Contents

Executive Summary

Chapter 1: Introduction

Chapter 2: Projections of Future New Zealand Climate Change

Chapter 3: Relationship to Current Climate Variability and Change

Chapter 4: Effects on Local Government Functions and Services

Chapter 5: Developing the Scenarios

Chapter 6: Risk Assessment

Chapter 7: Integrating Climate Change Risk Assessment into Council Decisions

Glossary

References

Appendix 1: General Methodology for Climate Change Effects and Impact Assessment

Appendix 2: Scaling to Full IPCC Range of Emissions

Appendix 3: Further Details of Projected New Zealand Climate Change

Appendix 4: An Example of the Preliminary Scenario Method for Extreme Rainfall

Appendix 5: Climate Change in Plans - Checklist for Contents

Chapter 7: Integrating Climate Change Risk Assessment into Council Decisions

7.1 Introduction

Climate change considerations are unlikely to drive or initiate local government action on their own, but they may modify an outcome through the application of risk management processes in assessing and prioritising possible responses to effects.

The emphasis in this Guidance Manual is on understanding the scope and variation of climate change, and applying risk assessment as a method to determine adaptation responses based on the risks. Climate change is relevant to a wide range of local government functions, and is another factor to consider among the range of factors that local government already takes into account in all its decision-making.

Climate change risk assessment and decision making does not take place in a vacuum, particularly within the local government context.

Climate change risk assessment and decision making does not take place in a vacuum, particularly within the local government context.

This chapter outlines the context of uncertainty and key considerations in taking account of climate change in decision-making, sets out some key concepts relating to local government's roles and responsibilities, and gives some examples of local government practice which has incorporated climate change considerations.

A key element in responding to climate change will be flexibility and responsiveness in seeking best options to respond to changes over time.

7.2 Context of uncertainty

All local government business takes place in a framework of uncertainty, but mechanisms and approaches have been developed to deal with uncertainty through all its planning and review processes.

'Best' knowledge of climate change, together with use of risk assessment procedures, can help local government prepare to help the community adapt to known climate change, and through no- and low-regrets approaches can contribute to national and international techniques aimed at reducing the causes and effects of climate change.

Climate change considerations should become one of the factors woven into many council decision-making processes. The extent to which climate change is important will depend very much on:

• the duration of the issue being addressed
• whether there is a current 'driver' (such as a major investment decision).
• the location of the issue being addressed
• the extent of the issue being addressed
• the nature of the issue being addressed.

Risk management fits comfortably into plan preparation and review processes at the stages where issues are being identified and a range of possible response options evaluated. With the advance knowledge of climate change effects, rarely should there be the need for an unplanned response to climate change.

The iterative process of plan administration, monitoring and review allows for modification of plans over time to take account of improved understanding of risks and effects associated with climate change.

7.2.1 The duration of the issue being addressed

In considering climate change issues, the period over which the decision will have effect is of fundamental importance. Generally, whenever a decision is likely to have effects that will last 30 years or more, the implications of climate change should be taken into account. Local government decisions have a range of implications in terms of time. For example:

• a decision to allow a new development area, or a coastal reclamation, is effectively permanent, as existing use rights apply unless there is community buy-back with full compensation
• a building consent assumes new structures have a life of 50 years, but many structures are intended to, or do, last much longer
• infrastructure decisions generally assume a life of 50-80years, but some can be designed to be built on a staged basis to provide extra capacity in response to climate change over time
• decisions on structures in rivers, most coastal structures, and infrastructure that involves regional council consents, have a term of 35 years or less (depending on consent conditions), but in reality their life-time may be much longer (e.g. significant bridges and infrastructure arising from the designation process, like major roading projects) and they should be recognised as near-permanent
• decisions on land care, biodiversity, and pest management strategies may be in the context of a 3, 5 or 10-year strategy, but because some decisions may have enduring consequences a long-term view may be appropriate.

It is recommended that the most reliable climate change information available at the time is taken into account in terms of the duration of the decision being made.

7.2.2 Whether there is a particular driver at present

Although it is important for local authorities to acknowledge climate change, and to include it in policy across a range of council functions, climate change considerations are particularly important when specific decisions are required. For example, it is recommended that any significant investment in infrastructure is preceded by a risk assessment which builds in climate change implications and a cost benefit analysis.

