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3. The Legislative and Planning Context
This chapter:
- summarises the legislative context for coastal hazard and climate change effects management;
- briefly describes the range of values that we ascribe to our coastline, which must be taken into account when managing coastal hazards, including land use.
3.1 Introduction
The range of land uses that can be vulnerable to coastal hazards include:
- residential and industrial activities;
- network utilities and associated infrastructure, including roads, telecommunications, water, gas etc, many of which may be 'lifelines';
- ports and ancillary activities;
- commercial activities, including tourism related retail activities;
- agricultural activities, including pastures, horticultural and arable crops, indigenous and managed forests, and associated infrastructure;
- terrestrial and coastal ecosystems, including estuaries, lagoons, and their constituent ecosystems;
- heritage and cultural sites including waahi tapu, urupa, historic buildings and other sites; and
- recreational activities, including beach access and boating facilities, including marina developments.
These are direct hazards from the coast, but indirect hazards further inland may arise, such as increased salt water intrusion affecting aquifers and ground water use. This is already an issue in the Tasman region and may occur elsewhere in New Zealand.
3.2 Relevant legislation and its context
This section summarises the legislative provisions relevant to coastal hazards.
Further discussion on each of the legislative statutes considered is provided in Appendix 1. Examples of case law are provided in Section 7.
3.2.1 Resource Management Act 1991
The purpose of the Resource Management Act (RMA) is to promote the sustainable management of natural and physical resources. The RMA imposes a hierarchy of planning instruments [Refer to Appendix 1 for a diagrammatic illustration of these RMA instruments.] which are intended to manage 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 well-being. This requires particular attention to avoiding, remedying, or mitigating the actual or potential adverse environmental effects of activities.
The RMA recognises the significance of the coastal environment in Part II (purpose) and various other sections of the Act, as well as through the New Zealand Coastal Policy Statement (NZCPS), district and regional plans, and regional policy statements.
The principles of the RMA include 'Matters of National Importance', such as "The preservation of the natural character of the coastal environment (including the coastal marine area) ...","The protection of outstanding natural features and landscapes ...", and "The maintenance and enhancement of public access to...the coastal marine area", and also 'Other Matters', such as "The maintenance and enhancement of amenity values".
Under the RMA, regional councils are responsible for activities within the coastal marine area (defined as the area below mean high water springs (MHWS) to the 12 mile limit), whereas territorial local authorities are responsible for activities on the landward side of MHWS. Although this delineation suggests a concise management regime, coastal issues constantly cross jurisdictional boundaries, and thereby require an integrated management approach.
The RMA requires that district plans must not be inconsistent with regional plans, and that each level of authority consult with the other when preparing plans under the RMA.
There are some key issues with regard to district and regional plans that affect the consideration of climate change effects. These include:
- only district plans and regional coastal plans are mandatory. Although regional councils may prepare other plans to fulfil their functions under section 30, including controlling the use of land in relation to natural hazards, this is not mandatory [Section 65(3)(c) states that a regional council must consider the desirability of preparing a regional plan where any threat from natural hazards is likely to arise.] ;
- many controls can be used in relation to the function of avoiding or mitigating the effects of natural hazards; e.g., controls on buildings or earthworks. However, only territorial authorities (not regional councils) have the ability to use subdivision and building controls (section 31(c)); and
- if controls on building in a hazard area are contained in district plan rules, then 'existing use rights' will apply, and the reconstruction of a building which has been destroyed may be allowed. On the other hand, if controls on building in a hazard area are contained in regional plan rules then 'existing use rights' can not be relied on to reconstruct the building [McKinlay v Timaru District Council C 24/2001, refer to section 8 for case notes on this case.].
This regime works best when working agreements have been reached between regional councils and territorial local authorities, and responsibilities between these organisations have been clearly delineated. However, there is potential to improve the management of the coastal environment through amending various planning documents to recognise overlap and jurisdictional exclusivity, and reviewing daily activities.
Resource Management (Energy and Climate Change) Amendment Act
This Guidance Manual provides information on climate change effects to enable councils to implement the Resource Management (Energy and Climate Change) Amendment Act which came into effect on 2 March 2004. Under the Act, three new matters were inserted into section 7 under Part II of the RMA:
(ba) - the efficient use of energy from minerals and other sources of energy; (i) - the effects of climate change; (j) - the benefits to be derived from the use and development of renewable energy.
These changes provide stronger direction so that local planning decisions better reflect New Zealand's national Climate Change Policy. For example, local authorities now need to have specific regard to the effects of climate change when making decisions under the RMA.
The NZ Coastal Policy Statement
The NZCPS is a guiding document under the RMA and is required to be considered when drafting district or regional plans, or in deciding on resource consent applications. The NZCPS advocates a precautionary approach for decisions affecting the coastal environment.
