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7 Integrating climate change risk assessment into council decisions

Disclaimer

Chapter 7 has been prepared for the Ministry for the Environment by external contractors, as noted on page ii of this document. To the extent that this guide deals with legal matters, it does not necessarily represent the views of the Ministry for the Environment and readers should not rely on it as legal advice.

Key points:

  • Risk assessment procedures (see chapter 6) provide a method to evaluate the implications of elements of climate change, in terms of risks to communities and community assets. The risks can then be prioritised, and response options evaluated in terms of costs and benefits to assist a council in making a wide range of decisions.

  • In applying risk assessment in local government decision-making, keep in mind also:
    • the range of established principles influencing local government decisions, which relate to environmental and financial responsibility and the needs of the future
    • the growing recognition of climate change effects in planning case law
    • uncertainty, which can lead to a range of responses – from ‘avoid if possible’ for issues that are long-term and have significant implications, to ‘manage’ for shorter-term issues with smaller-scale implications.
  • It is essential to recognise that climate change effects are going to occur, over time, and that risks that are slight now will increase. Thus, 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 undertaken by councils helps build up a picture of change over time, and contributes to more accurate future predictions.

7.1 Introduction

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

The emphasis in this Guidance Manual is on understanding the scope and variation of climate change, and using risk assessment procedures 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 take into account among the range of factors that local government already considers 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.

This chapter outlines the uncertainty associated with climate change and key considerations in taking account of climate change in decision-making. It sets out some important concepts relating to local government’s roles and responsibilities, and gives some examples of local government practice into which climate change considerations have been incorporated.

A key element in adapting to climate change will be ongoing flexibility and responsiveness in seeking the best response options.

Box 7.1: Is Climate Change an Issue for the Region or District?

Many councils have taken first steps towards integrating climate change into plans through policy and rules, and decision-making on specific consent applications, but there is still a great deal of uncertainty about how and when to take notice of and act on projected climate change effects.

In addition to the other material in this Guidance Manual, the following list can assist councils in thinking about climate change:

  • What are the potential climate change issues in the region, city or district?

  • For any issue, has the council done a risk screening assessment that indicates that there are risks that require a response?

  • What does the most recent scientific information show about likely climate changes in the region or district?

  • What are the most plausible scenarios for the region, city or district?

  • Is a more detailed evaluation of risk warranted?

  • Look at what others nearby are doing. Is the regional council advocating action? Are district or city councils within the region identifying issues or already taking action? What can you learn from them?

  • What are the most appropriate methods to respond to risks?
    • policy responses – where and how?
    • community education and/or awareness-raising?
    • changes in engineering practices and standards?
    • plan rules – setbacks, floor levels, hazard lines, down-zoning?
    • land purchase?
    • monitoring?
    • budget implications for the Long-term Council Community Plan?
  • Should your council be working with others to ensure consistency of approach?

  • Some specific legislation, such as the Land Transport Management Act 2003, requires consideration of greenhouse gas outputs. Are they a relevant consideration for your council?

7.2 Context of uncertainty

All local government business takes place in a framework of uncertainty. Nevertheless, local government has developed a range of mechanisms and approaches for dealing 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 particular ‘driver’ at present (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 of knowledge about 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 plans to be modified over time to take account of improved understanding of risks and effects associated with climate change.

Box 7.2: Rules controlling discharge of greenhouse gases

Since 2004, regional councils have been given specific direction under sections 70A and 104E of the Resource Management Act 1991 that, when making rules controlling discharges of greenhouse gases to air or considering applications for such discharges, they are not to have regard to the effects of such discharges on climate change. The only exception is in situations where the use and development of renewable energy enables a reduction in the discharge into air of greenhouse gases. Greenhouse gas discharges are managed primarily through central government mechanisms, and only indirectly by local government through plans and policies developed and implemented under the Resource Management Act and actions, under other legislation.

