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Appendix 1: Relevant legislation
Resource Management Act
Although coastal management is singled out in the Act, there is no specific part within the Act which deals with it.
Regional coastal plans focus on the sustainable management of natural and physical resources within the coastal marine area (below mean high water springs). Other regional plans can address natural resources, in particular land, (air) and water above mean high water springs, air quality and land management.
District Plans contain management provisions from a district perspective. Under the RMA, District Councils have particular responsibilities for the management of land above mean high water springs, including for subdivision, use and development. District Plans are required to not be inconsistent with the NZCPS, RPS and Regional Coastal Plan.
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 in which McKay J. Court of Appeal noted that
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 [Functionless.], 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).
Building Act
The relationship between the BA and RMA is considered in sections 68(2A) (regional rules) and 76(2A) (district rules) of the RMA, which states:
"Notwithstanding section 7(2) of the Building Act 1991, rules may be made under this section, for the protection of other property (as defined in section 2 of that Act) from the effects of surface water, which require persons undertaking building work to achieve performance criteria additional to or more restrictive than those specified in the building code in force under that Act."
A corresponding reference is also contained within the Functional Requirement E.1.2, and corresponding Performance Standards of the Building Code. The reference in the Building Code is to 'surface water resulting from an event', which ensures that causes of flooding not associated with a storm, such as high tides, are to be taken into account. These events do not specifically refer to climate change events, and instead rely on such events having a 10 percent or 2 percent probability of occurring annually. The provisions will therefore, not protect property from coastal climate change hazards in the future.
Other provisions relevant to coastal hazards are outlined in section 30 and 36 of the Building Act. Section 30 of the BA addresses Land Information Memoranda and enables information to be made available to the purchaser at the time of sale on potential erosion, avulsion, falling debris, subsidence, slippage, alluvium, or inundation, that is not otherwise apparent in District Plans. Such provisions could include future coastal hazards likely to result from climate change until such time as more prescriptive criteria (such as through district plan provisions) are able to be established.
Section 36 of the BA notes that a territorial authority is required to refuse to grant a building consent for work on unstable land unless the authority is satisfied that the work will not increase the instability. A building consent granted for such land must be noted on the certificate of title.
In Arkinstall v Wairoa DC [1998] NZRMA 428, noted [1998] BRM Gazette 117, the Court accepted that s 36(2) BA91 was a more appropriate way to deal with concern about erosion, than requiring a covenant under s 108(2)(d) RMA91 to the effect that the only building allowed on the site must be relocatable. The Court adopted the reasoning of Hammond J in Coromandel Peninsula Watchdog Inc v Hauraki DC [1997] 1 NZLR 557, noted [1997] BRM Gazette 53, at p 566.
In many cases it has been argued that controls under the RMA do not need to be applied because the Building Act regulates building in areas subject to natural hazards. This argument has been rejected. In Bay of Plenty Regional Council v Western Bay of Plenty District A27/02 the Court noted that both Acts regulate building in zones subject to natural hazards according to each Act's purpose. The RMA contains a wider environmental perspective than the Building Act ("sustainable management"). Generally the RMA provisions will be invoked initially and the Building Act will follow. In Lowry Bay Residents Association v Eastern Bays Little Penguin Foundation Inc W 45/01 (Judge Kenderdine presiding) the Court firmly rejected the argument that the potential of the proposed facility to be affected by severe storms, salt deposits and spray drift was not relevant because design of buildings is a matter dealt with under the Building Act. The Court expressed surprise that the development had been approved for an area demonstrably subject to coastal hazards.
Local Government Act 2002
This Act requires stopped roads along the margins of the coast (along Mean High Water Springs) to be vested in Council as esplanade reserves. The Local Government Act 1974 also establishes the means by which Council may collect financial contributions for funding the acquisition, maintenance and development of reserves.
Section 650A1(i) of the Local Government Amendment (No 2) Act 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)'.
Civil Defence Emergency Management Act 2002
As part of the comprehensive approach to civil defence emergency management (CDEM), all hazards, not only natural hazards, must be taken into consideration.
The CDEMA requires CDEM Groups to form and prepare Civil Defence Emergency Management Plans by June 2005. CDEM Groups are cross-boundary, regional groupings of which all the region's local authorities are represented by their mayors.
The CDEM plans must state and provide for:
- the local authorities that have united to establish the CDEM Group;
- the hazards and risks to be managed by the Group;
- the civil defence emergency management necessary to manage the hazards and risks;
- the objectives of the plan and the relationship of each objective to the National Civil Defence Emergency Management Strategy;
- the apportionment between local authorities of liability for the provision of financial and other resources for the activities of the Group, and the basis for that apportionment;
- the arrangements for declaring a state of emergency in the area of the Group;
- the arrangements for co-operation and co-ordination with other Groups.
Reserves Act
The Reserves Act also enables the formation of esplanade reserves and esplanade strips (in accordance with the purposes outlined in the RMA) where land adjoins the coast. The key difference between these two provisions being that esplanade strips are not fixed in position but maintain their position relative to the coast (or other body of water), even if the coast moves. Unlike esplanade reserves, which can only be created in the circumstances outlined in the RMA, esplanade strips can also be created by voluntary agreement.
While the Reserves Act is based on public use and access, often reserve areas are used to provide buffers of coastal land through managed retreat, or adaptation responses where coastal hazards have been identified. Without explicit reference to buffer functions in a reserve management plan, it is questionable whether reserve areas can be treated in this way by TAs, because their buffering function may impact upon their specified use for reserve or open space recreation reserve.
The eight classifications of reserves differ in their degree of protection and public access rights.
Private Property Rights
RMA case law on property rights has clearly established that property rights are subject to RMA procedures.
The most important case on 'property rights' in this context is Falkner v Gisborne District Council [1995] 3 NZLR 622 (Barker J, High Court Gisborne). In that case it was held that a common law right to protect ones property from the sea must be subject to the procedures under the RMA.
In Bay of Plenty Regional Council v Western Bay of Plenty District Council A 27/02 (Judge Bollard presiding) the Court noted that the even if private property owners are prepared to accept the risk of a hazard, the council still has responsibility to control the use of 'at risk' land.
In Skinner v Tauranga District Council A 163/02 (Judge Bollard presiding) economic evidence was put forward of the decrease in property values if rules restricting development were included in the plan. However the Court said this was not sufficient to override the need for the council to plan ahead for coastal hazard risks.
In summary, arguments about overriding property rights, and residents who are prepared to accept the risk, have not succeeded.
