MinterEllisonRuddWatts
  May 26, 2011 - New Zealand

- Planning to develop land? - National Policy Statement for fresh water reforms - Decade of aquaculture roadblocks soon to be lifted - New Environmental Protection Authority established
  by Rachel Devine Daniel Clay Paul Radich

The Government is continuing to work through its environmental reform agenda at a brisk pace. This month it has finalised a National Environment Standard for contaminants in soil and a National Policy Statement for Fresh Water. Significant progress has also been made on two key pieces of legislation this month, with the Aquaculture Amendment Bill passing its second reading and the Environmental Protection Authority Act passing into law.

On a more local level, the Auckland Council has unveiled its vision for the city centre and is seeking public feedback until 17 June 2011.

Planning to develop land?  Beware of the new National Environmental Standard on contaminated soil


You may recall from previous editions of Envirolink that the Ministry for the Environment has been working towards development of a National Environmental Standard for Assessing and Managing Contaminants in Soil (NES).  The Government has recently agreed that the NES be drafted as a regulation.  It is expected that the NES will take effect on 1 September 2011.   


The objective of the NES is to ensure that land affected by contaminants in soil is appropriately identified and assessed at the time of development, and if necessary remediated or contained, so that the land is safe for human use.  The current controls that apply to management of land contamination were viewed as being either inadequate or inconsistently applied.  The purpose of the NES, therefore, is to put in place one consistent framework of controls that all territorial authorities will be required to give effect to and enforce.    


The NES will apply only at the time of land use change and will be limited to land that is potentially or actually affected by contaminants due to historical use and the type of activities previously undertaken on the land.  Soil contaminant values will be set out in Schedules to the Regulations for twelve soil containments (arsenic, boron, cadmium, chromium, copper, lead, mercury, benzo(a)pyrene, DDT, dieldrin, PCP and dioxin) across five different land uses ¨C rural, residential, high density residential, recreational and commercial/industrial.  Where there is a risk to human health from soil contamination that exceeds the soil contaminant value for the intended land use, a resource consent application will be required. 


Practically, this means that anyone considering purchasing land, or developing land they already own, will need to ensure their due diligence specifically addresses whether the land may be subject to the requirements of the NES.  Where the intention is to develop land, it will be crucial to ensure that the historical use of the site is reviewed before any development decisions are made.  This will no doubt add time and cost to the development process.


National Policy Statement for fresh water and future water reforms


The Minister for the Environment, Nick Smith, has recently released a finalised National Policy Statement for Fresh Water Management (Fresh Water NPS), which will take effect from 1 July 2011. This follows the recommendations of the Land and Water Forum, discussed in last month¡¯s Envirolink.


The Fresh Water NPS is the first step in a new work programme for fresh water reform. The Fresh Water NPS establishes the framework for planning reforms, chiefly by requiring regional authorities to set water quality and water quantity limits. This will provide a basis for addressing water over-allocation, which has been identified as a key concern in the current water management framework.


The overall approach of the Fresh Water NPS reflects government policy of giving greater recognition to the economic potential of water resources within the context of acceptable environmental limits. Compared with the Board of Inquiry and Land and Water Forum recommendations, there is less emphasis on protecting the intrinsic values of water bodies and greater emphasis on objectives and policies which focus on economic efficiency of water allocation and use.


Objectives and policies relate to five topics: water quality, water quantity, integrated management, tangata whenua roles and interests, and implementation. In addition to adopting quality and quantity limits, the NPS will require regional councils to improve integrated management and to avoid, remedy or mitigate cumulative adverse effects of land use and development on water quality and quantity. Local authorities will also be required to involve iwi and hapu in fresh water management, to identify tangata whenua values and interests, and to reflect these in water management and decision making.


Regional authorities have until 31 December 2014 to implement the Fresh Water NPS, but will have until 31 December 2030 to implement it if they consider that implementation by 2014 is impracticable. However, councils which have not implemented the Fresh Water NPS must still have regard to its objectives and policies when making decisions.


Together with the NPS, the Minister for the Environment has announced a $15 million water clean-up fund. This will be a contestable fund and will assist regional councils in meeting the costs of remedying existing environmental degradation in streams, rivers and lakes.


The Government has also announced an irrigation assistance fund. This will be available for start up capital for irrigation projects. The fund will initially be $35 million dollars, with future funding increases of up to $400 million.


A key recommendation of the Land and Water Forum was a National Environmental Standard on water quality and quantity. Cabinet papers do not rule this out as a future possibility to complement other aspects of water management reforms. Further work on allocation mechanisms is also expected. The Government has yet to issue a comprehensive response to the Land and Water Forum recommendations. This response is likely to contain more detail on policy directions for allocation. We will keep you updated as this work stream progresses.


A decade of aquaculture roadblocks soon to be lifted


The aquaculture industry would agree with the comments of Hon Phil Heatley, Minister of Fisheries and Aquaculture, that the Aquaculture Legislation Amendment Bill (No 3) (Bill). "will reform aquaculture legislation after a decade of roadblocks and missed opportunities." The Minister made these comments when he introduced the Bill for its second reading, which it passed, on 17 May 2011.


