8 Planning and legal framework (including case law)

This section provides an overview of relevant existing guidance and information on natural hazard management policy and planning, and decision-making processes. This includes:

• an overview of the legal framework and relevant case law
• a summary of available national-level planning guidelines
• a summary of mechanisms available for planners and decision-makers

8.1 The legal framework for natural hazard management

In New Zealand, the Resource Management Act 1991 (RMA) and the Building Act 2004 (BA) provide the primary legal framework for natural hazard management policy, planning and decision making. The Civil Defence Emergency Management Act 2002 (CDEMA) provides the primary legal framework for emergency management policy, planning and decision making.

A number of other acts also impact upon the management of natural hazards in New Zealand, including:

• Local Government Acts 1974 and 2002 (LGA74 & LGA02);
• Local Government Official Information and Meetings Act 1987 (LGOIMA);
• Environment Act 1986 (EA);
• Conservation Act 1987 (CA);
• Soil Conservation and Rivers Control Act 1941 (SCRCA);
• Land Drainage Act 1908 (LDA); and
• Forest and Rural Fires Act 1977 (FRFA).

The first part of this section provides an overview of the natural hazard management legislative framework, highlighting for each Act the relevant authorities, their responsibilities and mechanisms used. The following sections provide additional details for each Act and discuss (where applicable) natural hazard management issues by reference to relevant case law.

8.1.1 Overview of the legal framework

The following tables provide an overview of each Act of relevance to natural hazard management, highlighting the key responsibilities and mechanisms used by each authority. Further detail is provided in subsequent sections.

Table 14. Resource Management Act 1991 (RMA) overview

Authority	Ministry for the Environment / Department of Conservation	Regional Councils	Territorial Authorities
Responsibilities	Provide national guidance / standards / policy	Control use of land for the avoidance of natural hazards Monitoring and keeping records of natural hazards*	Control effects of the use of land for the avoidance of natural hazards Monitoring and keeping records of natural hazards*
Mechanisms	New Zealand Coastal Policy Statement Other National Policy Statements National Environmental Standards	Regional Policy Statements Regional Coastal Plans Other Regional Plans Processing resource consent applications	District Plans Processing resource consent applications Exceptions for emergencies

Table 15. Building Act 2004 (BA) overview

Authority	Central Government	Territorial Authorities
Responsibilities	Establish a licensing regime Set performance standards for buildings	Restrict construction of buildings on land subject to natural hazards Identify and inform where land is subject to natural hazards Control earthquake prone buildings
Mechanisms	Building Regulations (Building Code)	PIMs Building consents and conditions on consents Earthquake Prone Buildings policies and controls

Table 16. Civil Defence Emergency Management Act 2002 (CDEMA) overview

Authority	Central Government	Local Authorities
Responsibilities	Identification of hazards of national significance Sustainable management of hazards Planning and preparation for emergencies and for response and recovery*	Form a CDEM Group Identify, and manage hazards and risks Consult and communicate about risks Implement risk reduction Respond to emergencies Carry out recovery activities Planning and preparation for emergencies and for response and recovery*
Mechanisms	National Emergency Management Strategy National Emergency Management Plans (CDEM Group input)	CDEM Group Plans Maintain organisational structure Recruit and train volunteers Conduct training exercises Provide warning systems Provide communications, equipment, accommodation Participate in MCDEM Strategy/Plans

 

Table 17. Local Government Act 1974 (LGA74) overview

Authority	Territorial authorities
Responsibilities	Manage sewerage and stormwater drainage Manage land drainage and rivers clearance
Mechanisms	Powers to order to cut down trees / roots Powers to make drainage channels Powers to undertake land drainage works

Table 18. Local Government Act 2002 (LGA02) overview

Authority	Local authorities
Responsibilities	Setting out the strategic direction and activities (including natural hazard management) of the local authority Flood protection and flood control works
Mechanisms	LTCCP Bylaws

Table 19. Local Government Official Information and Meetings Act 1987 (LGOIMA) overview

Authority	Local authorities
Responsibilities	Provide for public availability of information held by local authorities (including the identification of natural hazards)
Mechanisms	LIMs