7.2.1 The duration of the issue being addressed

In considering climate change issues, the period over which a decision will have effect is fundamentally important. 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 in decision-making. Local government decisions have a range of implications in terms of time. For example:

  • A decision to allow a new development area, a renewable energy generation project or a coastal reclamation is effectively permanent, as existing use rights apply unless there is community buy-back with full compensation.

  • While the former (1991) Building Act was based on an assumed building life of 50 years, the current Building Act (2004) does not include an assumed building life. Many structures are intended to, or do, last a century or more.

  • Infrastructure decisions generally assume a life of 50–80 years, but some infrastructure can be designed to be built in stages to enable responses to climate change to evolve 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). However, in reality their lifespan may be much longer (eg, significant bridges) 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. However, some decisions may have enduring consequences, so a long-term view may be appropriate.

The most reliable climate change information available at the time should be taken into account in terms of the duration of the decision being made.

Box 7.3: Provisions for forest planting –example

Tasman District’s Resource Management Plan includes provisions that limit the extent of forest planting in the headwater of specified catchments, to protect aquifer recharge for water supply for the horticulture areas downstream. A range of possible future weather scenarios (but not specifically climate change scenarios) were built into the studies, which led to the plan provisions. Climate change scenarios were omitted in part because of lack of reliable relevant information at the time, but also because it was considered that the relatively short 30-year tree harvesting cycle would allow for modification of provisions over time as climate change information improved.

This example is explained fully in Wratten v. Tasman District Council (Decision W008/98).

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 come particularly to the fore when specific decisions are required. For example, any significant investment in infrastructure should always be preceded by a risk assessment that 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 virtually impossible.

Decisions on subdivisions and developments are largely driven by applications from the private sector. Councils must make decisions relatively quickly and, as court decisions have demonstrated, decision-making must take into account climate change effects, and that these might exacerbate natural hazards. If a council deems that inadequate consideration has been given to climate change factors in an application and that such factors are relevant, further information should be sought in preference to making a hasty decision.

As regional and territorial authorities increasingly plan for growth, projected long-term climate change effects need to be taken into account when the authorities are identifying suitable areas for future development. The process may include not allowing areas likely to experience increased risk of flood events to be sites of future development, or ensuring that new areas will have adequate water supply in the long term.

Box 7.4: Modifying wastewater system design – example

North Shore City experienced in 1997 a significant number of beach pollution events linked to an unusually high number of wet weather overflow events from its wastewater system.

Community concern led to a detailed analysis of what would be needed to modify the wastewater system so that a performance level of two overflows per year in 2050 could be achieved (taking into account increased population and other factors).

Scenarios based on historic rainfall information, and predictions of increased frequency of intense rainfall events due to climate change, were applied to designing the modifications, and a risk and cost–benefit analysis undertaken.

The cost analysis showed that meeting the desired level of service by 2050 in the face of climate change effects would add $100 million to the cost, which had been estimated at $260 million when climate change effects were not considered. The community chose to accept the increased risk of events due to climate change (and, therefore, a long-term reduced level of service) rather than meet the additional cost of the desired level of service.

However, reviews of the system will incorporate consideration of climate change effects every 3–5 years, and ‘future proofing’ decisions on different components of the system (such as extensions into new development areas) will be made when and where opportunities or needs arise.

7.2.3 The location of the issue being addressed

Some locations are more vulnerable than others to climate change effects. For example, all proposals in the vicinity of the coast should be 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 possibility of reduced flood return periods and greater flood peaks.

Box 7.5: Flood protection versus limiting urban development – example:

The value of development and the social and economic implications of a major flood in the Hutt Valley are so significant that the community has made decisions to mitigate effects through investment in flood protection rather than through limiting the intensity of development. One of the factors driving increased robustness in flood protection was the expectation of climate change effects. Although there was inadequate information on possible climate change impacts for modelling purposes when the decisions were made, the community chose a flood return period of 400 years as the basis for flood protection design, knowing that the level of protection was likely to decrease over time owing to climate change impacts.

The Hutt Valley 2001 Flood Plain Management Plan provides detailed information on design considerations and levels of protection, taking into account climate change.

