Ports Must Avoid Effects On Outstanding Coastal Environments

In the recent decision Environmental Defence Society Inc v Otago Regional Council [2019] NZHC 2278 the High Court has overturned an interim decision of the Environment Court concerning provision for ports in the Proposed Otago Regional Policy Statement (PORPS). This decision further reinforces the sea change in application of the Resource Management Act 1991 (RMA) since the Supreme Court’s 2014 decision in Environmental Defence Soc Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38 concerning giving effect to directive avoidance policies in the New Zealand Coastal Policy Statement 2010 (NZCPS).

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The Resource Management Amendment Bill

The Resource Management Amendment Bill was introduced earlier this week.  The Bill includes revisiting restrictions on public notification and appeals, reinstating financial contributions and adding a new specialised process for freshwater decision-making.  You can view the full list of proposals in the Explanatory Note at the following link:

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Adequacy of Information for Notification Decisions -Discount Brands, Subsequent Legislative Amendments and Case Law

The Supreme Court’s decision in Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17 established the standard of information consent authorities require to make notification decisions under the Resource Management Act 1991 (RMA). However, subsequent amendments to the notification provisions of the RMA removed the express statutory requirement for consent authorities to have adequate information, and replaced the rebuttable presumption of notification with a discretion to notify, casting doubt on the continued applicability of Discount Brands.

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Welcoming Back the Well-Beings

As promised by Hon Nanaia Mahuta at the beginning of her term as Minister for Local Government,  the four well-beings have been restored to the heart of the Local Government Act 2002 (the Act).

The Local Government (Community Well-being) Amendment Bill has now been passed reinstating the four aspects of community well-being – social, economic, environmental and cultural into the Act.  This short Bill, whilst harking back to the inception of the  Act, should not be interpreted as restoring the governance of local authorities to 2002 terms.  Much has changed in the interim, and the waves of ‘reform’ applied to the Act by successive Ministers have changed the manner of governance imposed in countless ways. 

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Relevant Plan Provisions Must Prevail in Determining Whether Adverse Effects Arise

In the recent decision of Liu v Auckland Council [2019] NZEnvC 33 the Environment Court cautioned that personal views as to what constitutes an adverse effect must not outweigh the application of relevant planning provisions. The decision also provides helpful commentary regarding the nature of the abatement notice appeal regime under the Resource Management Act 1991 (RMA).

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Financial Contribution Conditions Now Confirmed to be Available for Designations

Earlier this month, in the decision Tauranga City Council v Minister of Education [2019] NZEnvC 032, the Environment Court considered as a preliminary question of law whether sections 171 or 174 of the RMA allow a territorial authority to recommend, and the Environment Court to impose, conditions requiring “monetary contributions” on designations (other than conditions that are offered on an Augier basis). 

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