As a reminder, national policy statements are prepared under the Resource Management Act 1991 (“RMA”) and state objectives and policies for matters of national significance that are relevant to achieving the purpose of the RMA.
All regional policy statements, and regional and district plans, must “give effect to” national policy statements – meaning it is mandatory for local authorities to implement the requirements of national policy statements. The NPS-FW came into effect in September 2020, together with the associated NES-FW.
Following their introduction, both local authorities and relevant industry sectors raised concerns that the NPS-FW and NES-FW were placing unintended restrictions on a number of activities, including urban development. This related in particular to the wetland regulations within the NES-FW, given their unexpectedly broad coverage in light of the definition of “inland natural wetland” from the NPS-FW. There was also confusion as to whether the NES-FW applied to wetlands in the coastal marine area, with the Courts even taking different views on this issue.
After further consultation and investigation, the Ministry for the Environment (“MfE”) published a report in November 2022, which recommended various amendments to the NPS-FW and NES-FW to address the concerns raised. The report noted the need to: clarify the definition of a ‘natural inland wetland’; provide specific consenting pathways for certain industrial and urban development activities; refine the wetland restoration policies and include maintenance and biosecurity in those policies. It is hoped that these amendments will address the confusion around what should be protected as a “wetland”, as well as reduce complexity of resource consent applications, particularly in rural zones.
What has changed?
In summary, the changes introduced (which all came into effect as of 5 January 2023) include the following:
- Amend the NPS-FW and NES-FW to:
- Clarify the definition of a natural inland wetland, in particular by providing a national list of exotic pasture species, with standardised assessment processes, to clarify the pasture exclusion in that definition.
- Provide consent pathways for certain activities (being quarrying activities, landfills and cleanfill areas, mineral mining (with some additional controls on coal mining) and some urban development).
- Make restoration and wetland maintenance easier to undertake.
- Improve the clarity of policies, reduce the complexity of drafting and, in some cases correct errors.
- Amend the NES-FW so its wetland provisions no longer apply to wetlands in the coastal marine area (noting that wetlands in the coastal environment, but inland from the coastal marine area, will remain subject to the NES-FW).
It is hoped that these amendments will provide clarity for greenfield developments, as well as giving existing landowners clarity on their obligations regarding wetlands in their area.
Auckland Council granted extension for making decisions on PC78
As a reminder, all tier one Councils are currently holding hearings on their various “intensification” plan changes. These are the plan changes to comply with the requirements of both the Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021 and the National Policy Statement on Urban Development 2020. This includes the Councils within the Auckland, Hamilton, Rotorua, Tauranga Wellington and Christchurch urban areas. Auckland’s plan change in this regard is known as PC78.
However, on 17 March 2023, the Council requested that the Minister extend the timeframe for completing the PC78 process by a year. This would move the date for the Council to issue its decisions on PC78 to 31 March 2025 (rather than 31 March 2024). The primary basis for this request was to allow the Council sufficient time to investigate and address what amendments should be made to PC78 with respect to natural hazards and flooding issues. This work is considered necessary in light of the significant flooding and landslides Auckland experienced earlier this year, during Auckland Anniversary weekend and Cyclone Gabrielle.
In granting the extension request, the Minister was clear that the Government is committed to both improving housing affordability and ensuring our cities are resilient. In other words, he considers that PC78 should assist to achieve both objectives (and that addressing natural hazards/flooding does not need to come at the expense of intensification). In this regard, he encouraged the Council to consider the Parliamentary Commissioner for the Environment’s report ‘Are we building harder, hotter cities? The vital importance of urban green spaces’, and to consider strong Unitary Plan approaches to controlling large impermeable areas such as driveways, car parks and terraces in new and existing sites. Thus the Council should not use this an opportunity only to restrict growth in flood prone areas, but to focus on creating better housing in parts of the city without flood risk.
Impact of the Minister’s extension decision
On 24 April 2023, the Council accordingly requested that all hearings, alternative dispute resolution and expert conferencing processes for PC78 be paused, while it continues its natural hazards/flooding investigations and prepares variations to PC78 as a result. The Independent Hearing Panel appointed to hear PC78 is currently considering this request, with a conference in this regard set down for 3 May 2023.