Is COVID-19 the culture shift we need to reimagine urban amenity? - Resource Management Journal - Resource Management Law Association
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Resource Management Journal
www.rmla.org.nz
August 2020
Official Journal of the Resource Management Law
Association of New Zealand Inc.
Te Kahui Ture Taiao
Is COVID-19 the culture shift we
need to reimagine urban amenity?
INSIDE
4
4: Is COVID-19 the culture shift
we need to reimagine urban
amenity?
12 16
12: Climate Change Implications
for Local Government of
the Resource Management
16: Possum in the Headlights: An
Audit of Australia’s Biodiversity
Offsetting Conditions and Some
Amendment Act 2020 Lessons for New Zealand
21 25
21: Mediation in the
Environment Court: Do the
Numbers Matter?
25: Case note: Bunnings Ltd v
Auckland Transport [2020]
NZEnvC 92 Joseph Wright
Editorial:
3: Bronwyn Carruthers, Barrister, Shortland Chambers
RESOURCE
www.rmla.org.nz
MANAGEMENT
JOURNAL 3
EDITORIAL
Bronwyn Carruthers, Barrister, Shortland Chambers
It is obviously trite to say that COVID-19 has led to change. compensation to achieve no net loss. Sally Gepp and
One potential change, and the focus of our lead article Madeleine Wright together with Dr Fleur Maseyk and
from Dr Claire Kirman and Emma Fergusson, is in how we Dr Marie Doole have commented on an audit undertaken
evaluate and provide amenity in intensified urban areas. by the Australian Audit office of the approach taken in
The bias towards the status quo has been displaced, Australia and identified a number of significant issues that
with change now accepted as inevitable where growth is have implications for New Zealand. Ideally these mistakes
expected to occur, but at the same time the experience of can be avoided with the NPS expected next year.
lockdown has likely heightened the need to (at a minimum)
Jemma Hollis, an LLB Honours student at the University
maintain amenity at the local level. The challenge of
of Waikato contributes to this issue, with her analysis of
delivering compact urban form with ready access to quality
the time taken to resolve plan appeals looking for a
outdoor space clearly lies ahead.
correlation between the time taken and the number of
On the subject of change, the climate change constraints parties involved. She concludes that mediation directed
in the RMA were removed by 11th hour changes to what by the Environment Court appears to defy group dynamic
is now the Resource Management Amendment Act 2020, theories, with increases in participant numbers not making
with local authorities also required to have regard to the it more difficult to get the job done. The greater use of
emissions reductions plan and national adaptation plans mediation and/or pre-hearing meetings at council level is
expected under the Climate Change Response Act 2002. worth considering going forward.
Blair Dickie discusses the implications of these amendments.
Finally, Joseph Wright, Dentons Kensington Swan,
Staying on the topic of RMA reform, the NPS on summarises Bunnings v Auckland Transport, considering
Indigenous Biological Diversity is expected to be what happens to the lapse period of an unimplemented
released in April 2021, formalising the use of offsets and designation when it is rolled over as part of a plan review.
RESOURCE
www.rmla.org.nz
MANAGEMENT
4 JOURNAL
Is COVID-19 the culture
shift we need to reimagine
urban amenity?
THE IMPETUS FOR THE RE-EVALUATION OF
AMENITY
The COVID-19 lockdown period saw many New Zealanders
develop new relationships with how they live, play and
work within urban environments. Whilst it is unknown at
this stage how the pandemic and the attendant economic
downturn will impact on the housing system, given the
lengthy time horizon of planning instruments, this paper Authors:
posits that it is unlikely that the pandemic will have any Dr Claire Kirman,
sustained impact on the fundamentals of how we should Special Counsel –
plan future urban environments. What is likely, however, Urban Development and
Dr Emma Fergusson,
is that it will generate sustained changes to the amenity Principal Advisor, Kāinga Ora –
values that communities consider important within the Homes and Communities
compact urban form model, which will have implications
for how different housing typologies are delivered and the
preferences for quality outdoor and local public spaces a maintenance of the status quo. Earlier cases under the
within those typologies. Town and Country Planning Act 1977, for example, had the
effect of limiting the inquiry as to the effects on amenity to a
THE ‘AMENITY VALUES’ PROBLEMATIC consideration of whether or not “the proposed use is likely
Even before COVID-19, the interpretation of the terms to have a detrimental effect on the existing amenities of the
‘amenity’ and ‘amenity values in Resource Management area”. This had then spilt into statutory understandings of
Act 1991 (RMA) jurisprudence and the propensity towards the concept under the RMA (Reids Holiday Park v Rangiora
protection of the status quo was problematic. Case law had Borough [1979] D B13332(A); see also Storer v Erye County
inadvertently cast the consideration of amenity as being [1980] 7 NZTPA 268).
RESOURCE
www.rmla.org.nz
MANAGEMENT
JOURNAL 5
Indeed, this shortcoming in the legislation and its proposed National Policy Statement – Urban Development
implementation was alluded to in the Opportunities (2020) (NPS-UD), for example, viewed the statutory
for Change: Issues and Options paper released in conception of amenity as disenabling of flexible growth and
November 2019 by the Resource Management Review the development of quality urban environments. Specifically,
Panel, whom were tasked with considering the opportunities the Beca Report Enabling Growth – Urban Zones Research:
for reform of the RMA. Specifically, that paper made the Key Observations, Findings and Recommendations
following observations regarding the innate bias towards (August 2018) concluded (at 2):
the status quo in the current system ([35–36]):
the barriers to facilitating development appear to
A bias towards the status quo be from the emphasis local authorities put on the
Decisions made through the resource management ‘present state’ and built form of amenity, rather
system have favoured existing users and uses, and than any future environment that would result in an
as a result have inadequately provided for future area, and the social and physical infrastructure parts
generations, as well as poorer communities and of amenity.
iwi/Māori. Problems that have exacerbated this bias
As such, (as notified) the NPS-UD included a proposal
include:
which established higher order planning directives which
• an emphasis of the RMA on avoiding or emphasised that amenity values can change over time and
remedying adverse effects that urban development offers opportunities for changes
• the protection of use rights, for example in to amenity which can better support communities and their
relation to land use planning and the right to values. The policy intent of such a proposal was to shift the
take water widely held perception that urban development has only
• processes (eg, legal appeals) that favour the negative effects on amenity for individuals.