7.2.4 The extent of the issue being addressed

Decisions that involve for example 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 (eg, an urban growth area). The exception is where a small development has precedent value, leading to acceptance of subsequent applications.

Box 7.6: Exceeding an existing use right – example

Nikau Bay (Marlborough) is an example given in chapter 6. Sea-level rise will exacerbate the effects of wave action and storm surges. There are a number of dwellings close to the mean high water springs tide level in the settlement. Most are modest traditional holiday houses or small permanently occupied dwellings, but a major upgrade of one has been allowed. The change exceeds what could have reasonably been accepted as an existing use right (given that the ‘effects’ of the upgrade in section 10 of the Resource Management Act can include climate change effects). While one example may seem insignificant, the greatly extended, now high-valued dwelling may have a precedent effect, leading other property owners to put pressure on the council for all dwellings in similar locations to be upgraded. If future sea-level rise has not been taken into account in any of the relevant decisions, the council may find itself liable for future damage to expensive dwellings.

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? The answer to this question should show up in the risk management worksheet. Complex long-term issues need to be identified and addressed at the policy level, and decision-making must be carried through consistently over time. Relatively general information may be adequate to start policy development, and information can be refined over time as policies are reviewed and revised.

For example, in planning for an urban expansion, if there are options, low-lying coastal areas should be avoided; and, if flood plains are being considered, higher and more frequent floods than in the past should be assumed.

Box 7.7: Identifying coastal hazard areas – example

Napier City Urban Growth Strategy 1992 (and a review in 1996) identified sea-level rise due to climate change as a hazard with consequences in terms of urban sustainability. The IPCC ‘business-as-usual’ scenario was used to predict the amount of sea-level rise and the consequent coastal erosion and flooding.

Since 1996, the council has undertaken several successive studies of coastal hazards and has imposed and reviewed coastal hazard areas north of the city, within which future development is to be strictly limited.

Sea-level rise is just one of the factors being taken into account in analyses of long-term erosion trends in the areas. However, the issue is recognised and accounted for in a risk-based planning approach.

The city’s Asset Management Plans for infrastructure also note possible effects of climate change. Because of the low-lying nature of much of the city area, all systems are pumped, and so groundwater level changes as well as increased flood frequencies could result in additional costs. The city regularly reviews its suite of plans, taking into account updated information on climate change.

7.3 Key principles for local government

Local government actions are undertaken in the context of a range of principles that are set out in law, or have evolved through good practice and case law. All must be kept in mind when dealing with climate change effects.

7.3.1 Sustainability

The concepts of sustainable development under the Local Government Act 2002, and sustainable management of an area’s natural and physical resources under the Resource Management Act 1991, imply the ongoing ability of communities and people to respond and adapt to change in a way that avoids or limits adverse consequences. Since 2004, the Resource Management Act has included a requirement that people making decisions in terms of the Act must have particular regard to the effects of climate change.

Over the past decade or more, during which people have become aware of climate change and its causes and effects, the causes of climate change have been tackled at international level. At the same time, local communities have been encouraged to adopt no- or low-regrets responses to climate change. Such responses fit within the concept of sustainability. They involve applying adaptive responses (and sometimes limitation responses) that 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 that are 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, prior to decisions being made in the interests of long-term sustainability.

7.3.2 The reasonably 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 made in the present. The concept is found in key sections of the Local Government Act 2002 (section 14) and the Resource Management Act 1991 (section 5), and is the fundamental 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 or mitigate adverse effects

The Resource Management Act 1991 imposes a duty to avoid, remedy or mitigate adverse effects which applies to the preparation of plans by local authorities under that Act, to every decision made under that Act, and to 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 (section 3). 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 conditions of land-use consents or consent notices on titles at the time of subdivision).

7.3.4 Precautionary/cautious approach

A precautionary approach is implied in the Resource Management Act 1991 (and in the New Zealand Coastal Policy Statement prepared under that Act) and directly stated in the Civil Defence Emergency Management Act 2002 (section 7). Such an approach requires an informed but cautious approach to decisions where full information on effects is not available during decision-making, particularly when there is a high level of uncertainty and where decisions are effectively irreversible.

