On 24 November 2012 Hastings District Council (the Council) issued a public notice that it had filed an application for declarations with the Environment Court relating to the application of the National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health (the NES). The 15 day period for joining the application as a party expires on Monday 17 December 2012.

The NES provides national planning controls and technical standards for specified contaminants, and applies to all potentially contaminated sites in New Zealand. Of note, resource consent may be required for a change in land use or a subdivision on potentially contaminated land.

The Council has brought the applications because of uncertainties introduced by the NES, specifically as to whether resource consent for a land use change is required under the NES where a subdivision consent taking contamination issues into account was granted prior to the NES coming into effect.

The land in question is former orchard land, which was determined through the residential subdivision process to meet Hastings District Plan guidelines for protecting human health. 65 of the subdivided sections in question are yet to have residences built on them, although they have been 'created' in the sense that the Council has issued section 224 certificates signing off the subdivisions.

The Council reports that it introduced the pre-NES guidelines because of a concern that conversions of horticultural land to residential use might put residents' health at risk. It therefore notified a plan change in 2005 which made soil testing a requirement of subdivision and rezoning applications, particularly where the potential risk of historic agrichemical use could affect human health.

The Council considers, and has applied for declarations that:

  • the subdivision consents prevail over the NES in the sense that the dwellings and associated disturbance of the soil are expressly allowed by a resource consent that predates the NES;1 and
  • the subsequent use of subdivided land is not a "change of use" under the NES, having met all subdivision consent requirements as to site contamination, and having been issued with section 224 certificates.

The Council comments in its public notice that other districts may have parallel situations or concerns. However, it has noted that the application "does not seek guidance over application of the NES (testing, reporting and remediation obligations) more generally".

Although the application's focus is by necessity specific, and will clarify only a few points, we predict that the Environment Court's decision will be of interest to Councils, practitioners and landowners alike. Uncertainty as to how the NES should be interpreted will be, to some extent, alleviated. It might also prompt a review of the Ministry for the Environment's Users Guide, which acts as an aid for interpretation of the NES.