well-resourced
• the application of ‘permitted baselines’ in CONTEXT SETTING – THE AUCKLAND UNITARY
resource consent processes. PLAN AS A MODEL FOR CHANGING THE WAY
AMENITY IS CONSIDERED
Furthermore, until recently there has been
insufficient recognition of the importance of The promulgation of the Auckland Unitary Plan in 2016
proactive and strategic planning in the system. signalled what the Independent Hearings Panel described in
Over the last decade, some councils have its Overview Report as a “large step-change” in the planning
developed strategic plans and joint spatial plans for urban development capacity, creating the establishment
for their regions, districts and communities to help of a planning pathway for the ongoing long-term supply of
fill this gap. Central government has encouraged residential, business and industrial capacity in the Auckland
this form of planning by requiring Auckland Region (Auckland Unitary Plan Independent Hearings Panel
to prepare a spatial plan, future development Report to Auckland Council Overview of recommendations
strategies through the National Policy Statement on the proposed Auckland Unitary Plan (Auckland Council,
for Urban Development Capacity, and spatial 22 July 2016)). Against significant community opposition,
planning partnerships under the Urban Growth the Auckland Unitary Plan introduced what in the
Agenda. However, the lack of legal weight and New Zealand planning context must be considered to be a
disconnection with RMA plans means that the full novel response to urban development capacity: the removal
benefits of strategic planning are not being realised of density requirements and the introduction of region-wide
throughout the system. graduated intensification around both existing and planned
centres, transport nodes and corridors. The Overview
Prior to the Resource Management Review Panel’s
Report went on to set out the Independent Hearing Panel’s
identification of the statutory conceptualisation of amenity
recommended blueprint for dealing with the provision of
and how it was inadvertently acting as a roadblock to future
capacity:
urban development, the amenity problem had already been
earmarked in the Urban Growth Agenda as a matter requiring
urgent redress. The discussion documents supporting the Continued
RESOURCE
www.rmla.org.nz
MANAGEMENT
6 JOURNAL
(i) utilising several planning methods for greenfield The application was declined at council hearing stage on
development and brownfield redevelopment, thereby the basis of the adverse impact the scale and height of the
providing flexibility in the way the region could respond development had on the amenity of the area.
to growth; and
Summerset appealed the Council’s decision to the
(ii) introducing planning controls that most appropriately Environment Court, but for the purposes of the Environment
enable growth, whilst balancing the protection of Court Hearing, revised the application so that the
existing values in significant areas and items of development took a more tiered or stacked approach
natural and historical heritage and of ecological value, to bulk approach when viewed from within the adjacent
the taonga held closely by mana whenua, volcanic Mixed-Housing Suburban (MHS) area surrounding the east
viewshafts and the maunga themselves, air and water and north of the site.
quality, the natural character of the coastal environment,
In granting the appeal, the Environment Court held (at [80]):
and the special character of many places.
We have reached the view that the consent as
The timing of the Auckland Unitary Plan was critical to
now proposed by the applicant is appropriate and
achieving this outcome. The hearing of submissions
properly balances the interests of intensification
came at a time when there was a growing awareness of a
with the need for compatibility with the residential
significant housing supply issue, leading the Independent
environment and impacts on visual amenity. Overall,
Hearing Panel to record in the opening to its Overview
we are satisfied that the activity constitutes an urban
Report that the current resource management issue of
built character of predominantly three-storeys and
greatest significance facing the Auckland Region was its
therefore meets the policy of the Plan and other
capacity for growth.
policies and objectives of the Plan generally.
Indeed, as the hearings on the Auckland Unitary Plan
Importantly, the Environment Court made several key
progressed, the Government was to notify the first national
observations regarding how the NPS-UDC (referred to in
direction on urban development – the National Policy
the decision as the UPS) and the Auckland Unitary Plan
Statement: Urban Development Capacity (2016) (NPS-UDC).
should be interpreted. In summary, the Court concluded
Whilst that national direction did not play a part in the
that (at [17–18]):
outcome for the Auckland Unitary Plan, it required that
local authorities throughout the country follow in Auckland’s Both the National Policy Statement Urban
footsteps by introducing new national planning requirements Development (Urban Policy or UPS) and the
for local authority responses to urban development capacity AUP stress compact urban form in the context of
issues in the short, medium and long term. the existing urban areas requires intensification.
This Site is appropriate for such intensification
The relatively recent decision of Summerset Villages
for integrated residential development and in
(St Johns) Limited v Auckland Council [2019] NZEnvC 173
particular for a retirement village …
illustrates that with a more innovative planning instrument
such as the Auckland Unitary Plan and with effective Fundamentally we do not accept the proposition
national direction, there is scope even within the existing that the change envisaged under the UPS and AUP
framework to recast the concept of amenity. can be countermanded by reference to the existing
residential amenity without a reference to the plan
By way of background, that case involved an appeal by
changes that are envisaged in terms of the UPS and
Summerset Villages (St Johns) Ltd relating to an application
AUP. To determine the residential character without
to establish a retirement village on a 2.6-hectare site
reference to the UPS and the AUP would be a failure
adjacent to St Johns College in Meadowbank. Pursuant to
to properly administer both the Unitary Plan and
the Auckland Unitary Plan, the bulk of the site was zoned
the Policy Statement in terms of the requirements
Mixed Housing Urban (MHU) and the application fell to be
under s 104.
considered as an integrated residential development.