A precautionary approach is also particularly relevant when there is a low probability of effects but those effects have high potential impact, such as the effects of infrequent but high flood levels in developed flood plain areas. Section 32 of the Resource Management Act requires an evaluation of a plan provision to consider the risks of ‘acting or not acting’ if there is uncertain or inadequate information.

This is directly relevant 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 2002 and the Resource Management Act 1991 both contain these concepts. Section 14 of the Local Government Act requires a local authority to apply prudent stewardship and the efficient and effective use of its resources in the interests of the district or region. Decision-makers under the Resource Management Act are required to have particular regard to kaitiakitanga and the ethic of stewardship in terms of the wider environment.

The principle underpins sound planning decision-making in the interests of the community, to avoid or minimise loss of value or quality over time. Its relevance to climate change relates particularly to asset management, landcare 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 relevant to climate change, those being consulted must have sufficient information to understand the likely scenarios and associated risks for their communities. Ensuring that adequate information is available within a community for consultation to be effective is a responsibility for regional and local government, and will involve 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 according to normal codes of financial responsibility on behalf of the community. The Local Government Act 2002 sets out requirements for local government to identify in detail the reasons for any changes to a current provision, and the associated cost, when it is undertaking its own activities, particularly asset provision and management. For infrastructure enhancements to successfully anticipate the 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 that should have led to another decision. This is a complex 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 particularly effective, as they are almost completely untested in law, may not limit peoples’ 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 a small but growing amount of case law that is directly relevant to climate change effects. Prominent cases under the Resource Management Act 1991 have now 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 assists local authorities by:

  • recognising the reality of climate change

  • clarifying the respective roles of regional and territorial authorities

  • indicating principles of hazard avoidance, generally, and in areas which are already developed

  • indicating time scales over which to consider effects

  • clarifying the relationship between resource and building consents

  • adopting climate change information and a cautious approach.

7.4.1 Recognising the reality of climate change

In Environmental Defence Society Incorporated and Taranaki Energy Watch Incorporated v. 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 that are exacerbated by climate change. District plans must give effect to regional policy statements or regional plans.

The primacy of regional councils in addressing hazards that are of regional significance was tested in Canterbury Regional Council v. Christchurch City Council (1995 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’. In Canterbury Regional Council v. Banks Peninsula District Council (1995 3 NZLR 189) the Court of Appeal confirmed:

the control of the use of land for the avoidance or 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.

7.4.3 Indicating principles of hazard avoidance

In Bay of Plenty Regional Council v. Western Bay of Plenty District Council (Decision A27/02, 8 February 2002), 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 v. 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 into a health centre. The site had recognised susceptibility to flood risk, taking into account sea-level rise, and to aggradation of riverbeds over time, and there was lack of a guarantee that stopbanks 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 v. Whakatane District Council (Decision A003/94), the sea-level rise predictions of the IPCC were discussed. The court decided that because of uncertainty, the prediction based on a time horizon of 2050 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 v. Western Bay of Plenty District Council (Decision A27/02), Skinner v. Tauranga District Council (Decision A141/02), and also in Fore World Developments Limited and Bayside Villas Limited v. Napier City Council (Decision W29/2006), the court applied a 100-year risk period, taking into account the potential effects of future changed climate conditions as well as sea-level rise.

7.4.5 Relationship between resource and building consents

In Bay of Plenty Regional Council v. Western Bay of Plenty District Council (Decision A27/02), the court considered whether controlling the development of hazard-prone land should be left to building consent stage. It concluded that both the Resource Management Act 1991 (RMA) and the Building Act 2004 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 was amended by the Resource Management Amendment Act 2003, to provide councils with discretion to refuse to grant subdivision consents in respect of hazard-prone land and discretion to grant such consents with conditions addressing hazardous situations. Decisions may take into account existing and future structures on the land, subsequent uses of the land, and legal and physical arrangements.

