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“Loopy rules” to be ironed out

The Government has accepted 72 of the 75 recommendations from the Rules Reduction Taskforce, which reported in September last year. However almost all of the actions listed in its response paper refer to policies or initiatives which are already in progress.

The three proposals which will not be pursued are:

  • stopping the practice of demanding money to sign an affected party form (the Government says that side agreements can be very beneficial when a person is genuinely affected by a resource consent application)
  • requiring councils to have evidence of potential contamination before imposing a test or re-test (the Government considers that the status quo is “appropriate”), and
  • reviewing the recent tree protection changes which put the majority of the costs associated with protected trees on to the property owner (the Government considers that a review is premature given that the new policy has only been in effect since September 2015).

Link: Government response

Supreme Court on feasibility expenditure

The Supreme Court has dismissed an appeal by Trustpower against the Court of Appeal’s decision to disallow deductions for “feasibility” costs incurred in obtaining resource consents for proposed electricity generation projects.

The Court found the costs were capital in nature, as the consents were “tangible progress toward eventual completion” of capital works.

Link: Chapman Tripp commentary

Resource management

Resource Legislation Amendment Bill deferred again

The Resource Legislation Amendment Bill will not now be reported back to the House until 7 November 2016. This is the second deferral. It was previously deferred from 3 June to 6 September. The deferrals reflect deep concerns across the spectrum at some aspects of the Bill, in particular:

  • the proposed curtailment of consultation rights
  • the notification provisions and reverse sensitivity effects
  • the workability of the collaborative processes as currently drafted
  • the new Ministerial powers, and
  • the limitations on appeals.

Our information is that the delays are down to the Cabinet as Ministers wrestle with how to respond to the issues raised by submitters. We also understand that National may need Labour’s support to get the Bill through the House as Peter Dunne is still off-side and so, at least at this stage, are the Māori Party and – despite the occasional rumour to the contrary – NZ First.

Kermadec Bill treading water

As we go to print, progress on the Kermadec Ocean Sanctuary Bill has been suspended while the Government negotiates with Te Ohu Kaimoana (TOKM) for a solution to their grievances around the extinguishing of property rights granted under the 1991 Treaty Fisheries Settlement.

Māori customary rights will not be affected by the legislation.

The negotiations had broken down but the Prime Minister agreed to go back to the table when the Māori Party threatened to withdraw from its coalition agreement with National. Some of this trouble may have been averted had the Government consulted with the Māori Party and iwi before announcing the initiative.

The Bill provides for the establishment of a new 620,000 square kilometre marine sanctuary around the Kermadec Islands, representing around 15% of New Zealand’s Exclusive Economic Zone. It has been reported back by the select committee subject to a range of amendments. These include:

  • changing the name to Kermadec/Rangitāhua Ocean Sanctuary
  • clarifying that prohibited activities include the disturbance or removal of living natural material from the seabed and all forms of seismic surveying
  • extending the maximum term of an Environmental Protection Authority (EPA) authorisation for a marine research expedition from two to five years and requiring the EPA to obtain an impact assessment before making a determination
  • requiring that the Conservation Board include a nominee to represent the interests of “iwi Māori”, and
  • providing for a review of the regime 25 years after enactment. 

The committee decided by majority (Labour opposing) to maintain the clause preventing compensation for the loss of quota.

Link: Bill

“Blue skies” review

The Productivity Commission wants a clearer distinction in planning legislation between the built and the natural environment and statutory recognition that there should be a presumption in favour of development in urban areas.

It is undecided at this stage on whether the best legislative solution is to retain a single law with two distinct sections or to create two distinct laws.

Submissions are due by 3 October.  The Commission hopes to make its final recommendations to the Government by 30 November. Bill English indicated when he first announced the inquiry in 2015 that he would be looking for policy to take to the electorate in the 2017 elections rather than to enact this term. Given that the Unitary Plan has released some of the pressure around the Auckland housing issue, this timetable seems likely to be followed.

Link: Draft report

The climate change challenge

The Government has pushed forward the ratification of the Paris Agreement and confirmed an emissions reduction target of 30% below 2005 levels by 2030. It has also announced the formation of two new reference groups:

  • a biological emissions group comprising a wide range of agricultural, horticultural and farming stakeholders to construct a solid information base to inform and develop a consensus around the climate change response in the rural sector, and
  • a forestry group to road test any proposed changes to the treatment of forestry within the Emissions Trading Scheme.

Link: Announcement

Local government

Local government reforms to be diluted?

Aspects of the Local Government Act Amendment Bill (the Bill) may be diluted in response to strong opposition from Local Government New Zealand and territorial authorities.

They have taken particular exception to proposals which would allow the Local Government Commission (LGC) to create council-controlled organisations across regions to manage assets or services (such as water and transport), without the agreement of the affected councils. They regard these as anti-democratic.

The legislation was introduced after a number of high profile LGC-led amalgamation attempts failed. Labour agreed to support the Bill only to the select committee stage and has now withdrawn that support. Clearly the political repercussions are beginning to worry National as the Prime Minister has indicated that the Government will soften the Bill, saying it “isn’t absolutely buttoned down on the issue” and “won’t die in a ditch over it”.

Link: Transcript of One News report

Auckland Unitary Plan

The Auckland Unitary Plan opens a significant development opportunity although the Auckland Council watered down a number of the Independent Hearing Panel’s recommendations.

Changes include:

  • a reaffirmation of the compact city
  • a less expansive approach to subdivisions on rural land and in the Future Urban Zone
  • strengthened provisions for notable trees
  • the restoration of a minimum dwelling size requirement, and
  • a reduction in the number of houses per section allowed of right in the Mixed Housing Urban and Suburban Zones.

Early planning will be required to successfully manage the opportunities and risks the Plan will create.

Link: Chapman Tripp commentary

Extension to special housing areas legislation

The Government has legislated under urgency to extend the Housing Accords and Special Housing Areas Act (HASHA Act). The legislation:

  • allows plan change requests made, but not completed, when the Auckland Unitary Plan becomes operative to continue to run their course under the HASHA Act
  • contains a number of provisions to discourage land banking, including giving the Minister discretion to revoke Special Housing Area (SHA) status if no consent or plan change application is lodged within 12 months, and
  • extends by three years to 16 September 2019 the date by which SHAs can be created.

Link: Chapman Tripp commentary

Urban development authorities still on the agenda

Nick Smith used his press statement on the HASHA extension to confirm that the Government will be introducing a Bill to allow for the establishment of urban development authorities as part of its response to the housing supply issue. It also has work underway to reform unit title law to better support apartment construction and building law to promote innovation and quality assurance. No timetable was given.

Link: Minister’s statement

Eight point resource management reform plan from LGNZ

LGNZ has released an eight point action plan for resource management. The report emerged from the “blue skies” review which LGNZ embarked on last year.

Broad recommendations are:

  • a regional spatial planning process with statutory “teeth” to reduce friction between the various statutes in play and the institutions responsible for administering them
  • special opt-in “economic zones” that will allow local authorities to tailor policy to local needs
  • an ability for councils to ask central government to play an “active partner” role in resolving local issues of national interest
  • a framework to evaluate the performance of the RM system across social, cultural, economic and environmental dimensions
  • standard tools to assess costs and benefits
  • prioritised investment based on a comprehensive understanding of what resources are being drawn down, constraints upon capacity and how the environment is changing
  • a two-tier “go” and “no-go” framework for RM decision-making, and
  • a resource charge to recognise the public nature of resources held in common (while ensuring there remains an incentive for private sector investment and resource extraction or use).

Link: Planning our future