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Consent duplication for works in and around streams

Table of contents

Executive Summary
Introduction
Background
Regional Reviews of District and Regional Plans
Case Studies of Where Duplication has Occurred in Practice
Examples of Rules that Avoid Duplication
Key Themes
Conclusion and Recommendations

It should be noted that while this report has been commissioned by the Ministry for the Environment, the opinions contained within the report are the opinions of the authors (GHD Ltd), and do not necessarily reflect those of the Ministry for the Environment.

Executive Summary

In practice, works that are located in and around streams frequently require resource consent from both the regional council and the territorial authority. This can result in a duplication of resource consents that are required. Such situations increase the costs and time involved in obtaining resource consents for people and organisations wishing to undertake works in close proximity to a stream. Furthermore, there is the potential for conflicting decisions to arise on the best way to undertake the works when two separate consent authorities are dealing with the same issue. Duplication also creates unnecessary work for all parties and affects the public's perception of the Resource Management Act 1991 (RMA) process, when there is no clear division of roles and responsibilities.

A desktop review of three regions has identified that this issue is not isolated and that overlapping consent requirements occur in the Auckland, Horizons/Manawatu-Wanganui and Canterbury regions. The research has provided an overview of the rules that each regional council and territorial authority in the three regions have within their plans relating to earthworks and typical structures found in and around streams like bridges, culverts and pipelines. In conjunction with this desktop review, planners in the three selected regions were asked to comment on the issue of duplication from a practitioners point of view. Three case studies of consent duplication are consequently discussed to illustrate this issue in practice. Each case study highlights different activities that occur in and around streams and identifies the rules within the regional and district plans that create the overlap.

As part of the review, it was found that some district rules avoid duplication through expressly exempting works that require consent from the regional council. While the territorial authority retains control over the activity should the regional council not regulate it, this approach in practice reduces the amount of duplication that occurs when the regional council does regulate the activity.

A number of recommendations are subsequently made on measures that would reduce the duplication of resource consent requirements in and around streams. Recommendations are made at a regional and local level to avoid duplication within the current legislation, and a number of recommendations are also made at a national level to avoid overlapping consent requirements for works in and around streams.

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Introduction

This report provides a review of various district and regional plans on the consents required for works in and around streams. The review focuses on the rules that avoid duplication of consent requirements for activities undertaken in and around streams which typically include earthworks and the construction of pipelines, culverts and bridges. Auckland, Horizons Manawatu-Wanganui and Canterbury were chosen as three case study regions to establish the extent of consent overlap. The results of the review are tabulated to ascertain the consent requirements between the territorial authorities (TAs) and the regional councils (RCs), and the degree of overlap.

The extent of duplication for resource consents required from both TAs and RCs is then discussed, where each region is overviewed in terms of duplication, before project-based case studies highlight where duplicate consents have been required in practice. Consideration is then given to rules that have been written to avoid duplication of consents required between TAs and RCs.

Finally, a review of the relevant regional policy statements (RPSs) was undertaken to determine whether the RPSs provide clarification of where responsibilities lie in terms of regulating and controlling works in and around streams.

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Background

2.1 Context

In practice, overlapping consent requirements potentially arise in a number of situations. However, the focus of this report is on works in and around streams and the potential duplications typically encountered when consenting roading and stormwater infrastructure. Recently it has become apparent that direct duplication of consent requirements does occur in practice, but equally there are some good approaches where duplication is minimised, which should be further encouraged.

Where there is a duplication of consent requirements for works in and around streams, there is potential for an increase in the costs and time involved in obtaining resource consents for people and organisations wishing to undertake works in close proximity to a stream. This situation creates an inefficient use of the planning resources available within local government organisations. Furthermore, there is the potential for conflicting decisions to arise on the best way to undertake the works when two separate consent authorities are dealing with the same issue. Duplication creates unnecessary work for all parties and affects the public's perception of the RMA process, when there is no clear division on roles and responsibilities.

This targeted research seeks to illustrate whether the duplication recently encountered is common or fairly rare. The targeted review that has been conducted of district and regional plans has identified that this is a common issue, but also has highlighted best practice examples where rules have been written to avoid duplication.

2.2 Territorial Authority and Regional Council Responsibilities Under the Resource Management Act 1991

The provisions of the RMA which are relevant to the duplication of consents required for works in and around streams are contained within sections 30 and 31 of the RMA, which set out the statutory functions of regional councils (RCs) and territorial authorities (TAs) under the RMA.

