• About this site|
• Site index|
• Contact us

Coastal Hazards and Climate Change: A Guidance Manual for Local Governmentin New Zealand

Executive Summary

1 Introduction to the Guidance Manual

2 The Changing Climate

3 Implications for New Zealand’s Coastal Margins

4 Responding to Climate Change: Future-proofing Decision-making

5 Understanding Changing Coastal Hazard Risk

6 Managing Coastal Hazard and Related Climate Change Risks

7 Further Resources

8 References

9 Glossary

10 Appendix 1: Relevant legislation

11 Appendix 2: Relevant case law

12 Factsheet 1: Coastal erosion

13 Factsheet 2: Coastal inundation (storms)

14 Factsheet 3: Coastal inundation (tsunami)

15 Factsheet 4: Components of sea level

16 Factsheet 5: Tides

17 Factsheet 6: Mean High Water Spring (MHWS)

18 Factsheet 7: Storm surge

19 Factsheet 8: Long-term sea-level fluctuations

20 Factsheet 9: Datums – Mean Sea Level and Chart Datum

21 Factsheet 10: Waves

22 Factsheet 11: Wave set-up, run-up and overtopping

23 Factsheet 12: ENSO and IPO

10 Appendix 1: Relevant legislation

Disclaimer: This appendix has been prepared for the Ministry for the Environment by external contractors, as noted on the verso of this document’s title page.  To the extent that this Guidance Manual deals with legal matters, it does not necessarily represent the views of the Ministry for the Environment; readers should not rely on it as legal advice.

10.1 Resource Management Act 1991

The Purpose (section 5(1)) of the Resource Management Act 1991 (RMA)¹ is to promote the sustainable management of natural and physical resources.  The RMA imposes a hierarchy of planning instruments (Figure A1.1) for:

managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety.

The Act requires particular attention be paid to avoiding, remedying or mitigating the actual or potential adverse effects of activities on the environment (section 5(2)).

The RMA recognises the special significance of the coastal environment in Part II (Purpose and Principles) and various other sections of the Act² as well as through the mandatory New Zealand Coastal Policy Statement (NZCPS) (sections 56–58).  Regional policy statements and regional and district plans must be prepared to give effect to the Act and the NZCPS.  While there is no specific part within the Act itself that deals with coastal management and coastal hazards, the functions that are stipulated for the regional and district councils require avoidance or mitigation of natural hazards.  Coastal hazards are clearly a subset of natural hazards.

Some relevant principles prescribed in the RMA for achieving the purpose of the Act include:

• recognising and providing for ‘Matters of national importance’ (section 6), such as: (a) The preservation of the natural character of the coastal environment (including the coastal marine area) ...; (b) The protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development; (d) The maintenance and enhancement of public access to and along the coastal marine area, ...; and (e) The relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga;

• having particular regard to ‘Other matters’ (section 7), such as: (a) Kaitiakitanga (the ethic of stewardship); (c) The maintenance and enhancement of amenity values; (g) Any finite characteristics of natural and physical resources; and (i) The effects of climate change.

The latter principle, which states that particular regard must be given to the effects of climate change (section 7(i)), came into effect on 2 March 2004 as a result of the RMA (Energy and Climate Change) Amendment Act 2004 (2004 No. 2).  This amendment has relevance to the increasing need to plan for the effects of climate change that can exacerbate coastal hazards and also the effects of adaptation measures put in place to protect natural and physical resources at the coast to alleviate the risks from climate change.

Under the RMA, regional (or unitary) councils are responsible for managing the effects of activities within the ‘coastal marine area’ via a regional coastal plan, whereas territorial local authorities are primarily responsible for managing activities on the landward side of the coastal marine area through a district plan.  Regional councils can also manage some land uses through a regional plan.  The coastal marine area is defined in the RMA (section 2) as the foreshore, seabed, coastal water and air space above the water between:

• a seaward boundary (territorial sea limit, which is presently 12 nautical miles offshore) and

• a landward boundary (the line of Mean High Water Spring (MHWS), except where that line crosses a river – in which case it is generally upstream as determined by the given criteria).