Table 20. Environment Act 1986 (EA) overview

Authority	Ministry for the Environment	Parliamentary Commissioner for the Environment
Responsibilities	Provide to the Government and other public authorities advice on the identification and likelihood of natural hazards and reduction of the effects of natural hazards Ensure that in carrying out functions under the Act regard must be had to matters that would be likely to result in natural hazards*	Assess New Zealand's system of environmental administration Provide advice to environmental managers Ensure that in carrying out functions under the Act regard must be had to matters that would be likely to result in natural hazards*
Mechanisms	Advice Committees	Annual report Can be heard at proceedings

Table 21. Conservation Act 1987 (CA) overview

Authority	Department of Conservation
Responsibilities	Manage natural hazards in conservation areas Close conservation areas for public safety or emergency
Mechanisms	Policy Conservation or hazard and risk management plans / strategies Close conservation areas

Table 22. Soil Conservation and Rivers Control Act 1941 (SCRCA)overview

Authority	Regional Councils
Responsibilities	Manage soil conservation reserves Maintain and improve defences against water
Mechanisms	Make grants Construct and maintain flood protection works Undertake afforestation and destruction of animals Undertake surveys and investigation

Table 23. Land Drainage Act 1908 (LDA) overview

Authority	Regional Councils
Responsibilities	Ensure watercourses and drains do not become a nuisance Cleaning, repairing and maintaining watercourse and drains
Mechanisms	Powers to order removal of obstructions Powers to construct and maintain drains and water courses

Table 24. Forest and Rural Fires Act 1977 (FRFA) overview

Authority	Territorial authorities	Minister of Conservation
Responsibilities	Act as fire authority for territorial area over which have territorial jurisdiction Safeguard life and property related to fire in forests and rural areas	Act as fire authority for state areas Safeguard life and property related to fire in forests and rural areas
Mechanisms	Bylaws Powers to carry out fire control measures	Bylaws Powers to carry out fire control measures

8.1.2 Planning and decision making under the Resource Management Act 1991 (RMA)

Legislation	Section/part	Relevance to natural hazard management
Resource Management Act 1991 (RMA)	s2	Defines 'natural hazard '.
	Part II	Part II explains the purpose of the Act and identifies matters of national importance and other matters (includes climate change).
	s30	Regional councils have responsibility to control of the use of land for the avoidance or mitigation of natural hazards.
	s31	Territorial authorities have responsibility to control the effects of the use of land for the avoidance or mitigation of natural hazards.
	s35	General duty for local authorities to gather information and undertake monitoring - applies to natural hazards.
	s45	Preparation of National Policy Statements
	s58	Contents of NZCPS - National priorities for the preservation of the natural character of the coastal environment
	s59 - s62	Preparation of Regional Policy Statements, including reference to natural hazards.
	s63 - s68	Preparation of Regional Plans in accordance with functions (includes avoidance or mitigation of natural hazards).
	s72 - 76	Preparation of District Plans in accordance with functions (includes avoidance or mitigation of natural hazards).
	s106	Subdivision consent can be refused, or granted subject to conditions, if land is likely to be subject to natural hazards.
	s108	Allows resource consents to be granted subject to conditions, including conditions relating to natural hazards.
	s220	Allows conditions to be placed on subdivision consents, including specific requirements.
	s229	Purposes of esplanade reserves and esplanade strips to contribute to the protection of conservation values by, mitigating natural hazards
	s418	Certain existing permitted uses may continue
	s329-330B	Provides for the issuing of water shortage directions to apportion, restrict or suspend the talking, use, damming or diversion of water at any time there is a serious temporary shortage of water; and resource consent exceptions for immediate preventative or remedial works as a result of natural hazards, and for works undertaken in accordance with the Civil Defence Emergency Management Act 2002.
	4th Schedule	Matters that should be considered when preparing an assessment of effects on the environment any person preparing an assessment of the effects on the environment should consider any risk to the neighbourhood, the wider community, or the environment through natural hazards.

Part II RMA

Part II of the RMA explains the purpose of the Act and identifies matters of national importance, other matters and Treaty of Waitangi matters.

The primary purpose of the RMA is the promotion of the 'sustainable management of natural and physical resources ', which includes enabling people and communities to provide for their social, economic and cultural wellbeing, and for their health and safety (s5).  Under the Act, natural and physical resource include land, water, air, soil, minerals, and energy, all forms of plants and animals (whether native to New Zealand or introduced), and all structures.  New Zealand is susceptible to a great range of natural hazards which have the potential to adversely affect natural and physical resources, and to impact upon the ability of people and communities to provide for their wellbeing and health and safety.  Management of natural hazards is therefore necessary in order to help achieve the purpose of the Act.

