View all publications

Appendix 3: Current Legislation and the Role of Local Authorities

The functions local authorities have with respect to contaminated land are defined in the Resource Management Act 1991 (RMA). The RMA is a significant piece of legislation addressing environmental management in New Zealand. In addition, the New Zealand Building Code contained in the First Schedule of the Building Regulations 1992 prompts territorial authorities to assess building sites to determine the presence of hazardous agents or contaminants to safeguard people.

This section provides a brief overview of the roles of local authorities (regional councils, city and district councils) and the different pieces of legislation they need to consider with respect to potential contamination from historical sheep-dip sites.

Role of city and district councils (territorial authorities)

City and district councils (including unitary authorities) are responsible for authorising subdivisions and changes in land use. In particular, they are responsible for controlling land uses to prevent or mitigate any adverse effects of the development, subdivision or use of contaminated land. This takes on particular importance in relation to sheep-dip sites, because most new subdivisions and land-use changes occur on urban fringes, often in former agricultural areas. Commonly, land-use changes are from agricultural to residential or from agricultural to rural−residential (lifestyle blocks).

When considering resource consents for subdivisions, or any change in land use, territorial authorities are responsible for ensuring that the land is suitable for its new intended purpose. One aspect of suitability is that any residual contaminant concentrations in the soil are acceptable for residential development from a human health perspective. To confirm that the land is safe for people, the territorial authority may require the applicant to assess areas where contaminants may be present, including where a sheep dip exists or may have been located.

Some territorial authorities have specific plan rules in place to address known contaminated sites. For example, Wellington City Council, in its District Plan rule 5.4.4, controls activities on contaminated sites by stating that any activity, use or construction, alteration of, and addition to buildings or structures on a contaminated site is a discretionary activity (unrestricted). Appendix 2 proposes a district plan provision that is specifically targeted at the management of risks associated with properties containing former sheep dips.

Territorial authorities also have an obligation to gather information and keep records relating to hazards within their district or city area. Further guidance on information management can be found under section 3.2.

Role of regional councils

Regional councils (including unitary authorities) are responsible for ensuring that contaminated sites are investigated. The purpose of that function is to be able to identify and monitor contaminated land. Regional councils also have a role in controlling discharges to water, air and land of contaminants that may cause an adverse effect, including discharges of contaminants from sheep-dip sites. The primary role of regional councils is environmental management, which includes the protection of human health.

Contaminants may discharge or leach from sheep-dip sites into local groundwater or surface water. The effect of these discharges is not always regarded as significant, particularly in relation to the effects of sheep-dip sites on the wider environment as a whole. However, there are local exceptions, and in some cases these "passive" discharges from sheep-dip sites would be regarded as locally significant; for example:

  • where the residual discharge to groundwater is causing ongoing contamination of a private or public drinking-water supply, or
  • where the discharge is to surface water, and the resulting concentrations in surface water and sediments exceed guidelines for the protection of freshwater or marine species.

During the remediation process itself, precautions should be taken to avoid the discharge of contaminants into the wider environment. A common situation might be where earthworks on an excavation site have the potential to disperse contaminated dust, or cause sediment run-off resulting in the contamination of a nearby stream. Another concern is the discharge of soil contaminants back to soil, through using contaminated material for fill elsewhere. This concern is generally addressed by regional plan rules controlling the discharge of contaminants to land. To encourage site remediation, the Waikato Regional Plan, for example, allows for the remediation of contaminated land as a permitted activity provided disposal is to a licensed landfill and certain other conditions are met.

Regional councils also have the obligation to gather information and keep records relating to hazards within their region. As with other contaminated sites, this may entail compiling a register of sheep-dip sites as this information becomes known. Further guidance on information management can be found under section 3.2.

Unitary authorities have the responsibilities of both territorial authorities and regional councils for managing contaminated land.

Resource Management Act 1991 (RMA)

Regional and territorial authorities have responsibilities for managing contaminated land under the RMA. The following excerpts from the Act highlight the sections that have particular relevance to contaminated sites.

Definition of contaminants and contaminated land

The provisions under the RMA relating specifically to contamination are found under section 15 - discharge of contaminants into environment.

The RMA defines "contaminant" under section 2(1) as follows.