7.4.6 Climate change information and the cautious approach

In Fore World Developments Limited and Bayside Villas limited v. Napier City Council (Decision W029/2006), appellants sought to have land zoned as residential to enable subdivision, despite coastal erosion concerns.

The court acknowledged that sea-level rise will result in wave action occurring at a higher elevation on shore and thus cause coastal erosion. In order to calculate the rate of coastal erosion, the court accepted the sea-level rise estimates of the IPCC.

In its overall assessment, the court stated that climate change aspects such as increased storminess require the consideration of an additional buffer allowance. This was explained as follows:

It is not a situation where it is necessary to be overly cautious but it would be prudent to provide for a buffer in addition to the estimated extent of the coastal erosion to make some sort of allowance for the factors that have not been estimated and included ... That buffer should be in the order of 25% of the sum of the estimated distance.

7.5 Local government management and planning responsibilities

Both regional and territorial authorities have responsibilities and duties relating to natural hazards, and thus to climate change, under the Resource Management Act 1991 and a range of other legislation. Regional councils have a primary role at regional level in assisting territorial authorities through 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 that contribute to climate change are a matter for central government, rather than local government (eg, Inquiry into the Role for Local Government in Meeting New Zealand’s Climate Change Target, November 2001, section 70A, Resource Management Act). However, local government in some circumstances must consider ‘offsets’, such as the benefits to be derived from the use and development of renewable energy when making relevant decisions in terms of section 7 of the Resource Management Act. There are other situations 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 should have the effect of limiting fossil fuel use.

Box 7.8: Context for council decisions

The Local Government Act 2002 requires councils to prepare a limited number of plans – long-term council community plans and annual plans. Water and other sanitary services must be assessed from time to time by the council and service provision must be included in the long-term council community plan, but asset management plans per se are not a requirement. The annual plan must set out details of council asset administration and costings.

All plans provide a decision-making framework, but, beyond that, all council decisions must be made in a context that involves:

  • each decision relating to a stated objective or community outcome

  • consideration of all reasonably practicable options, their benefits and costs, and their efficiency and integration with stated objectives

  • consideration of the implications of the decision in relation to present and future needs, and all statutory responsibilities

  • consideration of Māori values

  • consideration of the views of affected people at varying stages of decision-making, and through consultative procedures

  • consideration of prudent stewardship of the councils resources, and of sustainable development (for both, in proportion to the significance of the decision).

This underlying framework means that councils need to remain aware and informed of climate change implications in much of what they do.

Local government has a wide range of responsibilities that relate to adaptive responses to climate change. These responsibilities are formalised through a range of plans, prepared in different statutory contexts, 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 projected 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. This includes the requirement that councils must consider the implications of ‘the risk of acting or not acting’ if there is uncertain or insufficient information about the subject matter of the provision.

Box 7.9: Examples of relevant plan provisions

Wellington Regional Policy Statement, extracts from the natural hazards chapter

Issue 5: The frequency and magnitude of natural hazard events in the Wellington Region may also alter due to climate change. Warmer global temperatures may increase the Region’s exposure to tropical cyclones such as the Wahine storm, which would increase the frequency of major flood and landslip events and may increase coastal erosion hazard from projected sea level rise.

Regional Policy Statement for Southland, extracts from the natural hazards chapter

Policy 15.14: ‘Plan for sea level rise of 35 cm by the year 2050, until such time that there is evidence that the rate of rise is higher or lower.’

Policy 15.19: ‘Recognise the most likely effect of climate change will be reflected in a changing rainfall pattern in the region.’

Regional Coastal Plan for Southland, the coastal processes section

Issue 12.1.1: ‘Global sea level rise could impact upon structures, reclamations and other activities in the coastal marine area.’

Policy 12.1.1: ‘The design of structures and reclamations is to take into account the effects of a possible sea level rise of 35 cm prior to 2050 AD, until such times as there is evidence that the rate of this is higher or lower.’