Part II includes matters of national importance (section 6), other matters (section 7), and Treaty of Waitangi (section 8) matters, which must be considered when exercising functions and powers under the Act.

Of note is 'other matters ' within section 7 which includes '(i) the effects of climate change '.  Climate change is likely to have important implications for natural hazard management within New Zealand in the future. The primary effect of climate change is expected to be in changing the level of risk from weather-related natural hazards (Ministry for the Environment, Climate Change Guidance Note).

Case law relating to Part II RMA

The Courts have enforced the importance of considering the RMA 's purpose of sustainable management when making decisions on hazard management under the RMA.

For example, in the context of making a decision on a resource consent application, it is not consistent with the principles of sustainable management to locate a facility for the reception, recovery and rehabilitation of wild birds for release back into the wild, which would include a café and an education facility, in an area that is demonstrably subject to coastal hazards Lowry Bay Residents Association v Eastern Bays Little Blue Penguin Foundation Inc W45/01 EnvC, Kenderdine J.

Similarly, in the context of making decisions on the content of a district plan, Bollard J in Bay of Plenty Regional Council v Western Bay of Plenty District Council A27/02 stated that "failure to manage known actual or potential effects of natural hazards … under the Act 's regime would not, in our view, be consistent with the legislative purpose of sustainability".

The importance of considering the purpose of sustainable management when making decisions on plans was also evident in Franks v Canterbury Regional Council, HC Christchurch, CIV2003-485-1131, 10 June 2004, Panckhurst J. In this case the appellant submitted that the Environment Court had not considered the social and economic aspects of sustainability when deciding where to place a building restriction line. However, the High Court decided that the Environment Court 's decision making process had appropriately considered the sustainable management purpose of the Act.

Functions of Central Government

National Policy Statements and National Environmental Standards

 

Sections 43-58 of the RMA provide for the preparation of National Policy Statements (NPS) and National Environmental Standards (NES).

The RMA allows the Minister for the Environment (the Minister) to prepare NPS to guide local authorities on matters of national significance.  Once a NPS has been approved, local authorities must ensure that their plans give effect to it.  The New Zealand Coastal Policy Statement (NZCPS) is the only NPS required by the RMA and is currently the only NPS in place.

A NPS on natural hazards could potentially be prepared under s45 where a natural hazard is of national significance

• anything which affects or potentially affects any structure, feature, place, or area of national significance (s45(2)(c))
• anything which affects or potentially affects more than one region (s45(2)(d))
• anything which, because of its scale or the nature or degree of change to a community or to natural and physical resources, may have an impact on, or is of significance to, New Zealand (s45(2)(f))
• anything which, because of its uniqueness, or the irreversibility or potential magnitude or risk of its actual or potential affects, is of significance to the environment of New Zealand (s45(2)(g))

 

Similarly, the RMA allows the Minister to prepare NES.  These regulations apply nationally and are binding on local government.  Each regional, city or district council must enforce the same standard, although councils can impose stricter standards in certain circumstances.  NES aim to ensure a consistent approach and decision making process throughout the whole country.  Currently, only a series of 14 air quality NES are operative.

NES can be made that regulate matters referred to in s9 and s11-15 (duties and restrictions under the RMA), and include restrictions on the use of land, restrictions on the use of the coastal marine area, restrictions on the subdivision of land, and restrictions relating to water - this could potentially include natural hazards.

New Zealand Coastal Policy Statement (NZCPS)

Plan	Section	Relevance to natural hazard management
New Zealand Coastal Policy Statement (NZCPS)	s8.7	Regard to be had to the susceptibility of the coastal environment to the effects of natural hazards.
	Policy 3.4.1	Identify areas in the coastal environment where natural hazards exist.
	Policy 3.4.2	Recognise the possibility of a rise in sea level.
	Policy 3.4.3	Recognise the ability of natural features to protect subdivision, use, or development.
	Policy 3.4.4	Recognise that in relation to future subdivision, use and development, some natural features may migrate inland.
	Policy 3.4.5	Locate and design new subdivision, use and development to avoid the need for hazard protection works.
	Policy 3.4.6	Coastal protection works permitted only where they are the best option.