The NZCPS addresses the effects of climate change through a number of policies, in particular Policies 1.1.2 to 1.1.5 (which address features and components of natural character), 3.2.1, 3.2.2, 3.2.4 (which consider appropriate subdivision, use and development of the coastal environment), 3.3 (which addresses the precautionary approach), and 3.4 (which recognises natural hazards, and makes provision for avoiding or mitigating their effects). All of these policies are pertinent to the assessment of response options to coastal hazards, including sea level rise, and other climate change induced hazards.
The NZCPS is currently under review. Hence any reference in this Guidance Manual to specific policies may be subject to change as part of that review.
3.2.2 Building Act 1991
The Building Act (BA) addresses building work in the interests of ensuring the safety and integrity of the structure through its construction and subsequent use (as distinct from 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)).
Most buildings require a land use consent under the RMA as well as a building consent under the BA. If controls are imposed under both the RMA and the BA, the more stringent control prevails.
The BA raises questions of whether the land "is likely to be subject to erosion, avulsion, alluvion, falling debris, subsidence, inundation, or slippage"; or whether the works are likely to "accelerate, worsen, or result in erosion, avulsion, alluvion, falling debris, subsidence, inundation, or slippage of that land or any other property". Under the BA (section 36) the existence of these natural hazards can be noted on the title of a property.
The theme throughout RMA and BA case law appears to be that although district councils can exercise some judgement about whether to allow a subdivision or development, councils cannot ignore responsibilities for avoiding or mitigating effects of natural hazards in favour of reliance on controls under the BA. The RMA process is important because its outcome will generally decide whether a building can be sited in the relevant area in the first place. The BA (specifically section 36) is particularly important where coastal (or other) hazards are discovered after titles have been created or even after development is already established.
3.2.3 Local Government Act 2002
The Local Government Act (LGA) outlines administrative and management responsibilities for regional and district councils, including matters such as land management, utility services, recreation assets, transportation and the associated provision of services.
The LGA requires stopped roads along the margins of the coast (along MHWS) to be vested in Council as esplanade reserves. The LGA also establishes the means by which territorial local authorities 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)'.
Community planning is a cornerstone of the LGA, with the requirement to prepare Long Term Council Community Plans (LTCCP). There are also specific consultation requirements when preparing these plans, or bylaws under the Act. This has particular significance for coastal strategies, or other management plans that are adopted as part of the response to coastal hazards, including climate-induced coastal hazards. These strategies and plans can be prepared to meet some of the requirements, particularly the consultative requirements of LTCCP's.
3.2.4 Civil Defence Emergency Management Act 2002
The Civil Defence Emergency Management Act 2002 (CDEMA) 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 coordination across a wide range of agencies, recognizing that emergencies are multi-agency events; and
- focus on reduction, readiness, response and recovery.
The CDEMA requires that a risk management approach be taken when dealing with hazards. In considering the risks associated with a particular hazard, both the likelihood of the event occurring and its consequences must be considered. The CDEMA is largely an enabling mechanism, that can complement both the BA and RMA. In particular, integration between regional and district councils is achieved with the formation of Civil Defence and Emergency Management (CDEM) Groups comprising representatives from each of the territorial local authorities and the regional council within a region. The CDEMA (Section 17(1)) outlines the functions of a CDEM Group in relation to relevant hazards and risks. These include:
(i) identify, assess, and manage those hazards and risks;
(ii) consult and communicate about risks; and
(iii) identify and implement cost-effective risk reduction..."
The CDEMA (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 [Section 49(2) of the CDEM Act]. The CDEMA therefore anticipates that regional and territorial authorities will cooperate in the management of hazards and risk, including coastal hazards.
3.2.5 Reserves Act 1977
The Reserves Act (RA) 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 most government and local purpose reserves).
While the RA 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 RA (e.g., 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 TLAs, 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 it does not refer to hazards. There is some debate whether managing an esplanade reserve for the purpose of hazard reduction 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.
3.2.6 Public Works Act 1981
The Public Works Act (PWA) 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.
3.3 Uses of coastal areas, values and perceptions
This section briefly summarises the key values and the significance of the coastal environment. Climate change and the effects on coastal hazards have the potential to have an impact on any of these uses, values and perceptions. They should therefore be borne in mind in any decision-making process.
The RMA requires the protection of the natural character of the coastal environment and the protection of significant values and perceptions for the cultural, social, and economic well-being of people and communities. It also requires that the actual and potential adverse effects due to, for example, coastal hazard management, are avoided, remedied or mitigated.
In each case, values and perceptions contribute to the use and enjoyment of the coastal environment, so the protection of significant values and perceptions provides for the cultural, social, and economic well-being of people and communities.