Policy 12.1.64: ‘Encourage and assist territorial authorities to identify coastal hazard zones in the coastal environment especially areas subject to erosion (wind/water) or inundation.’

Nelson Regional Resource Management Plan, district-wide objectives for natural hazards; environmental results anticipated and performance indicators

Anticipated environmental results

Indicators

Data source

DO2e.1
Safer communities

DO2e.1.1
Low incidence of damage to property and risks to life from natural hazards.

Insurance claims, council records

DO2e.2
Low density of development and improved design and construction standards in areas where this Plan identifies major risks from natural hazards.

DO2e.2.1
Consistent refusal of development proposals or increased design requirements when resource consents are applied for.

Council records, aerial photos

7.6 Existing use rights

Under the Resource Management Act 1991, 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 the term of a consent, once set, 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 20A(2) of the Resource Management Act). However, the wording of section 10 of the Act, which provides 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.

Councils should 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.

Regional land-use rules, which may relate to the avoidance or mitigation of natural hazards (enabled through the provisions of section 30(1)(c) and section 68), effectively extinguish existing use rights if they are incorporated in a regional plan (see section 20A(2) of the Resource Management Act). These provisions override district plan provisions.

7.7 Resource consent decisions

Any decision that will have an implication for more than about the next 30 years should be 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 avoid, remedy or mitigate climate change-related effects such as erosion slippage or inundation.77

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, implications of granting the consents in terms of climate change 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.

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 that must be provided with applications for subdivision or development that are likely to be affected by hazards, including the potential implications of climate change.

7.8 Building consents

One of the four purposes of the Building Act 2004 is to ensure that buildings are designed, constructed, and able to be used in ways that promote sustainable development (section 3).

The Building Act provides the framework for building consents where responsibilities lie with district and city councils. This includes structures in the coastal marine area that are technically outside the district. However, building consents relating to dams are the responsibility of regional councils. The Building Act also includes provisions relating to LIMs (Land Information Memoranda) and PIMs (Project Information Memoranda). LIMs are provided for in the Local Government Official Information and Meetings Act 1987. LIMS, in particular, have become key elements for conveying site and risk information to people who seek such information. 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 of normal building practice (eg, 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 the purchase of land or an application for specific development.

Generally, the Resource Management Act 1991 will set the framework for the building consent. For example, if an area is notified as hazard-prone in a plan, resource consent for development may be able to be obtained, but it may include a range of 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, plans under the Resource Management Act should 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 that 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 1991 provides councils with the responsibility of gathering information and undertaking or commissioning research to enable them to carry out their functions. Councils also need to keep available, and make public, research on natural hazards. Under the same section of the Act, 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 this information will help build up a picture of change in a district or region and will contribute to a better national understanding of the climate trends affecting the whole of New Zealand. This information gives a basis for national and local ongoing adaptation to change.

Box 7.10: Monitoring provisions – example

The Wellington Regional Policy Statement, national hazards section, includes the following:

Method 6: The Wellington Regional Council will periodically review the current knowledge on climate change and possible effects on natural hazards.

Climate change effects resulting from the ‘greenhouse effect’ are not yet well understood, and are the subject of major studies worldwide. This method requires the council to review regularly the available information and assess possible effects on the frequency and magnitude of natural hazards in the region.

Note: This council included climate change in its State of the Environment Report 2005 in response to this Method.

7.10 Some examples

This section gives hypothetical examples of how a local authority might work through the whole process of investigation and decision-making relating to climate change.

Box 7.11: Stormwater system asset management decision: a growing and infilling suburban area – example

Key driver: Need to upgrade and extend parts of a stormwater system to accommodate urban growth.

Climate change identified as an issue in area? Yes, in Regional Policy Statement, District Plan, previous Asset Management Plan.

Key climate variable: Peak 24-hour rainfall intensity.

Climate change effect: Reduced return period for heavy rainfall events (likely).

Key risk: More frequent stormwater overflows and ‘downstream’ consequences.

Uncertainty: No change, to fourfold increase in frequency of annual events by 2070.