 

• Note that the NZCPS is currently under review - provisions discussed in this section are current as at the time of writing.
• The RMA requires the Minister of Conservation to prepare a NZCPS, which guides all coastal management.  The NZCPS sets out general principles for the sustainable management of New Zealand 's coastal environment and contains the national priorities for the preservation of the natural character of the coastal environment.   
• The NZCPS is not specifically required to contain provisions relating to the management of natural hazards in the coastal area (s58 - contents of the NZCPS).  However, provisions can be made with regard to any other matter relating to the purpose of a NZCPS.  This can include management of natural hazards, as protection of the coastal marine area from inappropriate subdivision, use, and development.
• The existing NZCPS contains policies relating to the management of natural hazards in the coastal marine area, and are summarised below:

Policy 3.4.1 requires that local authority policy statements and plans should identify areas in the coastal environment where natural hazards exist.

Policy 3.4.2 requires that policy statements and plans should recognise the possibility of a rise in sea level, and should identify areas which would as a consequence be subject to erosion or inundation. Also, natural systems which are a natural defence to erosion and/or inundation should be identified and their integrity protected.

Policy 3.4.3 requires recognition and maintenance of the ability of natural features such as beaches, sand dunes, mangroves, wetlands and barrier islands, to protect subdivision, use, or development.

Policy 3.4.4 requires that in relation to future subdivision, use and development, policy statements and plans should recognise that some natural features may migrate inland as the result of dynamic coastal processes (including sea level rise).

Policy 3.4.5 requires that new subdivision, use and development should be located and designed so that the need for hazard protection works is avoided.

Policy 3.4.6 requires that where existing subdivision, use or development is threatened by a coastal hazard, coastal protection works should be permitted only where they are the best practicable option for the future, and that the abandonment or relocation of existing structures should be considered among the options.

Hierarchy of coastal hazard management options

The NZCPS considers the management of hazards within the coastal environment according to the potential environmental effects of the selected technique (New Zealand Climate Change Office, 2004a). This provides a broad hierarchy of management options for coastal areas (refer to Outcomes 3 and 3.3 or Policies 3.3.1 and Policy 3.3.2 of the NZCPS) which is outlined below, with 1 being the most preferable and 4 the least preferable.

• Activities and land use practices to protect natural defences
• Management of land use to avoid areas of coastal hazard (e.g. location of development away from coastal hazards, retreat or relocate infrastructure)
• Undertake 'soft structural defence works' such as drainage, revegetation or beach nourishment
• Undertake 'hard structural works' such as building reinforcement, and seawalls

Source: New Zealand Climate Change Office (2004a)

Functions of Regional Councils

Under s30 of the RMA, regional councils are responsible for (among other things) the control of the use of land for the avoidance or mitigation of natural hazards.

Regional councils are able to exercise this control through regional policy statements (s59-62) and regional plans and rules (s63-68).

Regional policy statements allow regional councils to address regionally significant natural hazards.  They may contain issues, objectives, policies and methods (excluding rules) relating to natural hazard management.  Under s62(1)(i), a regional council must state in a regional policy statement the local authority responsible for setting objectives, policies and methods for the control of the use of land to avoid or mitigate natural hazards to an identified local authority.  However, if no such responsibilities are specified, this function is retained by the regional council (s62(2)).

Regional plans, which must contain objectives, policies, and rules, must give effect to any regional policy statements and national policy statements.  Section 65(3)(c) requires a regional council to consider the desirability of preparing a regional plan where, among other things, there is any threat from natural hazards.

The objectives, policies and rules set by regional councils in regional plans establish the basis for assessing land use, water permit, discharge permit, and coastal permit resource consent applications.  They can specify particular natural hazard matters that are to be considered when making decisions on applications for particular activities, or for activities within a particular area.

Section 108 allows conditions to be placed on granted resource consents.  For controlled and restricted discretionary activities, if the regional plan reserves council control to natural hazard matters, these conditions can relate to avoiding and/or mitigating the effects of natural hazards. For discretionary and non-complying activities, conditions can be placed on granted consents regardless of the content of the plan.