"Contaminant" includes any substance (including gases, odorous compounds, liquids, solids, and micro-organisms) or energy (excluding noise) or heat, that either by itself or in combination with the same, similar, or other substances, energy, or heat —

(a) When discharged into water, changes or is likely to change the physical, chemical, or biological condition of water; or

(b) When discharged onto or into land or into air, changes or is likely to change the physical, chemical or biological condition of the land or air onto or into which it is discharged.

The RMA defines "contaminated land" under section 2(1) as follows.

"contaminated land" means land of one of the following kinds:

(a) if there is an applicable national environmental standard on contaminants in soil, the land is more contaminated than the standard allows; or

(b) if there is no applicable national environmental standard on contaminants in soil, the land has a hazardous substance in or on it that —

(i) has significant adverse effects on the environment; or

(ii) is reasonably likely to have significant adverse effects on the environment.

Section 30 makes particular reference to the investigation of contaminated land and the duty to control discharges of contaminants, which can also be applied to contaminants from disused sheep-dip sites.

(1) Every regional council shall have the following functions for the purpose of giving effect to this Act in its region:

...

(c) the control of the use of land for the purpose of −

...

(v) the prevention or mitigation of any adverse effects of the storage, use, disposal, or transportation of hazardous substances:

(ca) the investigation of land for the purposes of identifying and monitoring contaminated land:

...

(f) The control of discharges of contaminants into or onto land, air or water and discharges of water into water:

The functions of territorial authorities are defined under section 31 of the RMA. These functions generally include the integrated management of the effects of the use, development, or protection of land. Section 31 includes the following paragraph:

(1) Every territorial authority shall have the following functions for the purpose of giving effect to this Act in its district:

...

(b) the control of any actual or potential effects of the use, development, or protection of land, including for the purpose of −

...

(ii) the prevention or mitigation of any adverse effects of the storage, use, disposal, or transportation of hazardous substances; and

(iia) the prevention or mitigation of any adverse effects of the development, subdivision, or use of contaminated land.

Section 35 states the general duty of local authorities to gather information, monitor and keep records.

Regional councils and territorial authorities have identified functions to control land use to prevent or mitigate the adverse effects of the storage, use, disposal or transportation of hazardous substances. The regional policy statement is required to state which authority is responsible for specifying objectives, policies and methods to exercise this function (section 62(1)(i)(ii) of the RMA).

National environmental standards

Under sections 43 to 44 of the RMA, the Minister for the Environment has the power to prepare and recommend national environmental standards (NES). The appropriateness of an NES for contaminated land is currently being considered. This guideline will complement any NES developed for contaminated land in the future.

Regional rules

Section 68 of the RMA includes the following subsection:

(11) If paragraph (b) of the definition of contaminated land applies, a rule may exempt from its coverage an area or class of contaminated land if the rule −

(a) provides how the significant adverse effects on the environment that the hazardous substance has are to be remedied or mitigated; or

(b) provides how the significant adverse effects on the environment that the hazardous substance has are to be avoided; or

(c) treats the land as not contaminated for purposes stated in the rule.

District rules

Section 76 of the RMA includes the following subsection:

(5) If paragraph (b) of the definition of contaminated land applies, a rule may exempt from its coverage an area or class of contaminated land if the rule −

(a) provides how the significant adverse effects on the environment that the hazardous substance has are to be remedied or mitigated; or

(b) provides how the significant adverse effects on the environment that the hazardous substance has are to be avoided; or

(c) treats the land as not contaminated for purposes stated in the rule.

Local Government Official Information and Meetings Act 1987 (LGOIMA)

Under section 44A(1) of the LGOIMA, a territorial authority must issue a Land Information Memorandum (LIM) "in relation to matters affecting any land in the district of the authority". Section 44A (2) specifies the matters to be included in a LIM which include:

(a) Information identifying each (if any) special feature or characteristic of the land concerned, including but not limited to potential erosion, avulsion, filling debris, subsidence, slippage, alluvion, or inundation, or likely presence of hazardous contaminants, being a feature or characteristic that -

(i) Is known to the territorial authority; but

(ii) Is not apparent from the district scheme under the Town and Country Planning Act 1977 or a district plan under the Resource Management Act 1991:

...

(g) Information which, in terms of any other Act, has been notified to the territorial authority by any statutory organisation having the power to classify land or buildings for any purpose.