Note that this landward boundary moves somewhat with natural cycles of shoreline erosion and accretion on sedimentary coasts (if not artificially constrained).  However, as climate change effects increase, the mean high water spring boundary will change more extensively, with an increasing encroachment of land (brought about by sea-level rise) and potential increasing erosion of vulnerable sedimentary coasts.  Any dispute of where MHWS lies requires a formal boundary survey to be undertaken.

Although this coastal delineation suggests a concise management regime, coastal issues invariably cross the landward jurisdictional boundary of the coastal marine area, and thereby require an integrated management approach.  Integrated management is fundamental to the RMA and is specifically required under sections 62(1)(b), 62(1)(i)(i), 65(3)(c), 67(2)(f) and 75(2)(f).  The use of integrated management is reinforced in the New Zealand Coastal Policy Statement (under review – out for public consultation: March 2008), which applies to the ‘coastal environment’ and refers to both the coastal marine area and the land adjacent to the coast up to the nearest coastal hills or prominent feature (developed by case law but not otherwise defined in the Act).

The RMA requires that levels of authority in a region consult with each other (and with adjacent regional and territorial councils) when preparing plans and regional policy statements under the RMA; and that they consider the extent of consistency required between plan or policy statement provisions.

There are some key issues of how district and regional plans give particular regard to the effects of climate change (as required by RMA section 7).  These include:

• only regional policy statements, district plans and regional coastal plans are mandatory.  Although regional councils may prepare other plans to fulfil their functions under RMA section 30, including those to control the use of land in relation to natural hazards, such plans are not mandatory for land outside the coastal marine area³

• an activity cannot occur within the coastal marine area unless there is a resource consent or rule in a plan permitting it.  This contrasts with most land-use activities (RMA section 9), where an activity is permitted unless a rule controls or prohibits it.⁴  Therefore, it is critical that policies and particularly rules in district plans are carefully constructed to achieve intended community outcomes for land use in the coastal environment, in relation to the managing the effects of coastal hazards and climate change

• even if controls on building in a hazard area are contained in district plan rules, existing use rights generally apply to buildings constructed before the coastal hazard rules came into effect providing the building was ‘lawfully established’ (RMA section 10).  Even when a building has been partially or completely destroyed by coastal hazards or a new replacement is to be built for other reasons, ‘existing use rights’ usually still apply as long as the building is re-built on the same general footprint.  On the other hand, if controls on building in a coastal hazard area are contained in a regional plan, then existing use rights should not be relied on to allow reconstruction of the building.⁵  Section 20A also limits these rights when a new regional rule becomes operative.⁶

The issue of hazard management within district and regional planning documents was considered in the case of Canterbury Regional Council v Banks Peninsula District Council [1995] 3 NZLR 189, [1995] NZRMA 452 (CA) in which McKay J.  Court of Appeal noted:

It is true, ... that natural hazard is not defined as being the consequence of the occurrence, but as the occurrence itself which has or potentially has the adverse consequence.  What can be avoided or mitigated, however, is not the occurrence but its effect.  Neither in s 30 nor in s 31 are the words ‘effects of’ used in connection with ‘natural hazards’.  This is for the simple reason that they would be otiose,⁷ as the definition of ‘natural hazard’ incorporates a reference to effects.  The word ‘effects’ would also be inappropriate in respect of s 30(1)(c)(i)-(iii).  It is unnecessary and inappropriate to explain the language by reference to some subtle distinction between the respective functions of regional councils and territorial authorities.

It follows that the control of the use of land for the avoidance of [sic] mitigation of natural hazards is within the powers of both regional councils and territorial authorities.  There will no doubt be occasions where such matters need to be dealt with on a regional basis, and occasions where this is not necessary, or where interim or additional steps need to be taken by the territorial authority.  Any controls imposed can be tested by appeal to the (Environment Court), and inconsistencies are precluded by s 75(2).

A regime for managing hazards in the coastal environment works best when clear working agreements have been stated in the regional policy statement, which clarify the regional councils’ and territorial authorities’ respective responsibilities.  Regulatory plans are the main vehicle for managing effects of activities but councils are generally required to select the most effective, efficient and appropriate methods to achieve the purpose of the RMA (section 5).

