Ground Cover is a quarterly publication tracking legislative and regulatory reform in construction, local government, resource management and planning law. Our multi-practice team of construction and major projects lawyers offers market-leading expertise and a seamless service for large and mid-sized infrastructure projects.


Graduated earthquake strengthening programme

The Government will legislate to provide for a more risk-indexed approach to the strengthening of earthquake-prone buildings.  The new policy will:

  • vary the timetable according to seismic risk (from a deadline of 15 years in the highest risk areas to 35 in the lowest risk areas)
  • prioritise education and emergency buildings by requiring that they be strengthened in half the standard time in high and medium risk zones
  • remove farm buildings, retaining walls, fences, monuments, wharves, bridges, tunnels and storage tanks from the requirement for seismic assessment, and
  • encourage earlier upgrades by advertising which buildings are earthquake prone on an electronic public register and through physical signage on the building.

The proposed amendments have now been incorporated into the Building (Earthquake-prone Buildings) Bill and the Local Government and Environment Select Committee has issued an interim report asking for further written submissions from people who submitted on the Bill as originally drafted.

The committee considers that the changes are sufficiently significant to require a new round of consultation.  The submission deadline is 16 July 2015.

Link: Committee report

Building Act emergency management proposals

The Ministry of Business, Innovation and Employment (MBIE) is seeking feedback on proposals to manage unsafe buildings and life-safety risks during and after a state of emergency.  The discussion document responds to recommendations from the Royal Commission into the Canterbury Earthquakes.  Proposed changes include:

  • allowing local councils to take action where a damaged building requires immediate repair or demolition but is not deemed dangerous under section 121 of the Building Act or earthquake- prone under section 122
  • enabling protected heritage buildings to be demolished without consent where this is needed to protect against injury or death
  • enabling territorial authorities to recover the costs of maintaining cordons around dangerous sites from the building owner after three months.

Submissions close on 24 July 2015.

Links MBIE consultation document

Resource management

RMA Phase 2

Environment Minister Nick Smith’s office has confirmed that negotiations are continuing with ACT, Peter Dunne and the Māori Party and that the Minister is still confident of getting a Bill into the House this year.

Inter-party discussions are generally conducted in secrecy (unless there is a break down) to give everyone maximum flexibility for manoeuvre. This explains why there is little information in the public arena, beyond the Prime Minister’s acknowledgement in May that the proposed amendments to ss 6&7 Part 2 have been shelved because National can’t get the necessary majority.

These would have merged the two sections and removed the “hierarchy” which favours environmental values over social, cultural and economic values.   But, although there is a road block in front of those changes, the pressure is growing for a more thoroughgoing reform of other aspects of the RMA.

  • First, it is becoming evident that more action is needed on the supply side to contain the Auckland residential market (especially given continuing high net immigration, lowering interest rates and a proposed relaxation in China of the overseas property investment rules).
  • Second, the Productivity Commission has made a compelling case for radical change in its Using land for housing draft report.
  • Third, the OECD fingered the RMA as an impediment to economic growth in its latest Economic Survey of New Zealand, out last month.

The Productivity Commission and the OECD make some of the same recommendations (in the case of the Productivity Commission, still technically “draft” recommendations).  In particular, both recommend:

  • more central government guidance to local government in the implementation of environmental and planning regulations
  • the need to recognise and provide against the NIMBY principle in thwarting densification
  • new infrastructure demand management strategies such as congestion charging
  • diversifying the revenue sources for infrastructure development through such mechanisms as taxing the windfall gains to landowners from rezoning.

It is too early to be definitive, but our reading of the political climate is that there is a real appetite for reform to streamline the planning process and to deal to restrictive planning requirements and infrastructure and land supply bottlenecks.

Specific reforms which the Minister has foreshadowed are to make four additions to the Act’s principles - management of natural hazards, recognition of the urban environment, the importance of affordable housing, and provision for appropriate infrastructure.

He has also signalled that the Bill will make a range of plan making tools available to councils, perhaps based on the Auckland Unitary Plan, Special Housing Areas and freshwater collaboration processes.

We’re expecting a Bill which builds on the momentum created by the increasing unease over the Auckland housing boom and the work of the OECD and the Productivity Commission to produce substantive change.

Links: Chapman Tripp commentary on Using land for housing: OECD report

Environment Reporting Bill

This has now passed its second reading, on the votes of National, ACT and United Future. The Greens, NZ First and Labour are opposed to the fact that it gives the Environment Minister discretion over which topics will be monitored.

Environmental watchdog on water quality

The Parliamentary Commissioner for the Environment has issued two “could do better” reports on water quality. She attributes the ongoing conversion to dairy as a major issue because higher stocking rates to improve productivity are overwhelming the benefits gained from mitigation strategies. She also identifies a number of ways in which the National Objectives Framework (NOF) within the 2014 NPS on freshwater management could be strengthened.  Among these are:

  • abandonment of the ‘unders and overs’ approach which allows regional councils to continue to degrade some waterways provided they compensate by improving others
  • bringing estuaries within the NOF (currently they are covered by the Coastal Policy Statement instead as they are partly saltwater), and
  • inclusion of a Macroinvertebrate Community Index within the NOF as an important bio-indicator of the life supporting capacity of freshwater.

Links: Land use and nutrient pollution report, and Managing water quality

EPA funding

The Ministry for the Environment (MfE) has completed its first three year review of the EPA and has found that it has “worked positively to deliver its statutory functions within the legislated timeframes and within its appropriated budgets”. However it considers that, while its operating approach has been appropriate for the establishment phase, a “step-change” is required if it is to meet its objective of being a world- leading environmental regulator. And that will require more funding.

The review recommends that the EPA see if it can extract more value from its current funding but considers that this is unlikely to be enough and that “additional investment” will be required from the government. Budget 2015 allocated an additional $4 million for the EPA to cover the implementation of the EEZ legislation in 2015-16.

Links: MfE review

Local Government

New specialist local government risk management agency?

Craig Stobo is chair of an establishment board to investigate the feasibility of creating a local government agency dedicated to risk management and insurance.  Other members are Hugh Cowan of EQC, Local Government New Zealand President Lawrence Yule and the Chief Executives of the Taranaki Regional Council, Waimakariri District Council and Tauranga City Council.

It is expected to report to the government and LGNZ by June next year. A separate but concurrent review will examine funding arrangements between central and local government to restore “three waters” (water supply, wastewater and stormwater) and flood control infrastructure after an emergency. Currently central government reimburses councils for up to 60% of certain restoration costs.

Housing accords

The Government has signed a Housing Accord with Nelson City Council and approved two new Special Housing Areas in Tauranga.