3.3.1 Natural character
The natural character of an area is derived from natural elements and features, including the dynamic functioning of the physical coastal processes, the presence of indigenous vegetation along the coastal margin, and unmodified coastal landforms (e.g., cliffs and beaches) [Refer to section 6(a) of the RMA and Policies 1.1.1 to 1.1.5 of the NZCPS 1994.]. Natural landscapes, features and ecosystems (considered below) are all components of natural character. Although natural character is defined by the presence of natural elements, even where human activities have modified a landscape, its natural character is not necessarily destroyed. The assessment of natural character will always be subjective, and relies on the views of the community.
3.3.2 Landscapes and seascapes
Natural features comprise landforms and geological sites. They record and are formed by past and present geological and geomorphological processes and give the coastal environment its physical form and identity. They are also of visual importance, being key elements in the coastal landscape, and contribute to the recreational and amenity values of the coast.
The visual and scenic qualities of coastal landscapes contribute to amenity, recreational, and tourism values, enhancing the social and economic well-being of the community. Landscapes are not only important for their scenic qualities but also as representative examples of landscape heritage and their scientific significance [Refer to section 6(b) of the RMA and Policy 1.1.3 of the NZCPS 1994.].
3.3.3 Ecosystems
The range of habitats created by the combination of natural coastal features supports a rich array of terrestrial and marine species. The continued health of coastal ecosystems, and in particular indigenous vegetation and habitats of indigenous fauna [Refer to section 6(c) of the RMA and Policy 1.1.4 of the NZCPS 1994.] is a fundamental prerequisite for maintaining the life-supporting capacity and the quality of the coastal environment. Maintaining biodiversity is a national priority.
Natural features and ecosystems also contribute towards the natural character of an area.
3.3.4 Intrinsic values
The intrinsic values of ecosystems can result from biological and genetic diversity, or characteristics that determine an ecosystem's integrity, form, functioning, and resilience [Refer section 7(d) of the RMA]. These values can be defined as those aspects of ecosystems (and their constituent parts) which have value in their own right.
3.3.5 Coastal matters of significance to Tangata Whenua
The coastal marine area and associated resources comprise some of the most important taonga to Maori. The well-being of the coastal marine area and associated resources, and the ability to use, develop and protect such resources according to Maori culture and traditions is fundamental to all aspects of Maori well-being. Accordingly it is recognised by Tangata Whenua that all of the coast has characteristics of special spiritual, historical, and cultural significance to them [Refer to section 6(e) of the RMA and Policies 2.1.1 to 2.1.3 of the NZCPS 1994.].
3.3.6 Public access
At the time of preparing this Guidance Manual, the Government is reviewing the issue of ownership of the foreshore and seabed, and access to it. It is proposed that most of the coastal marine area remains generally available for free public use and enjoyment.
While structures or activities along the landward margin of the coast often enhance access for particular users, they may also result in obstruction or loss of access to, within, or along the coast for other users. Likewise, the provision of coastal 'buffer' reserves may also create expectations of continued access. Coastal buffer reserves will contribute to public access, but may over time disappear as they serve their primary function.
3.3.7 Cultural heritage
The historic significance of New Zealand's coastal environment as trading ports, whaling stations, historic settlements etc reflects the cultural heritage [Refer to section 7(e) of the RMA and Policies 3.1.1 to 3.1.3 of the NZCPS 1994.] of the coast. Historically the coastal environment has been extensively modified by human influences, making cultural heritage an important element in the character of the coastal environment. Many cultural heritage sites, buildings, places or areas in the coastal environment are under threat of being compromised or lost through increasing pressure for subdivision, use and development or through natural processes of erosion or inundation.
3.3.8 Amenity
Amenity values [Refer for example to Section 7(c) of the RMA] are the physical qualities and characteristics of an area. These include urban form (building design, parks, infrastructure, and other physical resources), and those features that contribute to pleasantness, aesthetic coherence, and/or cultural and recreational attributes of an area. Amenity values are almost always subjective, and like natural character, will depend on the views of the community.
3.3.9 Land use
The use of an area, either existing or potential, has a strong influence on its perceived value. Areas that are already developed or are highly used by the community may be under added pressure for protection from coastal hazards, including any increased hazard brought about by climate change. Already developed areas are the most difficult to manage in terms of finding environmentally, socially and economically acceptable and practicable protection mechanisms.
The level of development also determines values and perceptions of the coast. These values should be identified in regional and district plans and policy documents with the future development implications of land use, in sufficient detail to guide planning decisions. Assets within areas that are highly used often carry expectations of continued protection on account of the value of land that is under threat.
Areas that are not subject to high levels of development are often valued for ecological or other 'natural' reasons. Areas that may be considered to be 'undeveloped' by some sectors of the community may have high agricultural or other values, either on a district basis or on an individual economic farm unit basis, depending on the mix of climatic and topographic conditions on the unit. Undeveloped areas can also be under significant pressure to be developed. In such cases, land use planning can be affected by expectations to capitalise on the possible economic value of the land.
The range of response methods applicable for both developed and undeveloped land is considered further in Section 5 of this Manual.