When climate change is factored into new investment decisions, the resulting asset "life-cycle" costs should be less than the additional costs from premature retirement of the asset or later unprogrammed upgrades. In some situations, the design of new infrastructure may "lock in" resource requirements in a way that makes later upgrading all but impossible.

Decisions on subdivisions and developments are driven by applications in the private sector. Councils must make decisions relatively quickly and, as Court decisions have demonstrated, these need to be made in the context of climate change effects possibly exacerbating natural hazards. If a council considers there is inadequate consideration of climate change factors in an application and that such factors are relevant, it is recommended that further information be sought.

7.2.3 The location of the issue being addressed

Some locations are more vulnerable than others to climate change effects. For example, it is recommended that all proposals in the vicinity of the coast are evaluated in terms of expected sea level rise over the next century, as well as other 'downstream' effects including increased coastal erosion, salt water intrusion, and increased flooding in the vicinity. Development in flood plains also needs to take account of the potential for reduced flood return periods and potentially greater peaks.

7.2.4 The extent of the issue being addressed

Decisions that involve a single building or a small part of an infrastructure asset (unless the latter constrains the rest of the system) are less likely to have fundamental and long-term implications than decisions that affect larger areas. The exception is where a small development has precedent value, leading to acceptance of subsequent applications.

7.2.5 The nature of the issue being addressed

Is the issue affected by a single climate parameter, or a complex issue with multiple effects and implications over time? This should show up in the risk management worksheet.

Complex long-term issues need to be identified and addressed at policy level, and decision-making carried through consistently over time.

For these sorts of issues, relatively general information may be adequate to start policy development, and information can be refined over time within a generic policy context.

For example, in planning for an urban extension, low lying coastal areas are best avoided if possible, and if flood plains are being considered, higher and more frequent floods than in the past can be assumed.

7.3 Key principles for local government

Local government actions are undertaken in the context of a range of principles set out in law, or evolved through good practice and case law.

All are relevant when dealing with climate change effects.

7.3.1 Sustainability

The concepts of sustainable development under the Local Government Act 1991, and sustainable management of an area's natural and physical resources under the Resource Management Act 2002, imply the ongoing ability of communities and people to respond and adapt to change in a way that avoids or limits adverse consequences.

Over the past decade or more, as people have become aware of climate change, the causes have been tackled at international level, with local communities encouraged to adopt no- or low-regrets responses. Such responses fit within the concept of sustainability. They involve applying adaptive responses (and sometimes limitation responses) which will not be regretted irrespective of the eventual nature and magnitude of climate change effects. Examples are a range of energy efficiency and conservation practices, forest planting, and avoidance of new development in areas already or potentially hazard-prone.

However, more recent understanding of the variability of climate change effects, and the possible implications of decisions made in a framework of uncertainty, has meant a shift to risk-based assessments of climate change effects and responses by local authorities, before decisions are made in the interests of long-term sustainability.

7.3.2 The foreseeable needs of future generations

This means taking into account the interests of future communities and the direct and indirect costs that future generations may bear as a result of decisions now being made. The concept is found in key sections of the Local Government Act and the Resource Management Act, and is the basis for international, national, regional and local responses to climate change.

Even where the need for a climate change response is not yet apparent, this principle applies. It integrates concepts of research and forecasting of trends and potential biophysical impacts, with present expectations of future community needs. It requires responsible action in the context of balancing the needs of the present with those of the future.

7.3.3 Avoid, remedy and mitigate adverse effects

This duty from the Resource Management Act applies to the preparation of plans by local authorities under that Act, every decision made under that Act, and everyone who carries out an activity or development under the Act. 'Effect' is defined to include temporary or permanent effects, present and future effects, cumulative effects over time, and potential effects of high probability, or of low probability with high potential effects. This means that through reasonable understanding and analysis of future environmental change, climate change impacts can and should be taken into account when contemplating new activities and developments.

Questions of scale and type of change, and implications in terms of specific decisions, can best be worked out through a risk assessment process taking into account permanency of the decision and anticipated future impacts. This may result in decisions to avoid future effects (such as 'no go' areas for development), or at least to mitigate them by specific design responses (such as minimum floor levels). If future remedy is to be an option (such as relocatable buildings in coastal locations) the implications for present and future owners and the community need to be clearly identified at the time of consent and conveyed into the future by some mechanism (such as consent notices on titles).