However, there is potential to improve the management of the coastal environment through amending various planning instruments to formally recognise overlap and jurisdictional exclusivity, and through reviewing daily activities.  Some regional councils (eg, Environment Bay of Plenty, Environment Canterbury) have extended the geographical coverage of their coastal plan, called a ‘Regional Coastal Environment Plan’, by providing policies and objectives to guide activities (eg, natural character, public access and hazards) on land adjacent to the sea, as well as the coastal marine area.  Environment Canterbury’s Regional Coastal Environment Plan goes one step further as it also has rules that control building and other activities within coastal hazard zones (or setbacks).  These rules allow existing uses to continue, but buildings damaged or destroyed by the action of the sea may not necessarily be rebuilt as of right.⁸

In these regions, regional rules for a coastal hazard zone are expected to have the long-term effect of progressively rolling development back on a retreating shoreline – a managed retreat approach somewhat similar to that used in some states of the USA.⁹

10.2 The New Zealand Coastal Policy Statement

The New Zealand Coastal Policy Statement (NZCPS; gazetted in 1994) is a guiding policy under the RMA (sections 56–58) for managing the coastal environment.  The NZCPS is required to be ‘given effect to’ when district or regional plans are being drafted, and must be given ‘regard to’ when decisions on resource consent applications are being made.  Regional policy statements, regional coastal plans and district plans must give effect to the NZCPS (section 67(3) and 62(3) and section 75(3) RMA).

The NZCPS advocates a precautionary approach for decisions affecting the ‘coastal environment’.  It addresses the effects of activities on the coastal environment through a number of guiding principles and specific policies.  The policies highlighted below are particularly pertinent to the assessment of response options to coastal hazards, including sea-level rise, and other climate change impacts:

• policies 1.1.1 to 1.1.5 – address features and components of natural character

• policies 3.2.1, 3.2.2, 3.2.4 – consider appropriate subdivision, use and development of the coastal environment

• section 3.3 policies – address the precautionary approach towards proposed activities

• section 3.4 policies – recognise natural hazards, and outline provisions for avoiding or mitigating their effects

• section 3.5 policies – for maintenance and enhancement of public access.

The NZCPS is currently under review (out for public consultation: March 2008).  Hence, any reference in this Guidance Manual to specific policies may change as a result of this review process.

As part of the review, a survey showed that the NZCPS has been effectively implemented into regional coastal plans and regional policy statements, but only partially effective in influencing district plans and subsequent land-use planning decisions within the coastal environment.  While the NZCPS has assisted management of subdivision and land-use changes within the coastal environment, there are some concerns about the degree to which the principles and policies are reflected in the content of district plans and their implementation.  However, it was also acknowledged that there are other factors, beyond the NZCPS, that determine land-use outcomes.  The NZCPS alone cannot determine sustainable management outcomes in the coastal environment.¹⁰

10.3 National policy statements

National policy statements enable central government to prescribe objectives and policies on resource management matters of national significance.  Such statements guide subsequent decision-making under the RMA at the national, regional and district levels.  National policy statements can, therefore, significantly affect resource management practices in New Zealand.

The Minister of Conservation is required to prepare a New Zealand Coastal Policy Statement, but other national policy statements (prepared by the Minister for the Environment) are optional.  National policy statements have broad scope.  They can state policies and objectives on any issue that is of national importance and that is also relevant to promoting the sustainable management of natural and physical resources.  Regional policy statements and plans and district plans must give effect to all national policy statements.

10.4 National environmental standards

National environmental standards are regulations made under sections 43 and 44 of the RMA 1991.  Standards can be numerical limits, narrative statements or methodologies that are in a legally enforceable form.  They may include (but are not limited to) standards relating to:

• land use

• noise

• contaminants

• water quality, level or flow

• air quality

• soil quality in relation to the discharge of contaminants

• methods of implementing such standards.

This means that each regional, city or district council must enforce the same standard.  In some circumstances, councils can impose stricter standards.  There are national environmental standards around air quality and human drinking water sources.

10.5 Building Act 2004 and Building Regulations 1992

The Building Act 2004 addresses building work in the interests of ensuring the safety and integrity of the structure through its construction and subsequent use.  This focus is distinct from that of the RMA, which addresses the effects of that structure (or any activity within it) on the environment, and of the environment on that structure (or activity within it).  The Building Act is administered by the Department of Building and Housing¹¹ through district councils.

Under section 7) of the Building Act, a building consent authority must refuse to grant a building consent for construction of a building, or major alterations to a building, if:

1. the land on which the building work is to be carried out is subject or is likely to be subject to one or more natural hazards; or
2. the building work is likely to accelerate, worsen, or result in a natural hazard on that land or any other property.