The key sections are:

30. Functions of regional councils under this Act

(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—

(i) Soil conservation:

(ii) The maintenance and enhancement of the quality of water in water bodies and coastal water:
…

(iiia) the maintenance and enhancement of ecosystems in water bodies and coastal water:

(iv) The avoidance or mitigation of natural hazards:
…

(e) The control of the taking, use, damming, and diversion of water, and the control of the quantity, level, and flow of water in any water body, including…
…

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

31. Functions of territorial authorities under this Act
(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
…

(2) … the control of subdivision.

Section 30 of the RMA sets out the statutory responsibilities of RCs. These include controlling the use of land for soil conservation purposes, maintenance and enhancement of water quality and ecosystems (via section 9(3)); the control of structures within the beds of rivers (section 13); and, controlling discharges of contaminants (section 15).

Section 31(1) of the RMA sets out the statutory responsibilities for TAs which generally relate to controlling effects associated with the use, development or subdivision of land (section 9(1) and section 11)). In practice, this covers a wide range of effects, particularly those effects arising from earthworks and structures on amenity values.

RCs and TAs are responsible for controlling different aspects of activities. In our view the responsibilities for RCs in relation to works undertaken in proximity to streams are reasonably clear, and generally well understood. In contrast the functions applying to TAs in relation to works undertaken in proximity to streams are broader/more general, so are therefore potentially not so clear. This potentially contributes to the duplication of consents required for works in and around streams.

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3. Regional Reviews of District and Regional Plans

The review undertaken focused on the Auckland, Horizons Manawatu-Wanganui and Canterbury regions. Two territorial authorities (TAs) from each region were examined in terms of the rules that relate to works in and around streams under the relevant district plans as well as the consent requirements within the regional plans. A table for each region has been prepared (sections 3.1 - 3.3) to compare the rules between the district and regional plans and to highlight where consent overlap is occurring. The structure is based on the rules that apply to the residential zone, rural zone and to utilities, with respect to earthworks and the construction and installation of pipelines, culverts and bridges, being common activities undertaken in and around streams. It should be noted however, that not all rule categories could be reviewed under the structure adopted (i.e. there is no rural zone in Auckland City Council's jurisdiction). To avoid repetition, regional rules which apply across the region, have been entered once rather than being repeated in each of the rural, residential and general/utility rules categories.

3.1 Auckland Region (table)

3.2 Horizons - Manawatu-Wanganui (table)

3.3 Canterbury Region (table)

 

3.4 Matters that Councils have Limited their Discretion to

When consent is required from both the territorial authority (TA) and the regional council (RC), overlap may not necessarily occur if the authorities have limited their discretion to different matters. Consequently, a review of the matters that the councils have limited their discretion to for controlled and restricted discretionary activities has been undertaken.

In the Auckland region, there is overlap in the control that Manakau City Council (MCC), Auckland City Council (ACC) and Auckland Regional Council (ARC) have in terms of their controlled and restricted discretionary activities, hence duplicate consents are required. For example, MCC has limited its discretion in relation to earthworks to the following matters, of which ARC has the same restrictions:

Alteration to Natural Landscape, Sedimentation, Runoff, Slope and Land Stability, Vegetation including Riparian Vegetation, Duration, Timing and Staging.

Similarly, MCC and ARC have both restricted their discretion to the following matters in relation to structures in and around streams, which creates overlap of responsibility, particularly where both authorities have an interest in the effects that the works may have on water quality:

Earthworks and fill; reticulate stormwater and overland flowpaths; relationship to nearest waterbody; flooding; water quality and ecology; utilities.

ACC has also restricted its discretion to similar effects in relation to earthworks and structures in and around streams, where water quality appears to be an effect that creates overlap with ARC.

In comparison, the discretion that Ruapehu District Council (RDC) in the Horizons-Manawatu-Wanganui (Horizons) region, has for restricted discretionary activities relating to earthworks is effectively unlimited:

Any actual and potential effects on the environment of the activity due to the noncompliance of the activity with the permitted activity conditions, specifically including cumulative effects which may arise over time or in combination with other effects, but for the purposes of clarification, excluding those actual and potential effects on the environment that would result if the activity complied with all the permitted activity conditions.

Therefore, the control that the RDC has on works in and around streams has the potential to be the same as the RC and may include effects on a water quality and other RC responsibilities.

None of the activities reviewed in the Canterbury region default to controlled or restricted discretionary activities, therefore the overlap that does occur may result in the authorities assessing similar effects on the environment as they have not limited their discretion to any particular effects.

Overall, the potential for both a TA and a RC to have overlapping discretion on a controlled and/or restricted discretionary activity appears to be a common issue.