7.3.4 Precautionary approach/cautious approach

This concept is implied in the Resource Management Act (and in the New Zealand Coastal Policy Statement prepared under that Act) and directly stated in the Civil Defence Emergency Management Act 2002. It is more likely to be applied where there is a high level of scientific uncertainty and evidence to establish that the precautionary approach should be considered.

A precautionary approach is also particularly relevant where there are effects of low probability but high potential impact, such as the effects of infrequent but high flood levels in developed flood plain areas. A new provision of the Resource Management Amendment Act 2003 is the requirement for an analysis of a plan provision under section 32 to consider the risks of "acting or not acting" in a situation of uncertainty about the adequacy of information.

This is of direct relevance to addressing climate change effects in plans, as well as other situations where a cautious approach may be appropriate.

7.3.5 The ethic of stewardship/prudent stewardship/kaitiakitanga

The Local Government Act and the Resource Management Act both contain these concepts. In the Local Government Act, prudent stewardship is to be applied to the efficient and effective use of a community's resources in the interests of the district and region. In the Resource Management Act, the ethics of both stewardship under s.7(aa) RMA and kaitaikitanga under s.7(a) are applied to the wider environment.

These concepts underpin sound planning decision-making in the interests of the community, to avoid or minimise loss of value or quality over time. Their relevance to climate change relates particularly to asset management, land and watercare, biosecurity and biodiversity.

7.3.6 Consultation and participation

Principles of consultation with communities and affected people lie at the heart of local government decision-making. Consultation implies informed input into decision-making processes. For decisions likely to be influenced by climate change, those being consulted must have sufficient information to understand the likely scenarios and associated risks for their communities. Regional and local government are responsible for ensuring adequate information is available within a community for consultation processes to be effective, including the translation of international and national knowledge to local levels, with indications of degree of certainty and uncertainty.

Consultation and participation can also be used to raise awareness of risk and appropriate responses - for example flood risk and how people should respond when it happens in their locality.

7.3.7 Financial responsibility

Local government is expected to act within normal codes of financial responsibility on behalf of the community. In undertaking its own activities, particularly asset provision and management, the Local Government Act sets out requirements to identify in detail the reasons for any changes to current provision, and the cost. For infrastructure enhancements due to future effects of climate change, both evaluation of risks and the costs of different levels of service will need to be expressed in a transparent way.

7.3.8 Liability

Local government can be financially liable for decisions that are shown to have been made in the face of information which should have led to another decision. Liability might arise from misrepresentation, negligence, or responsibility under the Building Act 1991. This is a difficult area of law, and councils use a range of techniques to reduce the risk of liability. For example, where single property-based decisions are involved, instruments such as covenants or consent notices attached to titles may be used to identify risks. Such devices are not necessarily effective as they are almost completely untested in law, may not limit people's expectations of further capitalisation, and do not appear to have any effect on land values.

Larger climate-related issues, such as frequency of flooding of a developed area, are less likely to result in direct liability unless areas become uninhabitable as a result. However, community costs in enhancing or retrofitting infrastructure can become considerable, and questions of equity in relation to wider community interests also arise.

7.4 Case law

There is, as yet, little case law that is directly relevant to climate change effects and no case law as yet relating to the 2 March 2004 Resource Management (Energy and Climate Change) Amendment Act. However, several prominent cases under the RMA have acknowledged climate change, its effects and their potential extent. There is also some relevant case law that relates to local authorities' responsibilities for managing natural hazards, particularly coastal and flood hazards. Detailed case law has not yet emerged in relation to all the other potential impacts of climate change.

Case law to date helps local authorities in the following ways:

• recognising the reality of climate change
• clarifying the respective roles of regional and territorial authorities
• indicating principles of hazard avoidance generally, and in areas that are already developed
• indicating time scales over which to consider effects
• clarifying the relationship between resource and building consents.