As marine farmers will be well aware, in many coastal plans new marine farms remain prohibited activities. Therefore, the proposed changes to the legislative regime will need to be combined with changes to the relevant regional coastal plans if there is to be any increase in opportunities for new farms. At a recent seminar on the Auckland Spatial Plan, Dr Roger Blakeley (Chief Planning Officer) noted that the Auckland Council is currently developing a Marine Spatial Plan for the Hauraki Gulf. The potential content of a Marine Spatial Plan is considered further below.


Progress on the Bill


The Bill was reported back to Parliament by the Primary Production Select Committee on 9 May 2011. Generally speaking, the Select Committee did not recommend any substantive changes to the overall purpose of the Bill although it did recommend some amendments which the Minister says will "improve the workability of the new law". In particular, the Committee recommended procedural changes to the Minister¡¯s power to amend aquaculture-related provisions in regional and coastal plans.


Key recommendations of the Select Committee


The Select Committee agreed with the principal change in the Bill which is the removal of aquaculture management areas. This change will considerably streamline planning processes and will put aquaculture on an equal footing with other activities in the coastal marine area. Some of the changes recommended by the Select Committee include:




  • Immediate legal effect: The Committee recommended allowing aquaculture rules in a proposed plan to have immediate effect (an exception to the default position of proposed rules having no effect until the Council has made a decision on submissions).


  • Council requested moratorium: The Committee retained the Council¡¯s ability to request a one year moratorium, but has recommended amending the relevant provisions to clarify the requirements for regional councils in making such a request.


  • Minister¡¯s power to amend regional and coastal plans: The Committee recommended changes to clarify the scope of the proposed power and to more clearly establish the requirement for public and iwi consultation.

Maori Commercial Aquaculture Claims Settlement Act 2004


The Select Committee has not recommended any changes to the provisions in the Maori Commercial Aquaculture Claims Settlement Act 2004 which specify how the Crown will meet its settlement obligations. The proposal is to enable the Crown to meet its obligations by provision of either 20% of new space or a financial (or other) equivalent. The Minister had previously indicated that further amendments to the Bill may be introduced later in the process following engagement with iwi, which will provide further detail on how these goals would be achieved. However, no amendments have been forthcoming to date.


In a recent speech to the Maori Fisheries Conference, the Minister stated that "the Government remains totally committed to upholding the aquaculture settlement." The Minister said that the Ministry has "been working with iwi to ensure that the integrity of the settlement will be maintained. I am now in discussions with my colleagues about how best to deliver the obligations under the settlement." It remains to be seen whether delivering the Crown¡¯s obligations will involve last minute amendments to the Aquaculture Bill.


Marine Spatial Plan for Auckland


Dr Blakeley (Chief Planning Officer, Auckland Council) recently spoke at a seminar on the development of the Auckland Spatial Plan. He noted that the coastal team at the Auckland Council is currently working with Environment Waikato to develop a Marine Spatial Plan for the Hauraki Gulf.


It is not clear at present what status this plan will have or whether it will form part of the Spatial Plan or will instead be used to guide future changes to the Regional Coastal Plan. However, Dr Blakeley did note that the Marine Spatial Plan will aim to provide clarity about which activities can go where, reduce conflicts between competing uses and maximize opportunities in the coastal marine area. He indicated that the plan content may include the following topics:




  • Aquaculture;


  • Natural character and natural environment;


  • Activities on beaches;


  • Commercial shipping and smaller commercial boating activities;


  • Marinas;


  • Fishing; and


  • Coastal hazards.

Next steps for Aquaculture Bill


The next stage in the process for the Bill is a clause by clause consideration, following which the Bill will receive its third reading and, all going well, will be passed into law. We will keep you informed of progress on the Bill.


New Environmental Protection Authority established


The Environmental Protection Authority Act 2011 received royal assent on 17 May 2011. The Act dissolves the Environmental Protection Authority (EPA) created by the 2009 amendments to the Resource Management Act and establishes a new EPA with wider powers.


The new EPA¡¯s functions and powers were discussed in our November 2010 edition of Envirolink. These powers are likely to continue to evolve, with the Government clearly signalling that the EPA will be responsible for environmental regulation in New Zealand¡¯s exclusive economic zone. We are expecting the exclusive economic zone legislation to be introduced before the end of the year and will keep you up to date as this work stream progresses.


City Centre Masterplan


The Auckland Council has revealed its vision for the city centre in a discussion document released this week, which seeks feedback on the possible content of an Auckland City Centre Masterplan (Masterplan).    This follows on from the Council approving an outline of initial ideas for the development of the Masterplan earlier this year, as mentioned in our February Envirolink.   


The discussion document includes a range of proposals about how the central business district of Auckland can be transformed into a wider international city centre, which is one of the proposed strategic objectives contained in the discussion document on the Auckland spatial plan.  Some ideas that the Council have asked for feedback on include the possible development of a light rail network, converting parts of Queen St into pedestrian malls, and establishing a continuous promenade from the Harbour Bridge to St Heliers. The Masterplan will, like the spatial plan, identify the projects that require funding, and will inform development of the Unitary Plan (the new district plan for the region).  The feedback period is open until 17 June 2011


Please contact one of our experts if you would like to discuss any of the matters in this edition of Envirolink further.



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