RESOURCE
www.rmla.org.nz
MANAGEMENT
JOURNAL 7
The Court also made several important observations “H5.1 Zone Description
regarding how decision-makers should approach the task
The Residential – Mixed Housing Urban Zone is a
of interpreting and implementing the Auckland Unitary
reasonably high-intensity zone enabling a greater
Plan, noting that the tenor of the Auckland Unitary Plan
intensity of development than previously provided
was to promote a compact urban form in the context of
for.
existing urban areas requiring future intensification (at [52]):
Over time, the appearance of neighbourhoods within
… However, we conclude that the apparent and
this zone will change, with development typically up
perceptible thrust of the AUP undeniably embraces
to three storeys in a variety of sizes and forms …”
the philosophy of the UPS: namely a focus on
enabled outcomes for intensification rather than We conclude that this aspiration creates a context
the more conventional and traditional preservation that invites the exercise of development ambitions
of amenity as defined and circumscribed by now- that are in step with the direction of the UPS as
superseded planning instruments. well as confirming an environment more tolerant
towards growth and change. As an affirmation
And earlier in the decision (at [33–34]):
of this encouragement, the zone objectives
… Compatibility does not mean similarity. particularise the vision and provide clear guidance
in respect of intended outcomes (emphasis added):
Our conclusion is that the proper meaning of the
AUP wording as to compatibility is that there must “H5.2 Objectives
be some features of the development allowing the
(1) Land near the Business-Metropolitan Centre
residential and MHU zones to interact and relate to
Zone and the Business-Town Centre Zone,
one another.
high-density residential areas and close to the
In that regard, the Court was critical of the Council’s public transport network is efficiently used for
witnesses who had focused more on existing residential higher density residential living and to provide
amenity and the surrounding area in its current form rather urban living that increases housing capacity
than the future form brought about by the Auckland Unitary and choice and access to public transport.
Plan and required by the NPS-UDC, noting with respect to
(2) Development is in keeping with the
that approach (at [32]):
neighbourhood’s planned urban built character
If this is to be the outcome of the application of of predominantly three-storey buildings, in
these two criteria, we conclude that it must be seen a variety of forms and surrounded by open
as direct contravention of the imperatives of the space.”
UPS and of the AUP to achieve a compact urban
…
form and in particular the intensification along
public transport corridors envisaged and reflected This range of opportunities is encapsulated
in the zoning of this Site as MHU and the zoning and given validity in terms of the anticipated,
along St Johns Road and Remuera Road of both future, urban environment as foreshadowed in
terraced housing and buildings. the objectives set out above and, in particular,
articulated in Objective H5.2(2). The term used
Also of interest are the following comments regarding the
to describe the resultant physical manifestation of
focus of the MHU zone (at [58]–[59] and [61]–[62]):
development that may emerge pursuant to the
Firstly, the flavour of the zone is established by the provisions is “predominantly”. (Emphasis original)
zone description and its unequivocal articulation
of change and the resultant creation of a new
paradigm of urban growth (emphasis added):
Continued
RESOURCE
www.rmla.org.nz
MANAGEMENT
8 JOURNAL
The Court heard much on the matter of Applying the criteria as suggested by the Council
“predominantly” and the meaning, if not the leads to our conclusion that this is an acceptable
essence, of the word. It was a matter of some amended proposal. Thus, it is not necessary for us
tightly-held views as to its meaning and relative to consider the wider issues. We comment that
importance. The Court is confident that this term the application of the AUP and UPS cannot be
was used in the AUP quite deliberately. There is viewed in the context of only allowing activities
a deliberateness and flexibility to the word. This that are similar to or the same as existing
means the concept is in fact contextual to allow residential character and adjacent zones. In our
robust and pragmatic assessment on individual view, that would be an incorrect application of
applications for consent. the provisions and arguably may undermine
the very purpose of the AUP and the UPS. This
With regards to the NPS-UDC, the Court noted that it was
decision cannot be taken as an endorsement of the
a planning instrument that was at the top of the planning
Council’s approach to these provisions generally
hierarchy and required due consideration by decision-
or even in this case. What it demonstrates is that
makers when establishing policy frameworks on matters of
the amended application is clearly appropriate and
urban growth and redevelopment (at [44]). Specifically, the
anticipated in this zone.
Court noted the future focus of the NPS-UDC, commenting
(at [46], [49] and [50]): Given we reach our conclusions in the absence of
having to decide this point, we comment only for
At this point, we recognise the use of critical
the purpose of guidance for the future. Clearly, the
language in these provisions of the UPS.
Auckland Plan anticipates future change. That is not
Deliberately, it seems to us, the authors of the
only evident in the Plan but is explicitly stated in
document have deployed the words ‘change’ and
the preamble to the Auckland Unitary Plan. In the
‘future’. Unarguably, the use of these terms intends
initial stage, such changes, particularly within or
a future focus for development planning.
adjacent to residential zones, will be unsettling
… for existing residential owners. To this extent, we
There is a clear commonality of purpose and understand the concerns that have been expressed
principle to be found, on the one hand, in the by Mrs Ngata and others at the original hearing.
theme of the UPS, set out above, and, on the other, There is no doubt that the degree of intensification
in the particular thrust of the OA3: ‘change’. In our envisaged within the Plan is significant. It will
view, the inescapable conclusion in apparent: the bring with it impacts in terms of the construction
UPS gives direction to decision-makers to have periods which are now evident through Auckland
regard to urban growth outcomes which have central and beginning to radiate into the suburbs.
previously been under-emphasised in favour of (Emphasis added)
local environmental or amenity considerations. This case is important not only because it records the
The UPS requires evaluation in the context of ‘national future focus of amenity values incorporated into both the
significance’ within which planning endeavours NPS-UDC and Auckland Unitary Plan, but also because it is
are to be undertaken and which will allow ‘(urban) a current example of a departure from the Court’s traditional
environments to develop and change’. Accordingly, approach to consideration of amenity effects within the
our conclusion is that a more future-oriented, existing statutory framework (namely that consideration of
outcome-focused conclusion than what might adverse effects on amenity values is confined to an inquiry
have been the case otherwise and common-place as to the potential adverse effect on the existing amenities of
before the promulgation of the UPS is envisaged. an area, rather than the planned future amenities). Indeed,
(Emphasis added) recognition that amenity values develop and change
over time is now explicitly recognised in the NPS-UD with
In conclusion, the Court held that the amended Objective 4. Further, Policy 4 requires that when making
development was appropriate in terms of the Auckland planning decisions that affect urban environments, decision-
Unitary Plan stating that (at [66]–[67]):
RESOURCE
www.rmla.org.nz
MANAGEMENT
JOURNAL 9
makers have particular regard to the fact that changes to Susan Edmunds “Property market: were predictions of
planned urban built forms may detract from the amenity doom misplaced?” (14 July 2020) Stuff ;
values appreciated by some people, but will improve the “House prices rise again but economists expect correction”
amenity values appreciated by other people, communities Otago Daily Times (online ed, Dunedin, 14 July 2020)).