7.4.1 Recognising the reality of climate change

In Environmental Defence Society Incorporated and Taranaki Energy Watch Incorporated vs Taranaki Regional Council (Decision A184/2002), the Court summarised its understanding of 'the enhanced greenhouse effect' and its consequences as follows:

"The preponderance of scientific evidence indicates that the temperature of the earth's surface has risen over the past 100 years. Most of the warming over the past 50 years is a result of greenhouse gas emissions caused by human activity.

Climate models predict that greenhouse gas emissions will continue to increase atmospheric temperatures. The rise predicted for the next 100 years is likely to be more rapid than any natural variation over the past 100 years.

Climate change will increase the frequency of some extreme weather and climate events such as heat waves, droughts and floods. These changes are likely to influence native ecosystems, agriculture, coastlines, and our economy, infrastructure, health and security. It is anticipated the adverse effects will outweigh the positive."

This case looked mainly at the request for limitation or offset of discharges of CO₂ set out in the appeals, and did not consider adaptive responses.

7.4.2 Respective roles of regional and territorial authorities

The regional policy statement is the primary document for environmental management in the region and should clarify the respective roles of regional, city and district councils in addressing natural hazards, including hazards which are exacerbated by climate change. District plans cannot be inconsistent with regional policy statements or regional plans.

The primacy of regional councils in addressing hazards of regional significance was tested in Canterbury Regional Council vs Christchurch City Council (12995 NZRMA 452) where the Court of Appeal found that the regional council had "the power to prohibit or restrict activities such as residential occupation and the erection of building in the Waimakariri Flood Plain, for the purpose of avoiding or mitigating natural hazards".

7.4.3 Indicating principles of hazard avoidance

In Bay of Plenty Regional Council vs Western Bay of Plenty District Council (Decision A27/02), the Court took into account climate change and sea level rise effects and noted that voluntary assumption of risk by private property owners did not abrogate the Council's responsibility of controlling the use of 'at risk' land for the purpose of avoiding or mitigating natural hazards. The Court found that "failure to manage known actual and potential effects of natural hazards ... under the (Resource Management) Act's regime would not, in our view, be consistent with the legislative purpose of sustainability".

However, in Opotiki Resource Planners vs Opotiki District Council (Decision A15/97), the Court determined that existing levels of development and existing mitigation (including stopbank protection works and an ongoing scheme directed at their maintenance and improvement) in an area should be taken into account. The appeal related to an existing modern building in the main shopping street of Opotiki, which was proposed to be converted to health centre use. The site had recognised susceptibility to flood risk, taking into account sea level rise, and aggradation of riverbeds over time, and there was lack of a guarantee that stop banks would not fail during major flood events. The Court made broad comments as follows:

"Much of the evidence we heard was really pertinent to the basic question whether the location of the town itself is appropriate on account of the flood risk element, despite the measures taken to protect the town. It lies well beyond the realm of this appeal to draw so bold a conclusion on an 'across the board' footing, and then go on to illustrate such a finding by rejecting the proposal."

7.4.4 Time scales for consideration of effects

In Bay of Plenty Regional Council vs Whakatane District (Decision A003/94), the sea level rise prediction of the IPCC were discussed. The Court decided that because of uncertainty, the prediction based on a time horizon as at 2050 AD should be adopted. The Court noted:

"We accept ... that it is notoriously difficult to make a reliable prediction as to the sea level change that will affect the subject land as far ahead as 2050, let alone beyond that. Nevertheless, we consider that the best prediction currently available of the likely sea level rise that will affect the country generally as at 2050 should be adopted."

A key aspect of this decision is that the Court took into account the state of knowledge at the time, and also, in the absence of detailed locality information, chose to adopt the New Zealand average. This case does not preclude an updated and more specific approach as knowledge improves.

In later cases in the same area, Bay of Plenty Regional Council vs Western Bay of Plenty District Council (Decision A27/02) and Skinner vs Tauranga District Council (Decision A141/02), the Court applied a 100-year risk period, taking into account changed climate conditions and sea level rise. The correct period should be decided on a case by case basis, based on the risk identified and its planning context.