However, these conditions do not apply if the building consent authority is satisfied that adequate provision is made to protect the land and building work from natural hazards (section 71(2)).  Natural hazards include coastal erosion and inundation from tides and storm surge (section 71(3)).

Buildings may require a land-use consent under the RMA (where a building: is located in an area in which building needs to be controlled; breaches a permitted activity condition in relation to bulk or location; or is associated with a type of activity not envisaged for a particular area) as well as a building consent under the Building Act.  If controls are imposed under both the RMA and the Building Act, the more stringent control prevails.  In this regard, section 71(2)(a) of the Building Act is often counter to the provisions developed under the RMA, and regional and district plans, in terms of the need for or appropriateness of coastal defences to protect buildings or property.

Section 72 of the Building Act allows for the granting of building consents if the work does not accelerate, worsen or result in a natural hazard, and if it is reasonable to grant the consent in respect of the natural hazard.  If this waiver occurs, the Registrar-General of Land must be notified (or on behalf of the crown, the relevant Minister and Surveyor-General must be notified, or in case of Māori land, the Register of the Māori Land Court) (section 73).  Any notification must include the project information memorandum for the building consent, and the natural hazard(s) must be identified.  Following this notification, an entry must be recorded on the certificate of title, noting that a building consent has been granted under section 72, and any particulars that identify the natural hazard concerned (section 74) must also be noted there.  This record-keeping allows for any future owners of the land to be aware of the risk that may not be apparent at the time of purchase.

Building regulations, including the mandatory Building Code, are made under and in accordance with the Building Act.  Under the present Building Act, the only part of the Building Regulations 1992 still in force is Schedule 1 containing the Building Code.  Clause E1¹² is aimed at safeguarding people from injury and property from damage by surface water (which can be fresh water or water from the sea).  Clause E.1.3.2 states that surface water, resulting from an event having a 2% probability of occurring annually, shall not enter buildings.  The clause is usually applied in the form of a minimum building floor level for housing and residential-communal buildings, and it is a minimum standard – some councils have adopted a 1% annual exceedence probability (AEP) which equates to an average return period of 100 years.

The Building Code is currently under review.  Some of the relevant suggestions in a discussion document by the Department of Building and Housing (not finalised) are:

• considering a change of the requirement to 1% AEP for flooding because it reflects the planning controls already being adopted by some territorial authorities, and provides a precautionary approach to managing the impact of climate change

• considering a requirement that particular types of building should be protected from tsunamis such as Performance Group 4 buildings (ie, those essential to post-disaster recovery or those associated with hazardous facilities eg, hospitals, fire, police, fuel storage) and Group 5 buildings (eg, major dams or extreme hazard facilities).

Finally, the theme throughout RMA and Building Act case law appears to be that, although district councils can exercise some judgement about whether to allow a subdivision or development, councils cannot abrogate responsibilities for avoiding or mitigating the effects of natural hazards and merely rely on the controls under the Building Act.  The RMA process is important because the outcome of that process will generally decide whether a building can be sited in the relevant area in the first place.  The Building Act, specifically sections 71–74, is particularly important where coastal (or other) hazards are discovered after titles have been created, or even after development is already established.

10.6 Local Government Act 2002

The Local Government Act 2002 (LGA) outlines administrative and management responsibilities for regional and district councils, including for matters such as land management, utility services, recreation assets, transportation and the associated provision of services.

The Local Government Act-1974 (LGA-1974) requires stopped¹³ roads along the margins of the coast (along MHWS) to be vested in council as esplanade reserves (section 345(3)).  The Local Government Act also establishes the means by which territorial local authorities may collect financial contributions for funding the acquisition, maintenance and development of reserves.

Section 650A of the LGA-1974 allows for district councils to undertake various works in the coastal environment, including the erection and maintenance of: quays, docks, piers, wharves, jetties, launching ramps and any other works for the improvement, protection, management, or utilisation of waters within its district (subject to the controls established by the RMA).

Community planning is a cornerstone of the LGA, which requires communities to prepare Long-term Council Community Plans (LTCCP) that set out desired community outcomes and longer term financial planning.  There are also specific consultation requirements that local governments must meet when preparing plans or bylaws under the LGA.  These requirements are particularly significant for coastal strategies, or other management plans that are adopted as part of the adaptation response to coastal hazards, including climate-induced impacts.