and future generations, including by providing increased
Currently New Zealand has about 5,000 people a week
and varied housing densities and types. Policy 4 goes
returning to New Zealand from other countries and very
even further to state that such amenity changes are not, of
few New Zealanders are departing – to put this in context,
themselves, an adverse effect.
we would typically have a net loss of 10,000 to 15,000
New Zealanders per annum through out-migration. These
COVID-19 AND ITS POTENTIAL INFLUENCES ON
people may be here permanently, or at least until the
THE HOUSING MARKET
global situation stabilises, and they will need places to
Turning now to the potential influences of the pandemic on live. For now, this influx will be partly mitigating the impact
the local housing system; whilst the actual impact may not of New Zealand’s border closure and international travel
be known for some time, discussions thus far have largely restrictions more generally, which have effectively curtailed
focused on house price effects. international immigration at present. When the arrivals of
There is considerable variance in the predicted scale and returning New Zealanders slows down, we may well see
timing of a market shift, but there seems to be consensus reduced net in-migration over the medium term, and
among economists that a significant drop in house values is this will reduce pressure on housing supply. It has been
on the horizon (for a summary, see Susan Edmunds “What’s noted, however, that New Zealand’s comparative success
really going to happen with New Zealand’s house prices?” in addressing COVID-19 may also make the country an
(28 June 2020) Stuff ). A combination of attractive prospect for potential migrants when the border
distressed sellers, a smaller number of potential purchasers does reopen.
and general wariness in the face of rising unemployment The rental sector, too, is likely to face changes in the
and market instability is expected to result in house price context of COVID-19, and these will have further flow-
drops of between five and 15 per cent over the next 12 to on effects on house prices. Prior to the pandemic, there
18 months. To put this in perspective, the Global Financial were approximately 37,000 short-term rentals marketed
Crisis of 2008 resulted in a national drop of around eight through websites such as Airbnb to both domestic and
per cent but over a longer period. international travellers. While domestic tourism is being
Although the post-lockdown market has seen only a promoted as a fillip for the struggling tourism sector now
1.5 per cent drop on pre-lockdown values, this may well that travel internally is possible again, it seems unlikely
be the calm before the storm. Indeed, CoreLogic have that the volume will be sufficient to fill short-term rentals
noted that in the main centres and holiday destinations, as well as more established accommodation facilities such
prices have already declined significantly: Auckland is down as motels and hotels if the border closure continues for
2.4 per cent and Queenstown 7.2 per cent (Greg Ninness many months. The potential for these dwellings to be
“The worm seems to have turned for property values in shifted into the long-term rental market is significant, and
the main centres” (16 July 2020) Interest.co.nz). It is widely this could relieve rental supply issues in some areas and
expected that when the buffering effects of the wage put downward pressure on rents.
subsidy scheme and the mortgage repayment holiday
RE-CONCEPTUALISING AMENITY VALUES IN THE
recede, and as the predicted recession deepens, there will
URBAN DEVELOPMENT CONTEXT
be a significant increase in properties brought to the market
by vendors facing financial pressure. The relative buoyancy The urban efficiencies of a spatial pattern of capacity based
of the market at present is attributable to a combination of on a compact urban form mean that urban development,
pent-up demand and limited supply, as potential vendors which intensifies around centres and transport nodes and
respond warily to market uncertainty (see, for example, corridors, will in the authors’ view still continue to be
Anne Gibson “Economists question house market rally” The
New Zealand Herald (online ed, Auckland, 14 July 2020);
Continued
RESOURCE
www.rmla.org.nz
MANAGEMENT
10 JOURNAL
a prerequisite to the efficient and effective functioning At the time of writing this paper, the Resource Management
of urban environments, including public transport and Review Panel had not released its system reform
other significant infrastructure. Whilst that model for recommendations, but the Urban Development Act 2020
urban development is unlikely to change as a result of the can be seen as a likely indicator of the potential change
pandemic, arguably, delivery of the Terrace Housing and in store, albeit with the potential for slightly different
Apartment Buildings (THAB) typology by developers might terminology. In that regard, the Urban Development Act
need to be reconsidered to accommodate new ways of modifies the application of the definition of amenity in
utilising housing (for example, increased demands to work Part 2 of the RMA by introducing the concept that urban
from home necessitating office space within dwellings or amenity may change over time. This involved specifically
communal office spaces in THAB typologies). recording that in promoting sustainable management of
natural and physical resources, recognition must be given
Acknowledging that future amenity values are an important
to the fact that amenity values may change (Refer to s 5 of
consideration in any urban development proposal,
the Act).
COVID-19 has seen a shift in people’s housing and outdoor
living preferences and, as a consequence, neighbourhood In a similar vein, Objective 4 of the NPS-UD provides
amenity. Such shifts are not unexpected as historically that “New Zealand’s urban environments, including their
global pandemics have resulted in lasting changes to amenity values, develop and change over time in response
urban growth patterns. As Kyle Chayka suggests, the to the diverse and changing needs of people, communities
experiences of isolating in place, working from home, and and future generations”. Policy 4 further requires that when
having one’s sphere of activity reduced to one’s immediate making planning decisions that affect urban environments,
neighbourhood is likely to change understandings of home, decision-makers have particular regard to the matter that
and shape what people look for in a dwelling, along with planned urban-built forms may involve significant changes
changes to the importance and requirements of outdoor to an area, and those changes may detract from the amenity
and local public spaces (Kyle Chayka “How the coronavirus values appreciated by some people but improve the
will reshape architecture” The New Yorker (online ed, amenity values appreciated by other people, communities
New York, June 17 2020)). This, therefore, may be an aspect and future generations, including by providing increased
of the delivery of urban development planning that may and varied housing densities and types, and are not, of
be permanently changed by people’s experiences of the themselves, an adverse effect.
COVID-19 pandemic.
