpose of the reserve, namely for water conservation.

The High Court's finding turned on the interpretation of the wording and history of both the Reserves Act and CMA, and specifically whether s 109(1) of the Reserves Act recognises that the CMA (as the successor to the Mining Act 1971) would have primacy (by virtue of the principle of implied repeal and s 22(2) of the Interpretation Act 1999). The Court's investigation into the legislative background behind the CMA found that Parliament had explicitly provided for the Crown to retain all rights to coal, along with the power to grant coal mining rights over whole or parts of the Reserve. It found that the Reserves Act, which historically was subject to the provisions of the Coal-Mines Act 1925, was also subject to the CMA.

Therefore, the High Court provided declarations that the appropriate provision to apply was under s 54 of the CMA. The Court agreed with counsel for Rangitira that the provisions of the Reserves Act will, subject to the CMA, remain a relevant consideration (alongside other factors such as the economic benefits of the Application).  

In our view, the High Court's decision (on its face) reflects a careful and considered analysis of the legislative background that gave rise to the CMA, and the application of both s 22 of the Interpretation Act 1999 and the principle of implied repeal. RFB's attempt to persuade the High Court to adopt an interpretation that enabled both statutes to be applied, with the Reserves Act taking priority, was not accepted, as the Court felt it was clear from the history behind both Acts here that where an application for access to undertake coal mining was concerned, the CMA has primacy over the Reserves Act. 

RFB has appealed to the Court of Appeal against the High Court's decision out of concern for the precedent that has been set and the effect that this decision may have on the protection of reserves around the country.

By Daniel Minhinnick and Lauren Eaton


This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.

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