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4. Case Studies of Where Duplication has Occurred in Practice

The following three examples, illustrate projects that have been subject to duplicate consents from both the territorial authority (TA) and the regional council (RC) involved with jurisdiction over a particular site. They highlight, in a practical sense how such duplication is caused given the nature of projects in and around streams.

4.1 Miro Street Culvert

Ruapehu District Council (RDC) wished to carry out works within the Maukuroa Stream in order to remove an existing culvert and to replace it with a new 4.5 x 1.5 metre precast concrete box culvert, to remedy an ongoing flooding issue.

The earthworks to widen the banks of the stream required resource consent as a Discretionary Activity (Restricted) under rule RU 4.2 of the Ruapehu District Plan, as the earthworks could not comply with condition (53) that no earthworks activity would occur within 20 metres of the banks of a waterway. Hence, a discretionary (restricted) activity was sought under the Operative Ruapehu District Plan for the earthworks activity.

The discretion that RDC had for the earthworks was effectively unlimited:

Any actual and potential effects on the environment of the activity due to the noncompliance of the activity with the permitted activity conditions, specifically including cumulative effects which may arise over time or in combination with other effects, but for the purposes of clarification, excluding those actual and potential effects on the environment that would result if the activity complied with all the permitted activity conditions.

In addition, land-use consent was also required for the earthworks to widen the stream banks as a Discretionary (Restricted) Activity pursuant to LM Rule 3 of Horizons Regional Council's Land and Water Regional Plan. This was because the proposal did not comply with the permitted activity conditions under LM Rule 2, as the earthworks were carried out within 5 metres of the banks of the stream. The matters that Council restricted its discretion to were typical of a RCs functions and focused on matters such as water quality and quantity.

Land-use consent was therefore required from both the TA and the RC for the same earthworks activity, where both Councils appeared to be interested in effects on water quality. This was in part due to the unrestricted discretion that RDC had on the earthworks in and around the stream including an ability to assess effects on water quality.

4.2 Sir Barry Curtis Park Earthworks

In 2004, Manakau City Council (MCC) wished to carry out extensive earthworks to develop Sir Barry Curtis Park. Sir Barry Curtis Park forms an integral part of the structure plan, forming a premier park over 121ha of land, complimenting the future Flatbush Town Centre.

Various consents were required from Auckland Regional Council (ARC) for works within the streambed, diversion of surface water and land-use consent for earthworks. Overlap occurred between ARC and MCC (being the territorial authority as well as the applicant), when land-use consent was also required for the earthworks from MCC. As seen in the above tables (section 3.1), earthworks greater than 200m3 and within 20m of a stream require consent for a discretionary (restricted) activity under rule 9.8.2 of the Manukau City District Plan. As discussed, the matters that MCC restrict their discretion to, overlap with ARC 's when assessing the effects of earthworks in and around streams. Effectively, both were concerned with the effects of the works on the quality of the riparian environment, including water quality.

4.3 Centrewood Farm Limited

Centrewood Farm Limited was in the process of converting a property to a dairy farm on the outskirts of Waimate. As part of the development the applicant sought consent for the diversion of three streams, the installation of 36 culverts and the installation of 5 fords. The applicant sought regional land-use consent from Environment Canterbury (ECan) (Proposed Natural Resources Regional Plan - NRRP) for this activity in addition to land-use consent for carrying out works in riparian zones within the Waimate District Plan.

Under the Rural Zone Rules of the Waimate District Plan, Critical Zone Standard Riparian Management states:

On any land… ..within… ..20 metres of the bed of any river

No earthworks shall:

exceed 50m³(volume) in any one hectare in any continuous period of 5 years, or

exceed 150m² in any one hectare in any continuous period of 5 years… … …

To divert the three streams the applicant carried out earthworks exceeding 50m³ in volume and 150m² in area. Resource consent was therefore sought for earthworks exceeding 50m³ and 150m² within 20 metres of the bed of a river which was a discretionary activity.

In addition, the earthworks to divert the stream could not meet the permitted activity conditions under Rule BLR3 (Proposed NRRP) as the volume of material excavated adjacent to each stream exceeded the permitted amount of 50 cubic metres in any 12 consecutive months. Therefore the earthworks to divert the stream were considered as a discretionary activity under Rule BLR 8 (Proposed NRRP).

Given, that both authorities had unlimited discretion when assessing the effects on the environment, both ended up being concerned with water quality issues creating overlap.