7.4.5 Relationship between resource and building consents

In Bay of Plenty Regional Council vs Western Bay of Plenty District Council (Decision A27/02) the Court considered whether controls over the development of hazard prone land should be left to building consent stage. It concluded that both the RMA and the Building Act should be viewed as 'both individually and in combination', assisting to serve the public good. The Court decided that:

"Each in fact serves its particular purpose - that under the RMA of promoting the sustainable management of resources in the context of the wide environmental perspective that the Act embraces; and that under the Building Act by focusing on the integrity and safety of buildings wherever they are located. Logically, any relevant controlling provisions that govern a development proposal under the holistic management regime of the RMA will generally fall to be invoked initially, with the application of controls under the Building Act following as appropriate in terms of that Act."

Section 106 of the Resource Management Act has been redrafted in the Resource Management Amendment Act 2003, to clarify that subdivision decisions addressing hazardous situations can take into account existing and future structures on the land, subsequent uses of the land and legal and physical arrangements.

7.5 Local government management and planning responsibilities

Both regional and territorial authorities have responsibilities and duties relating to natural hazards, and so to climate change, under the Resource Management Act and other legislation. Regional councils have a primary role at regional level in helping territorial authorities by providing policy guidance, information and hazard assessment data. Regional councils, through regional plans, have the ability to address land use issues and existing use rights in matters of regional significance (including matters such as significant exposure to flood risk). Councils can delegate responsibilities relating to risks and hazard management to the authority most appropriate to address the issue. It is important that regional and territorial authorities work together in planning for both the negative and the positive effects of climate change.

Central government has made it clear that control of the emissions which contribute to climate change are a matter for central government, rather than local government management (e.g. Inquiry into the Role for Local Government in Meeting New Zealand's Climate Change Target, November 2001). There may be exceptions, where the actions of a council to resolve another issue also has beneficial effects on reducing emissions. For example, improved public transport systems and compact urban form intended to provide improved urban living conditions, also may have the effect of limiting fossil fuel use.

Local government has a wide range of responsibilities which relate to adaptive response to climate change. These responsibilities are formalised through a range of plans, prepared in different statutory contexts and along different time lines.

The key plans in which climate change implications should be considered are set out in Appendix 5, along with a checklist of possible components for each. Note that the variability of potential climate change effects (as well as councils' prioritisation of different effects) around the country means that not all plans will provide specifically for climate change. The important thing is that councils and communities are at least alert to the possible implications of climate change, and take the changes into account as part of plan preparation and review and other decision-making processes.

In introducing objectives, policies, rules or other methods into a policy statement or plan, the Resource Management Act requires that a section 32 analysis - consideration of alternatives, benefits and costs - of the provision must be undertaken. A new addition to the requirement in the Resource Management Act 2003 is that councils must consider the implications of "the risk of acting or not acting" of there is uncertain or insufficient information about the subject matter of the provision.

7.6 Existing use rights

Under the Resource Management Act, there are no existing use rights for structures in rivers and lakes or in the coastal marine area (except for reclamations), or for water takes and discharges. All consents are given for specific terms. Note, however, that once set the term of a consent cannot be changed. Reviews of conditions by a local authority can require changes to mitigate effects, but cannot extinguish the rights granted with the consent.

Land uses, if established through permitted activity status under a district plan, or through a consent, have existing use rights and are thus effectively permanent, unless a rule in a regional plan provides otherwise (see sections 9(3) and 20(2) of the Resource Management Act) However, the wording of Section 10 subsection (3) of the Act, which also provides for existing use rights, incorporates the ability to consider the effects of a use or development whenever an alteration is proposed. This may mean for example, that building upgrades or extensions in hazard areas may not be able to rely on existing use rights.

It is recommended that councils consider carefully the implications of permitted activities in a district plan, the terms of consents granted and the extent of existing use rights, in circumstances where hazards may be exacerbated or new hazards may occur within the lifetime of a development or new activity.

7.7 Resource consent decisions

It is recommended that any decision that will have an implication for more than about the next 30 years is assessed for its climate change implications.

For many developments, the district plan will provide permitted activity status, and a consent will not be needed. Subdivisions almost always require a consent of some type, and conditions can be applied that may address any climate change risk factors. [The Resource Management Act in sections 106 and 220 makes provision for hazard avoidance or mitigation where subdivision (and future development on new subdivisions) is concerned.]