10.7 Civil Defence Emergency Management Act 2002

The Civil Defence Emergency Management Act 2002 (CDEM Act) is intended to:

• promote sustainable management of hazards

• encourage and enable communities to achieve acceptable levels of risk

• provide for planning and preparation for emergencies, and for response and recovery

• require local authorities, through regional groups, to coordinate planning and activities

• provide a basis for the integration of national and local civil defence emergency management

• encourage co-ordination across a wide range of agencies, recognising that emergencies are multi-agency events

• focus on reduction, readiness, response and recovery.

The CDEM Act requires that a risk-management approach be taken when dealing with hazards.  When the risks associated with a particular hazard are being considered, both the likelihood of the event occurring and its consequences must be addressed.  The CDEM Act is largely an enabling mechanism, which can complement both the Building Act and the RMA, particularly in managing residual risk (eg, where emergency arrangements, such as evacuation, are used when buildings are likely to be overwhelmed or when the hazard poses an intolerable risk to public safety).  In particular, integration between regional and district councils is achieved with the formation of CDEM Groups comprising representatives from each of the territorial local authorities and the regional council within a region.

The CDEM Act (section 17(1)) outlines the functions of a CDEM Group in relation to relevant hazards and risks.  These include:

• identify, assess, and manage those hazards and risks;

• consult and communicate about risks; and

• identify and implement cost-effective risk reduction ...

The CDEM Act (section 48) provides that each CDEM Group must provide a CDEM Group plan and that plan must state the hazards and risks to be managed by the Group and the actions necessary to do so.¹⁴  The CDEM Act, therefore, anticipates that regional and territorial authorities will co-operate in the management of hazards and risk, including coastal hazards.

10.8 Reserves Act 1977

The Reserves Act 1977 makes provision for the acquisition, control, management, maintenance, preservation, development and use of public reserves, and makes provision for public access to the coastline and rural areas.  Administering bodies are required to prepare management plans for their reserves, which are open for public comment and review (except management plans for most government and local purpose reserves).

While the Reserves Act is aimed at providing public use areas and access, these reserve areas may also be useful as providing buffers from coastal hazards.  However, councils must manage reserves to fulfil their purpose(s) under the Reserves Act (whether historic reserve, scientific reserve, scenic reserve, etc.).  If buffer functions are not specifically mentioned in a reserve management plan, it is questionable whether reserve areas can be treated in this way by territorial authorities, as their buffering function may have an effect on their specified use for reserve or open space recreation.  For example, the purpose of an esplanade reserve is defined in the RMA, but the primary purpose is not to reduce coastal hazard risk.  There is some debate whether managing an esplanade reserve to reduce the hazard on adjoining land is actually within the scope of the Reserves Act.  One option is to refer to a reserve’s hazard buffer functions within a reserve management plan.  However, at this stage there is no case law to support this approach.

10.9 Public Works Act 1981

The Public Works Act 1981 deals with the rights of central and local government to acquire private land for public purposes including for reserves (within the meaning of the Reserves Act), and the procedures for acquiring and disposing of this land.  The acquisition of land for reserve purposes is one way of providing for buffer mechanisms.

10.10 Foreshore and Seabed Act 2004

The object of the Foreshore and Seabed Act 2004 is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders in a way that enables the protection by the Crown of the foreshore and seabed, including protection of the association of whanau, hapu and iwi with areas of the public foreshore and seabed (section 3).

The ‘foreshore and seabed’ (section 5) collectively have the same offshore and landward boundaries as the coastal marine area defined in the RMA.  The relevant purposes of Foreshore and Seabed Act are (section 4):

• providing recognition and protection of ongoing customary rights to undertake or engage in activities, uses, or practices in areas of the public foreshore and seabed

• providing for general rights of public access and recreation in, on, over and across the public foreshore and seabed.

Some of the issues covered by the Foreshore and Seabed Act that may be relevant to coastal hazard management and adaptation to developing climate change impacts include:

1. rights of owners of roads located in the public foreshore and seabed (section 15)
2. status and ownership of reclamations (sections 18–20)
3. provisions for land title where a portion is located below the line of mean high water spring (section 23).

[ Previous|Next