CONCLUDING REMARKS
Historically, New Zealanders have also been wary of
denser residential typologies, and reports from Australia Since the introduction of the NPS-UDC in 2016, there has
and elsewhere of the rampant spread of the virus been a wave of plan changes and plan reviews notified
through “vertical cruise ships” may harden these views throughout the country with the objective of addressing
(Yara Murray-Athfield “Why Melbourne’s public housing intensification and growth issues. As these plan reviews
towers have ‘explosive potential’ for coronavirus to spread” and plan changes continue through the statutory process,
(5 July 2020) ABC News ; Katrina Raynor, and in light of the recently gazetted replacement national
Alan Pert and Catherine Townsend “Vertical cruise ships? direction on urban development, the NPS-UD, the question
Here’s how we can remake housing towers to be safer and now exists as to whether or not the COVID-19 pandemic
better places to live” (15 July 2020) The Conversation and the ensuing economic downturn should impact on and
). Such perceptions may be change our response to urban development in New Zealand
difficult to change, however, more dense typologies are in the long term.
still capable of delivery as part of a resilient urban form Given the long-term horizons of planning instruments, it is
if they are undertaken in a manner which is cognisant of the view of the authors that the pandemic is unlikely to have
the socio-economic and psychological perspectives of any sustained impact on the fundamentals of how we plan
people and communities, and if the design principles future urban environments, but may change the amenity
incorporated into such typologies respond appropriately values that communities consider important both in terms
to those perspectives. of how different housing typologies are delivered and theRESOURCE
www.rmla.org.nz
MANAGEMENT
JOURNAL 11
preference for quality outdoor and local public spaces generally has an economic life of at least 50 years,
within those typologies. In that regard, the comments of so that once an area is developed according to
the Independent Hearings Panel regarding the need for an existing land use plan, future plan changes
long-term resilience in any urban development model to that area are unlikely to have any effect on
adopted are apposite both to this context, as well as in capacity until it once again becomes economic for
relation to the approach taken in the development of the redevelopment. Thus is important that the Unitary
Auckland Unitary Plan (at 51): Plan is calibrated to demand over the long term,
and not to just immediate concerns.
There are compelling reasons to ensure the
Unitary Plan enables a development pattern Note: The views expressed in this paper are those of the
that is capable of meeting residential demand authors and not Kāinga Ora – Homes and Communities.
over the long term and does not limit its focus The authors would also like to acknowledge the helpful
to just the next ten years or so. The first is that comments received from Jessica Phillips, Ministry for the
housing development is not readily reversible and Environment.
“Rethinking Resources: The district has developed a brand that
embraces its longstanding reliance on
RMLA Rotorua 2021!” cultural and geothermal resources together
with the development of significant tourism,
Our 2021 conference aims to celebrate agriculture, energy and forestry initiatives that
the continued and evolving relevance of have all flourished under the umbrella of the
Resource Management Law in the sustainable RMA. This conference will canvass the many
management of natural and physical resources. and varied ways in which rethinking resources
can result in revitalisation of a community for
We collectively operate within a culturally, local, regional and national benefit.
physically, ecologically and socially dynamic
setting that requires agile thought in order to Tūngia te ururoa kia tupu whakaritorito te
meet the varied present and foreseeable needs tutū o te harakeke.
of the environment and our communities. In order to change we must be prepared to
Rotorua demonstrates rethinking of resources do things differently.
in a very tangible way.
www.rmla.org.nzRESOURCE
www.rmla.org.nz
MANAGEMENT
12 JOURNAL
Climate Change Implications for
Local Government of the Resource
Management Amendment Act 2020
SUMMARY
This note outlines the recent climate-change-related
amendments to the Resource Management Act 1991
(RMA) and discusses the implications of these changes
for existing arrangements and for local government Author:
implementation agencies. It notes that the repealed Blair Dickie,
Climate Change
sections will possibly have the most effect and will target Knowledge Hub Leader
regional councils’ consideration of discharge applications
from point sources, with little effect on emissions from land
use changes. The additions relating to considerations for Act 2004. Regional consent authorities were expressly
policy statements and plans confirm existing requirements, prevented from addressing greenhouse gas emissions as a
but by being explicit, provide much needed linkages contaminant to the environment.
between legislation and co-ordination between central
This position was intended to prevent “double jeopardy”
and local government.
situations arising from the joint imposition of regulatory and
financial controls on the same activity, since, at the time,
BACKGROUND
there was no integrating climate mitigation plan to align
The RMA is constantly being amended, reformed and the financial and regulatory levers operated by central and
added to, and in some cases elements are repealed. local government respectively. Additionally, the financial
In 2004, following the enactment of the Climate Change levers were rendered ineffective for almost a decade
Response Act 2002 (CCRA), and with the expectation that, though amendments to the CCRA in the wake of the
in future, greenhouse gas emissions would be managed Global Financial Crisis. As a result, both central and local
by central government through a financial mechanism, government were left powerless to influence development
changes were made to the RMA as part of the Resource decisions, and greenhouse gas emissions increased.
Management (Energy and Climate Change) AmendmentRESOURCE
www.rmla.org.nz
MANAGEMENT
JOURNAL 13
The recent RMA reforms have focused on process elements already in force (from 30 June 2020). This is an astute move
and freshwater management, but at the 11th hour changes as it effectively prevents a rush of entities seeking regulatory
were made that will have a bearing on the way the RMA approvals for large high-carbon-emitting activities in the
addresses climate change, and the role of those agencies interim.
administering it.