Hazardous Substances and New Organisms Act 1996 (HSNO)

The purpose of the HSNO is to protect the environment, and the health and safety of people and communities, by preventing or managing the adverse effects of hazardous substances and new organisms (including genetically modified organisms) in New Zealand.

Territorial authorities are enforcement agencies under the HSNO. They work with other enforcement agencies (eg, Occupational Safety and Health − OSH) and regional councils to ensure a coordinated approach is taken to hazardous substances management. With regard to contaminated sites, the primary role of local government under the HSNO is the prevention of new contaminated sites arising from the use, storage or manufacture of hazardous substances.

The Stockholm Convention on Persistent Organic Pollutants (POPs), to which New Zealand is a party, is enforced through HSNO. POPs are prohibited substances and strict controls are placed on the use, storage and disposal of any POPs remaining in New Zealand. Included within the (current) 12 organochlorine substances listed under the convention are DDT and dieldrin, which means the Convention is relevant to the application of the guideline on managing historical sheep-dip sites. New Zealand has an obligation under the convention, Article 6.1(e) to: "endeavour to develop strategies for identifying sites contaminated by chemicals listed (under the convention); if remediation of those sites is undertaken it shall be performed in an environmentally sound manner".

Building Regulations 1992

Building inspectors can apply clause F1 of the Building Code when the territorial authority has identified an old sheep-dip site on the same parcel of land that is subject to building activity. Clause F1: Hazardous Agents on Site, is extracted from the New Zealand Building Code contained in the First Schedule of the Building Regulations 1992.

F1.1 The objective of this provision is to safeguard people from injury or illness caused by hazardous agents or contaminants on a site.

F1.2 Buildings shall be constructed to avoid the likelihood of people within the building being adversely affected by hazardous agents or contaminants on the site.

F1.3.1 Sites shall be assessed to determine the presence and potential threat of any hazardous agents or contaminants.

F1.3.2 The likely effect of any hazardous agents or contaminants on people shall be determined taking account of:

a) the intended use of the building

b) the nature, potency or toxicity of the hazardous agent or contaminant, and

c) the protection afforded by the building envelope and building systems.

Health Act 1956

The Health Act 1956 includes provision for territorial authorities to:

  • improve, promote and protect the public health
  • cause steps to be taken to identify and abate nuisances or to remove conditions likely to be injurious to health or offensive
  • enforce regulations under the Health Act
  • make bylaws for the protection of public health
  • issue cleansing orders or obtain closing orders.

Section 29 of the Health Act defines health "nuisances" and generally includes matters "likely to be injurious to health". Particularly relevant are references to:

  • accumulations or deposits
  • the situation or state of premises
  • the conduct of any trade, business, manufacture or other undertaking.

Enforcement is determined by the District Court if a nuisance is not abated voluntarily, except where immediate action is necessary. Works undertaken by a territorial authority to abate a nuisance may result in costs being recovered from the owner or occupier. It should be noted, however, that any person can initiate a prosecution regarding a nuisance. A nuisance has to exist before any action can be taken, although a situation has to be "likely to be injurious to health" to meet the requirement for action.

Under section 41 of the Health Act, the territorial authority may serve a cleansing order on the owner or occupier, specifying the work to be carried out and the time in which to complete it. A closing order made under sections 42 or 44 can be issued as a last resort to protect the occupants or the public, but such action will not, of course, resolve any contamination issues.

Health and Safety in Employment Act 1992 (HSEA)

The object of the Health and Safety in Employment Act 1992 (HSEA) is to promote the prevention of harm to all people at work, and others in, or in the vicinity of, places of work. It places emphasis on employees and employers to take responsibility for the well-being of themselves and others at work. In some cases, a person may be liable for prosecution under the HSEA where a landowner or occupier:

  • has knowledge of a contaminated sheep dip on their property
  • has failed to take all practical steps to ensure the safety of their employees on their worksite
  • has failed to systematically identify the hazard, and has failed to take all practical steps to eliminate, isolate, or minimise the hazard.

A health, safety and environment plan should be prepared as part of the planning for site work. It is very unlikely under the HSEA to be able to enforce a clean-up of a contaminated sheep-dip site. For further information refer to the relevant legislations, approved codes of practices or Occupational Safety and Health guidance, such as the Health and Safety Guidelines on the Clean-up of Contaminated Sites (OSH 1994).