Where regional plans require consents to be obtained (such as for buildings in identified hazard areas, or for all structures in rivers or the coastal marine area), or the activity needs a land use consent in terms of a district plan, climate change implications should be taken into account. Where a regional plan specifically controls buildings in hazard areas, this is a very powerful tool as existing use rights are extinguished.

Climate change impacts may be particularly relevant for:

• subdivisions and developments in floodplain areas, close to rivers, or within or over river channels
• subdivisions and developments close to or within the coast (cliffs, beaches or low-lying areas)
• subdivision and developments on or close to steeper hillsides (including at the top and bottom of the hill)
• lifeline infrastructure components in the above locations
• subdivision and developments that rely on rain water supply
• Existing uses that rely on rain water, river or ground water abstractions to provide water.

Evaluations need to take into account possible effects on access routes and any on-site infrastructure, including wastewater management systems and water supply.

Plans should specify information which must be provided with applications for subdivisions or developments that are likely to be affected by hazards, including the potential implications of climate change.

Decisions made without adequate information, or in the face of information indicating climate-related hazards, may make the council ultimately liable for costs. Liability might arise from misrepresentation, negligence or responsibility under the Building Act 1991.

7.8 Building consents

The Building Act 1991 provides the framework for building consents. The responsibilities lie with district and city councils, including for structures in the coastal marine area which are technically outside the district. The Building Act also includes provisions relating to LIMs (Land Information Memoranda) and PIMs (Project Information Memoranda). LIMs, in particular have become key elements for conveying site and risk information to people with interests in land. Information provided when a LIM is sought may become the basis of liability actions. District and city councils need to periodically update their LIM database in response to any new information on climate change that can be identified as requiring a modification or response to normal building practice (e.g. new coastal hazard or flood frequency information). LIMs provide a more immediate and detailed source of information than district plans, and allow for individual decisions on whether to proceed with purchase of land or a specific development application.

Generally, the Resource Management Act will set the framework for the building consent. For example, if an area is notified as hazard prone in a plan, a resource consent for development may still be obtained but it may include conditions relating to the development. The situation is reviewed at building consent stage, and a further range of conditions may be attached to meet the Building Act's requirement to address safety and integrity of the structure. Building consents must be refused if land is unstable, unless the work will not increase the instability.

As climate change is known about in advance, it is recommended that plans under the Resource Management Act provide the relevant decision-making context. An appropriate response to climate change should not have to wait until building consent stage.

Building codes are reviewed and updated over time at national level for local use. Response to some elements of climate change which are not locality or site-specific, such as increased temperature and more extreme winds, would be expected to be developed through codes, rather than applied to specific building consents.

7.9 Research, monitoring and reporting

Section 35 of the Resource Management Act provides councils with responsibility for gathering information and undertaking or commissioning research to the extent necessary to carry out its functions. Councils also need to keep available and make public research on natural hazards. Under the same section, councils are also responsible for monitoring the state of the whole (or any part) of the environment "to the extent that it is appropriate, to enable the local authority to effectively carry out" its Resource Management Act responsibilities. As well as this direct responsibility, monitoring conditions, where consent-holders provide ongoing information relating to specific resource consents, can contribute to overall environmental monitoring.

Most regional councils undertake extensive monitoring of river systems and groundwater, and coastal areas. Several have long-term monitoring programmes relating to sea level change. Some councils also monitor knowledge about climate change and climate change effects.

The availability of such information helps provide a baseline. Over time it will help build up a picture of change in a district or region and will contribute to a better national understanding of trends affecting the whole of New Zealand. This information gives a basis for ongoing adaptation to change.

7.10 Some examples

Because of the lack of real examples where local authorities have worked through the whole process of investigation and decision-making relating to climate change, this section gives hypothetical examples of how such decisions may proceed.

7.11 Best practice guidance

It is recommended that:

• Risk assessment procedures are used to evaluate the implications of elements of climate change in terms of risk to communities and community assets.
• Risks are then prioritised, and response options evaluated in terms of costs and benefits to assist a wide range of decision making.
• Because climate change effects are going to occur over time, and risks which are slight now will increase, responses can and should be planned in advance. Elements of climate change should be built into most council planning, depending on risk assessment and priorities.
• Monitoring be undertaken to help build up a picture of change over time, and contribute to more accurate future predictions.

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