EXISTING SITUATION
CHANGES
It is worthwhile noting the current requirements of the RMA
There are seven sections in the Resource Management with respect to climate change so that the implications of
Amendment Act 2020 creating two changes. The first the recent changes can be explored. The RMA already
change removes constraints on the ability to treat provides clear direction for decision-making concerning
greenhouse gases as a contaminant. Two sections of the the allocation of natural resources, the location and
parent Act (ss 70A and 104E) that specifically excluded construction of physical resources and the allocation of
the consideration of greenhouse gas discharges to air in space in both terrestrial and coastal marine areas with
relation to climate change have been repealed. This has respect to climate change adaptation. This comes from pt 2
been achieved by amending ss 19 and 35. Additionally s 7(i) and is reinforced by the New Zealand Coastal Policy
ss 20 and 36 repeal ss 70B and 104F, which are exceptions Statement 2010 with respect to coastal developments
to the primary sections and therefore no longer relevant. (Policies 24, 25 and 27, covering natural hazards and sea
level rise more than 100 years out), and the National Policy
The second change creates alignment between central
Statement for Freshwater Management (NPSFM) requiring
government’s (in development) national climate change
regional councils to consider the reasonably foreseeable
plans for emissions reductions and adaptation, and local
effects of climate change when setting objectives for
government’s RMA policy statements and plans.
quality and quantity in each Freshwater Management Unit
These changes have been made through ss 17, 18 and (Policies A1 and B1). This will change with the latest version
21, which insert the following wording into s 61 (Matters of the NPSFM to come into force later this year, referring
to be considered by regional council (policy statements)), to setting target attribute states, but still only relating to
s 66 (Matters to be considered by regional council (plans)), adaptation.
and s 74 (Matters to be considered by territorial authority)
Climate mitigation in the context of emissions reductions or
when preparing or changing policy statements and plans.
biological offsets are not specifically covered in the RMA.
Amongst other things the authority must have regard to:
The benefits to be derived from the use and development
• any emissions reductions plan made in accordance with of renewable energy is included in pt 2 s 7(j) and is
s 5ZI of the Climate Change Response Act 2002; and supported by the National Policy Statement for Renewable
• any national adaptation plan made in accordance with Electricity Generation. These provisions can be considered
s 5ZS of the Climate Change Response Act 2002. as supporting greenhouse gas emissions reductions, but
only insofar as fossil fuels are replaced by renewable natural
These changes come into force at various times. resources containing energy. Reducing emissions does not
The repealed sections that allow consideration of appear to be the primary purpose of these; rather climate
greenhouse gas emissions and the requirement for councils mitigation can be considered a co-benefit.
to have regard to central government’s emissions reduction
plans and national adaptation plan do not come into force A proposed National Policy Statement for Indigenous
until the end of next year (31 December 2021). This will Biodiversity (Ministry for the Environment, November 2019
ensure that the national instruments have been completed ME 1472) does include reference to both climate adaptation
and are in effect. and mitigation in policies and proposed implementation
mechanisms. The objectives are to maintain and restore
By contrast the requirement that a Board of Inquiry or
the Environment Court must “take into account” climate
change, when a matter is called in as a matter of national
significance on the basis of its greenhouse gas emissions, is ContinuedRESOURCE
www.rmla.org.nz
MANAGEMENT
14 JOURNAL
indigenous biodiversity, and there is recognition that the Currently, not all greenhouse gas discharges are covered
future climate will be different. Proposed Policy 3 focusses by the Emissions Trading Scheme (for example, fugitive
on the resilience of indigenous biodiversity to the effects emissions from land use change are not), but it is starting
of climate change (adaptation), and proposed Policy 14 to influence land use change with respect to afforestation.
requires the development of regional scale biodiversity At the current price of around $32/tonne, carbon farming
strategies. It is this policy that brings together the need to has increased but the price is considered insufficient to
promote resilience to a changing climate by among other transition remaining high carbon electricity generation
things maintaining and promoting connectivity between or change transport fuels (“NZUs Firm – But What does
habitats to allow species migrations in response to climate $32 Do?” Carbon Match, 30 June 2020) and to drive
change (adaptation) and to also recognise and consider the economic transformation to low-carbon activities.
promoting landscape-scale restorations for co-benefits Something else will be required. Will this be the RMA and
including for water quality and freshwater habitats, carbon is this what the changes have set up?
sequestration (mitigation) and hazard mitigation.
Changes to ss 61, 66 and 74 are additional to the existing
requirement in the same sections for regional and
IMPLICATIONS FOR LOCAL GOVERNMENT
territorial authorities to have regard to any management
The two key changes identified are discussed starting plans and strategies prepared under other Acts. It would
with the opportunity for councils to consider discharges of seem that the new provisions merely reinforce what could
greenhouse gases to air. be expected to occur, as the existing requirement is
At first glance, this may seem to be limited to regional not limited in scope and the direction to agencies is to
councils and unitary authorities, having the control of “have regard”, meaning to “have a look” – the weakest
point source discharges to the environment. However, requirement for consideration, in contrast to the “give
certain land uses can contribute to an increased release effect to” relationship between regional policy statements
of greenhouse gas emissions (coal mining, mining or and plans.
drainage of peat soils for agriculture, location and design The additional requirement for this consideration reinforces
of subdivisions and developments that potentially lock the relationship between central government plans
people into high carbon lifestyles) as diffuse discharges. and strategies and makes explicit the link between the
However, control of these emissions is not a regional government’s climate change directions for both adaptation
function. There is no equivalent to s 30 of the RMA, which and mitigation and all levels of RMA policy and plans. An
allows regional councils to manage the diffuse impacts of element of urgency has been injected into the process with
land use on water quality. Therefore, diffuse greenhouse the clear message that climate change matters addressed
gas emissions would be more appropriately covered by by central government are to be considered by local
territorial authorities in their district plans under s 31 as government when reviewing and changing RMA policy
an effect of the use of land. A further complication is that statements and plans. This is additional to the existing
land use derived greenhouse gas emissions would only trickle-down relationship between policy statements
be regulated (require a resource consent) if the relevant and plans that can create delays through sequencing of
district plan addressed the matter and required it. individual reviews and changes.