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5. Examples of Rules that Avoid Duplication

From the review of district and regional planning rules, it is seen that within some regions there is direct overlap between the consent requirements for works in and around streams from territorial authorities (TAs) and regional councils (RCs). However, it is apparent that there are rules that have deliberately been written to avoid such duplication. The comparison of regional rules and TA rules in Section 3, identified that consent duplication can be avoided by writing rules that exempt works in and around streams from requiring consent from the TA, where RC consent is required.

In particular, Christchurch City Council (CCC) has written rules that exempt works in and around streams from requiring consent from the TA, where consent for the same works are required from Environmnet Canterbury (ECan).

For example, earthworks consent is not required from CCC where the earthworks activity requires consent from ECan.

5.2.6 Exemptions from development standard 5.2.4

The rules set out in Clause 5.2.4 above do not apply to:

(i) any filling, excavation or structures permitted pursuant to a land use consent granted by the Canterbury Regional Council.

Although these provisions are not yet operative, they are beyond challenge and CCC places full weight on them in their decision making.

Similar exemptions exist for the construction of bridges within the Timaru District Plan where:

5. PERFORMANCE STANDARDS FOR ALL ACTIVITIES IN THIS ZONE

5.11 All buildings and structures shall be set back 30 metres from the edge of any wetland, and 20 metres from the bank of any river or stream except for bridges authorised by Canterbury Regional Council (refer General Rule 6.16 also).

Consequently, there are rules that have been expressly included within district plans to avoid duplication. The two TAs that have included consent exemptions in the Canterbury region, have provided a pragmatic option to avoiding duplication, while still maintaining sufficient control, where the activity may not require consent from the RC. Planners at CCC and ECan were contacted to understand what prompted such exemptions into the CCC plan, and whether in practice the local authorities are confident that environmental effects are adequately dealt with. From our understanding, exemption 5.2.6 was included in the CCC plan as a result of ECan actively advocating for its inclusion. In practice however, there is recognition that the success of the exemption can fall to the ECan 's consent processing officers and their ability to consider all factors in their determination as to whether CCC should be given opportunity to comment or be involved in the process. CCC planners recognise that ECan do consult with CCC when ECan consider that an application is of interest to CCC. However, it is recognised that this process relies on ECan to actively engage CCC, which does create the potential for errors to occur. Although the exemptions in the CCC Plan do reduce the overlap of consents required for certain activities in and around streams, the environmental and consent outcomes are dependent on the relationship and the ability of ECan consent processing staff to involve CCC in their decision making.

Additionally, TAs that expressly permit certain activities such as bridges which are invariably controlled by the RC avoids duplication. Differentiating which structures can be built as a permitted activity, as opposed to generally regulating structures in relation to works in and around streams can also avoid duplication. For example, ACC expressly permits the construction of bridges where they are related to roading purposes. It is assumed that such rules anticipate that such structures will be consented by the RC, where the effects to riparian management and water quality will be managed. We consider these types of rule exemptions and activity differentiation should be further developed for other activities and more widely incorporated into district plans.

In general, the regional policy statements (RPSs) reviewed provide little clarification on the roles and responsibilities in relation to works in and around streams and regulatory responsibility. To avoid such duplication as highlighted in this research, RPSs could provide greater account of the functions and responsibilities shared or delegated to the TAs.

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6. Key Themes

Below, broad themes from the above tables are discussed to provide a summary of the extent of duplication that exists within the three regions reviewed.

6.1 Auckland Region

6.1.1 Earthworks

In general, earthworks in and around streams require consents from both Manakau City Council (MCC) and Auckland Regional Council (ARC), when more than 50m of bed disturbance occurs on Category 1 Streams* (ARC) and when 200m3 of material is disturbed within 20m of the stream centreline (MCC). Where the earthworks are related to network utilities, any volume of material can be disturbed if the utility can conform to Fig 7 of the Manakau City District Plan. It should be noted though, that in practice it is difficult to locate utilities as prescribed by Fig 7, and that earthworks consent from MCC is required in most situations, in addition to the consent required from ARC. Similarly, structures such as stormwater pipes, culverts and bridges generally would require consent from both authorities where the structure is located within or over a Category 1 stream (ARC) and cannot meet the size thresholds and where the structure (assuming it is being built by a utility provider) cannot be built in accordance with Fig 7 (MCC).

Likewise earthworks near streams in Auckland City would typically require consents from both Auckland City Council (ACC) and ARC. Earthworks are controlled by slope and area by ACC, where most earthworks in and around streams would trigger the 5% slope threshold and require consent given the nature of stream banks. Structures such as stormwater pipes, bridges and culverts are provided for as permitted activities where they are for the purposes of a road or network utility. Where such structures are proposed within the dripline of a protected or scheduled tree, consent would, however, be required from ACC. As this is unrelated to riparian management, we do not consider any direct duplication arises for structures.