Tools: Develop plausible scenario, undertake risk assessment (see chapters 5 and 6).

Response options:

From now, when making decisions for new, extended or replacement stormwater systems evaluate risks and costs of the following:

  • larger-sized pipes/drains

  • enhanced pumping capacity

  • staged capacity upgrades over time.

From now, change the District plan to specify maximum hard surface area per site.

From now, encourage or require on-site or local area storage of peak stormwater in new subdivisions through consent conditions.

Note: The range of responses requires co-ordination across council departments.

In the future, provide budget and personnel for more frequent maintenance and repair of stormwater systems.

Box 7.12: Water supply asset management decision for a medium-sized city – example

Key Driver: Water restrictions imposed in two recent dry years, and the council is now consulting on new water supply options for the community.

Climate change identified as an issue in area? Yes, in the Regional Policy Statement, District Plan.

Key climate variable: Average annual rainfall.

Climate change effect: Reduced annual rainfall (likely), extended periods of drought (very likely).

Key risk: Demand for water exceeds supply.

Uncertainty: Average 10% reduction in rainfall in catchment, to average 40% reduction in rainfall in catchment. Drought (no rain period) likely to increase from 20 days to 30 days in summer. Both by 2050.

Tools: Develop plausible scenario, undertake risk assessment (see chapters 5 and 6).

Response options:

From now, investigate and re-evaluate existing city supply storage capacity and alternative supply sources.

From now, develop the plans to meet increased needs (taking into account population growth and a higher average demand per household) in the face of reduced security of supply. Evaluate risks and costs of the following:

  • do nothing

  • extend the reservoir area

  • duplicate the reservoir area

  • enhance groundwater

  • the staging and timing of the above measures.

From now, encourage or require on-site collection and storage of rainwater (specify storage capacity in engineering standards) in all new developments.

From now, commence education programmes on water conservation and sustainable gardening.

From now, allow for staff time and budget for the consent process, the design and the construction of enhanced supply.

In the future, budget to monitor the use and effectiveness of on-site storage, and the effectiveness of water conservation education programmes. Budget to continue the education programmes.

Box 7.13: New industrial expansion area decision – example

Key Driver: Major development with long-term lock-in of physical resources and some hazard exposure.

Climate change identified as an issue in area? Yes, in the Regional Policy Statement, District Plan.

Key climate variable:

1) Peak 24-hour rainfall intensity.

2) Air temperature (inversions), wind directions.

Climate change effect:

1) Reduced return period for heavy rainfall events (likely).

2) Altered frequency of inversions (likely).

Key risk:

1) Adequacy of stormwater retention provision within industrial area.

2) Air quality effects arising from industrial emissions close to existing residential area.

Uncertainty:

1) No change, to fourfold increase in frequency of annual events by 2070.

2) No change, to reducing the current frequency of inversions by 30%.

Tools: Develop plausible scenario, undertake risk assessment (see chapters 5 and 6).

Response options:

Now, analyse and decide whether an increased frequency of significant stormwater events is a ‘fatal flaw’ making this site unsuitable and thus preventing rezoning, or whether there are adequate utilisation, management and/or design options. Note: In this example, increased temperatures and reduced inversions are positive effects in the long term and neutral or slightly positive in considering long-term effects and land suitability.

If land is rezoned:

  • From now, determine and identify on a structure plan adequate stormwater detention areas for scenario design rainfall. Determine the appropriate management option, and protect the land, for the stormwater system (as a designation or through rules), in district plan provisions.

  • From now, incorporate the cost of a complete stormwater system in an analysis of financial or development contributions.

  • From now, identify a stormwater detention area and the remainder of the stormwater system as an item for consideration in the next review of the Long-term Council Community Plan, and its costs and sources of funding.

  • In the future, provide the budget and personnel for ongoing maintenance, etc.


77  The Resource Management Act 1991 in sections 106 and 220 makes provision for hazard avoidance or mitigation where subdivision (and future development on new subdivisions) is concerned.