The change removes a barrier and opens the opportunity The current hierarchical relationship of local government
up for both regulatory and financial policy levers to address plans creates the opportunity to regionalise national
greenhouse gas emissions. Without seeing the policy directions by providing two stages for sub-national
design of the national emissions reduction plan there is interpretation. This occurs with the design of regional
no way of knowing which lever should be applied and for policies and then the crafting of regional and district rules.
what type of discharge. Within the RMA sphere, diffuse The direct relationship to all local government policy and
discharges of greenhouse gases emanating from land use plans required by this amendment not only has the potential
can only be addressed through district plans, should the to create faster subordinate policy and rules but may also
relevant authority give itself that function, whereas point improve consistency between central direction and local
source discharges will be a regional council role. implementation. This design may have real advantagesRESOURCE
www.rmla.org.nz
MANAGEMENT
JOURNAL 15
for emissions reductions which are sector-based (not so surface would seem to be one way – the RMA regulatory
geographically determined), but these may not be as clear instruments are to have regard to the national direction.
for adaptation responses where the local cross-function The opportunity exists for the national emissions reduction
alignment role of Regional Policy Statements will be critical. plan to do more than signal direction and the central
government role, by also creating an integrating role and
CONCLUSION identifying ways local government’s RMA polices and plans
Given that climate change adaptation is clearly identified can contribute to the national effort. This will enhance the
as a primary consideration when exercising powers and ability of local government (at all levels) to have regard to
functions under the RMA (in pt 2) and greenhouse gas the plan as required by the amendment.
emission reductions are not (not mentioned in pt 2), it A similar opportunity exists in the climate adaptation
is reasonable to consider that the relationship between space, only in this area there is a paucity of policy
RMA policies and plans may be different for each climate levers, currently limited to regulations applied by local
change response. This asymmetry is further compounded government under the RMA. In this situation we are not
by the fact that central government has recently updated talking of policy alignment – we need more tools to do
and strengthened the settings of the Emissions Trading the job. The opportunity exists for central government to
Scheme (mitigation) and to date has not created for itself not only identify national priorities for adaptation efforts
alternative policy levers for national adaptation. such as critical strategic infrastructure, but also to create
With the “have regard to” relationship between central financial mechanisms and consistent national messaging
and local government policies and plans it would seem that will allow community and land use transformations.
that the intention is to bring the policy levers and the This would assist resilience to projected climate impacts
agencies together, potentially for local government (RMA) and help to identify alignment opportunities for local
to support the central government (CCRA) direction for regulatory support.
emissions reductions and that central government will Only time will tell if this is the direction that central
rely on local government to address adaptation matters government will pursue in its design of the National
as these will play out locally and differentially across the Emissions Reduction Plan and the National Adaptation
country. This type of issue is ideally suited to regional-scale Plan. The RMA changes discussed may, on the surface,
spatial planning. seem in isolation to merely reinforce the status quo, but
Effective policy implementation requires many things to depending upon the policy design of emerging national
go right including the alignment of public policy levers. instruments they may prove to be valuable additions, at
This is often difficult when the responsible agencies have least until the wider RMA reforms.
different foci (international/national and regional/local), Note: The author is employed by the Waikato Regional
capacity and resources. This amendment has created Council as Principal Strategic Advisor. Views expressed in
the links between financial and regulatory policy levers this note are those of the author and are in no way to be
for emissions reductions, but it is a weak one and on the interpreted as representing a position of that Council.RESOURCE
www.rmla.org.nz
MANAGEMENT
16 JOURNAL
Possum in the Headlights:
An Audit of Australia’s Biodiversity
Offsetting Conditions and Some
Lessons for New Zealand
INTRODUCTION
The Australian Government’s Department of Agriculture,
Water, and the Environment (DAWE) has just been grilled
by the Australian National Audit Office (Report No 47 2019)
(Audit) for its approach to managing biodiversity offsetting.
The Audit focused on assessment, approval, monitoring
Authors:
and enforcement of offset conditions attached to approvals
for activities affecting matters of national environmental
significance under the Environment Protection and
Sally Gepp, Barrister;
Biodiversity Conservation Act 1999 (EPBC Act).
New Zealand’s experience with biodiversity offsetting and Madeleine Wright, Senior
Associate, Berry Simons;
environmental compensation has been variable. With the
use of offsets and compensation set to become formalised Dr Fleur Maseyk, Practice
when the National Policy Statement for Indigenous Biological Leader – Conservation
Diversity (NPSIB) is released (likely April 2021), the Audit Science at The Catalyst
provides an opportunity to learn from Australia’s mistakes Group; and
and avoid some of the most serious outcomes that result
Dr Marie Doole, Practice
from poor exchanges and poor implementation (including Leader – Policy at The
non-compliance with consent conditions). A New Zealand Catalyst Group
audit of current practice may also be warranted.
THE AUSTRALIAN CONTEXT
The EPBC Act is Australia’s primary national environmental
legislation. Its object includes (s 3):RESOURCE
www.rmla.org.nz
MANAGEMENT
JOURNAL 17
(a) to provide for the protection of the environment, that will or may result from allowing the activity. Even
especially those aspects of the environment that are prior to the enactment of that provision, offsetting or
matters of national environmental significance; and compensation could be considered under s 104(1)(c)
(Clearwater Mussels Ltd v Marlborough District Council
(b) to promote ecologically sustainable development
[2018] NZEnvC 88 at [11]).
through the conservation and ecologically sustainable
use of natural resources; … Although there is as yet no operative national direction
relating to biodiversity offsetting, incorporation of
The “matters of national environmental significance”
biodiversity offsetting into planning instruments and
include wetlands of international importance; listed
improving their design and implementation has been
threatened species and ecological communities; listed
greatly assisted by international work programmes and
migratory species; the Great Barrier Reef Marine Park
publications, particularly the Business and Biodiversity
and protection of water resources from coal seam gas
Offsets Programme (BBOP), and local publications including
development and large coal mining development (ch 2
the Guidance on Good Practice Biodiversity Offsetting
pt 3). A person must not take an action that has, will have,
in New Zealand (New Zealand Government, 2014) and
or is likely to have a significant impact on a matter of
Biodiversity Offsetting under the Resource Management Act
national environmental significance, unless approved by
(Maseyk and others, 2018).
the Minister or their delegate under the EPBC Act (ch 2
pt 3). Such approvals are administered by DAWE. There has also been judicial consideration of biodiversity
offset and compensation. Early case law focussed on
The process for approval comprises referral to the Minister
the distinction between mitigation and offsetting (Day v
of an activity that the applicant considers will have, or be
Manawatu-Wanganui Regional Council [2012] NZEnvC
likely to have, a significant impact on a matter of national
182 at [3-63]; Royal Forest and Bird Protection Society of
importance, and a decision by the Minister as to whether
New Zealand Inc v Buller District Council [2013] NZHC
that is accurate (pt 7), assessment of the activity (pt 8), and
1346). More recent jurisprudence has considered the
then a decision whether to approve the activity and if so on
parameters within which offsetting and compensation
what conditions (pt 8).