Both MCC and ACC have comprehensive sediment and erosion guidelines in addition to ARC 's technical publication on Erosion and Sediment Control Guidelines for Land Disturbing Activities in the Auckland Region (TP90). Not only are earthworks consents required in most instances from both the territorial authority (TA) and regional council (RC), but it appears that there is further overlap in terms of providing erosion and sediment control guidance. No analysis of whether the guidelines differ has been undertaken though.

6.1.2 Structures

In terms of utility structures such as stormwater pipelines and culverts, in practice most structures require consent from both MCC and ARC. The exceptions occur when the pipe or culvert can conform with Fig 7 of the Manakau City District Plan or are below the specified thresholds. Planners who regularly work with the Manakau City District Plan, suggest that rarely can utilities be built in accordance with Fig 7, hence most require consent from both MCC and ARC. In contrast the construction of bridges in both MCC and ACC are provided for as permitted activities, and only require consent from ARC as a discretionary activity, which avoids a duplication of consents required.

It is therefore seen, that in many situations where works occur in and around streams, that consent is required from both the TA involved and ARC.

Further, all three Councils reviewed have their own erosion and sediment control guidelines that perhaps causes further duplication - this issue could form the basis of further research.

6.2 Horizons Manawatu-Wanganui Region

6.2.1 Earthworks

In practice, any works related to the maintenance of roading, consent has not been required for earthworks adjacent to streams although the exemption for this has not been included in the Proposed One Plan. However, where the works are not related to roading projects (eg, tracks to access other utilities) or is for a new roading alignment, consent is required from both RDC and Horizons, creating a duplication of consent requirements for the same activity. The Miro Street Culvert is an example of this.

6.2.2 Structures

Likewise, where pipelines and culverts are not related to roading maintenance, or cannot conform to the performance conditions in the utilities rules, consent would be required as discretionary activity from Ruapehu District Council (RDC), and most likely from Horizons. For bridges built for road purposes, no consent is required from RDC.

While there are circumstances that do require consent from both the TA and RCs, duplication is for the most part avoided when the work relates to roading maintenance. It is noted, that where the activity does not relate to roading maintenance, that duplicate consents will invariably be required for earthworks.

6.3 Canterbury Region

In the Canterbury region, the degree of overlap compared to the other regions reviewed, is significantly less due to the exemptions written into the District Plans. Both the Christchurch City Plan and the Timaru District Plan provide exemptions from the rules relating to works in and around streams. Firstly, structures and earthworks located within the permitted Christchurch City Council (CCC) setback, consent from the TA is exempt if consent is required from Environment Canterbury (ECan). This type of exemption is an effective example of how duplication of consent requirements for an activity can be avoided. Equally, Timaru District Council (TDC) has a rule that exempts the construction of bridges from requiring consent, if it has been authorised by the ECan. Although, some duplication still occurs within the Canterbury region (TDC earthworks and structures, excluding bridges), it appears that avoidance of duplication for works in and around streams is being pragmatically administered, by expressly exempting works that require RC consent from the TA 's authority.

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7. Conclusion and Recommendations

7.1 Conclusion

This research has examined the issue of consent duplication between territorial authorities (TAs) plans and regional councils (RCs) plans for works in and around streams. Across the three regions that were reviewed, duplication of consents is a common issue for such works as the construction and installation of stormwater pipes, culverts and bridges and particularly for earthworks in and adjacent to streams. Furthermore, it was established that little guidance or clarification of roles and responsibilities is provided by the regional policy statements reviewed in terms of works in and around streams.

The examples of rules that avoid duplication through expressly exempting works that require consent from the RC are a practicable solution under the current legislation. While the TA retains control over the activity should the RC not regulate it, the approach unquestionably reduces the amount of duplication that occurs when the RC does regulate the activity.

There is also potential for further examination of the issue of overlapping erosion and sediment control guidelines, where TAs and RCs both have guidance material. It is not known whether an earthworks consent from a TA and the associated erosion and sediment control guidelines, plus any duplicated earthworks consent from the RC and compliance with their erosion and sediment control guidelines, match, or whether there is some contradiction or overlap.

Overall, it appears that the issue of consent duplication is reasonably common throughout the regions researched, other than those, which have specific exemption clauses namely the Christchurch City Plan and the Timaru District Plan.

As informed by this research, the following recommendations are suggested as possible ways to reduce the amount of overlap that is occurring between TAs and RCs for works in and around streams.

7.1.1 Local and Regional Recommendations

7.1.2 National Recommendations

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