should be applied in New Zealand, in response to modern
The Minister’s decision whether to approve the activity is regional policy statements and plans incorporating
subject to several obligations and mandatory considerations biodiversity offsetting and compensation principles. For
(pt 9 div 1 subdiv B). Although the EPBC Act does not example, the Environment Court recently considered the
expressly refer to biodiversity offsetting or compensation principles that determine whether a proposed programme
conditions, offsets have been used as a condition of of action is a valid biodiversity offset and the circumstances
approval since 2001 (Miller and others, 2015). in which biodiversity compensation should be permissible
In 2012 DAWE released the EPBC Act Environmental (Oceana Gold (New Zealand) Ltd v Otago Regional Council
Offsets Policy which applies to any proposed action that [2019] NZEnvC 41; Oceana Gold (New Zealand) Ltd v
impacts on a protected matter, and the Offsets Assessment Otago Regional Council [2020] NZHC 436).
Guide which implements the requirements of the Policy by In reaching its decision to approve limits on the circumstances
calculating the equivalence of biodiversity trades. in which biodiversity offsetting and compensation can be
used, the Environment Court cited with approval concerns
THE NEW ZEALAND CONTEXT raised in M Christensen Biodiversity offsets – a suggested
Biodiversity offsetting or compensation measures are way forward (Resource Management Journal, April 2010),
relevant considerations in New Zealand resource consent that offsets can allow “developments to proceed that
decisions. Section 104(1)(ab) of the Resource Management have a very significant impact on biodiversity that in many
Act 1991 (RMA) codifies a requirement for consent
authorities to consider, subject to pt 2, any measure
proposed or agreed to by the applicant for the purpose
of ensuring positive effects on the environment to offset
or compensate for any adverse effects on the environment ContinuedRESOURCE
www.rmla.org.nz
MANAGEMENT
18 JOURNAL
cases would be judged unacceptable”, and that there are and that the DAWE “is unable to demonstrate that conditions
some ecosystems, habitats and species in respect of which of approval are appropriate”. In making this last finding, the
offsetting is inappropriate or impossible (at [147]–[148]). Audit was scathing of the DAWE’s assessment, approval,
monitoring and enforcement of offset conditions (s 4).
In a decision on the West Coast Regional Policy Statement,
a slightly different approach was taken to incorporation The Audit’s specific findings, and possible implications for
of limits (Heritage New Zealand Pouhere Taonga v West New Zealand, are discussed below.
Coast Regional Council [2020] NZEnvC 80). Biodiversity
First, the Audit found that DAWE does not identify desired
offsetting and compensation may only be used where the
environmental outcomes as a means of determining the level
activity first avoids particular adverse effects.
of acceptable environmental impact. As a consequence,
Information about the outcomes of biodiversity offsets there is no method for determining whether approval
or environmental compensation (such as the extent to conditions are proportionate to the environmental risk and
which conditions are complied with, and whether stated ultimately, or whether the approval itself is appropriate.
outcomes are achieved) is not compiled in New Zealand.
New Zealand biodiversity offsetting policies are typically
Nor have these matters benefited from Environment Court
premised on a “no net loss or preferably net gain”
consideration or formal audit. A review of compliance of
objective. Beyond this broad scale objective, specific goals
offsets and environmental compensation several years ago
(for example, no net loss of what, compared to what, by
demonstrated a significant proportion of conditions were
when), and desired outcomes (for example, regional targets
not met (32%), with levels of compliance being uneven
for habitat extent or population targets) are less commonly
across sectors from 100% for renewable energy generation
explicitly defined. The lack of national direction on specific
projects to just 4.5% for agriculture (Brown and others,
goals and outcomes means New Zealand is likely to face
2013). Brower and others (2018) also demonstrated similar
similar inadequacies to the Australian situation.
trends with respect to compensation conditions on public
conservation land. Second, the DAWE was criticised for not having established
internal guidance for reviewing environmental offsets
THE AUDIT AND IMPLICATIONS FOR NEW ZEALAND beyond the EPBC Act Environmental Offsets Policy and the
supporting Offsets Assessment Guide and had no “quality
There are good reasons for restricting the use of biodiversity
assurance process for sampling or reviewing offset plans.”
offsetting and compensation including inadequacy of
As a result, there was no way of ensuring “that offsets are
exchange (across type, amount, space and time), ability
assessed consistently, in line with the offset policy and in a
to provide additional gains, and inappropriateness
way that achieves the objectives of the EPBC Act”.
(ecological, technical, social or cultural) of trading in
terms of the ecosystem, habitat or species that an offset Both of New Zealand’s offsetting guidance documents are
or compensation is proposed to apply to. These concerns non-statutory documents and offsetting policies remain
form the basis of biodiversity offsetting principles. inconsistent across different regional policy instruments.
Against that background, it is safe to assume that deviation
The Australian experience provides an additional reason
from New Zealand’s guidance documents is common.
for New Zealand to approach biodiversity offsetting with
caution. By taking heed of the Australian Audit findings, Third, the DAWE was found to have no agreed method
New Zealand may succeed in avoiding some of the for estimating risk of loss averted – being the risk that the
most serious outcomes that result from poor design of biodiversity at the proposed offset site would be lost at
biodiversity offsetting policies and proposals and related some defined point in the future if not for the offset. Risk of
implementation issues (for example, compliance with loss estimates need to be accurate so that “the conservation
biodiversity offsetting consent conditions). gain delivered by the offset is correctly calculated and …
is ultimately greater than or equal to the negative impact.”
The Audit found that the DAWE’s administration of the
Despite demonstrable inconsistences in its risk of loss
EPBC Act was “ineffective”, the governance arrangements
assessments (for example, two offsets being approved
supporting administration were “not sound”, that regulation
for the same project at the same property with differing
is “not supported by appropriate systems and processes”You can also read