Functions of Territorial Authorities

Under s31 of the RMA territorial authorities are responsible for (among other things) the control of the effects of the use of land for the avoidance or mitigation of natural hazards.

Territorial authorities are able to exercise this control through district plan objectives, policies and rules (s72-76), and through processing subdivision and land use resource consent applications and placing conditions on granted resource consents (s106, s108, s220).

District plans allow territorial authorities to create objectives, policies and rules relating to the control of the effects of the use of land for the avoidance or mitigation of natural hazards.  District plans must give effect to national and regional policy statements, and must not be inconsistent with regional plans.  As such, the directive set by the regional council in relation to natural hazard management by regional objectives, policies and rules must be carried through to district plans.

The objectives, policies and rules set by district plans establish the basis for assessing land use and subdivision resource consent applications.  They can specify particular natural hazard matters that are to be considered when making decisions on applications for particular activities, or for activities within a particular area.

Section 106 of the RMA provides an important directive to territorial authorities when assessing subdivision resource consent applications.  Under s106, a subdivision consent can be refused, or granted subject to conditions, if land (or any structure on the land) is likely to be subject to material damage by erosion, falling debris, subsidence, slippage or inundation from any source, or if any subsequent use likely to be made of the land is likely to accelerate, worsen, or result in material damage to the land, other land, or structure by the same.

Section 106 requires the territorial authority to undertake an assessment of how natural hazards might impact a proposed development, and of how the proposed development might impact any natural hazards.

Sections 106, 108 and 220 allow conditions to be placed on resource consent applications.  Placing conditions on granted consents allows territorial authorities to exercise control over the effects of development on natural hazards.  This is particularly so in the case of s106. Conditions set under s106 can be placed on a granted subdivision consent regardless of the activity status of the application and relate directly to mitigating the effects of subdivision on natural hazards.

Conditions set under s108 and s220 are limited to some extent by the activity status of the application. For controlled and restricted discretionary activities, if the district plan reserves council control to natural hazard matters or subdivision matters, conditions under s108 and s220 can relate to avoiding and/or mitigating the effects of natural hazards. For discretionary and non-complying activities, conditions can be set under s108 and s220 regardless of the content of the plan.

Case law relating to s106

a. The meaning of 'material damage '

Section 106 refers to material damage caused by various natural hazards and allows territorial authorities to decline subdivision consent, or to grant consent subject to conditions, if there is or is likely to be material damage to land or structures.

The meaning of material damage was discussed in Henry v Kapiti Coast DC W024/03, 8 NZED 483. In this case the Court explained that there are three types of damage:

• Damage that is not material; s106 therefore does not apply in this case.
• Damage that is material, but where the effects can be avoided, remedied or mitigated. In this case, consent can be granted and the measures imposed as conditions of consent under s106.
• Damage that is material, but the effects cannot be avoided, remedied or mitigated by any measures. Consent would have to be declined in this case.

 

An earlier case also considered the meaning of material damage. In Paviour v Napier CC W106/96 (PT), noted [1996] BRM Gazette 130, the Court decided that material implied something which is of great import, rather than minor slippage, subsidence or slumpage.

b. The meaning of 'likely '

The case of Kotuku Parks Ltd v Kapiti Coast DC EnvC A73/2000 noted [2000] BRM Gazette 89 has implications for deciding when material damage is "likely". In this case, the Court decided that because it is not standard practice to design for catastrophic events with long return periods (events that occur every 250 to 400 years were discussed in the case), s106 would not apply to damage from such events. This implies that catastrophic events are not "likely" to occur for the purposes of s106.

c. Meeting the requirements of s106

Having decided that material damage is likely to occur, the next step is to consider whether to decline consent under s106, or to grant consent subject to conditions. When making this decision, a territorial authority is able to take into account any measures put forward by the applicant that would avoid, remedy or mitigate the hazard effects referred to in s106.

In Foreworld Developments Ltd v Napier CC W089/98, 4 NZED 24, the Court stated that the onus is on the applicant, rather than the council, to propose measures to satisfy s106. It is then the Council's role to determine whether the proposed measures will be sufficient to meet the requirements of s106. If the Council decides that it is not satisfied, it does have a duty to indicate why it is unsatisfied.

The test used to determine if measures proposed by an applicant are sufficient to meet the requirements of s106 is set out in Maruia Soc Inc v Whakatane DC 8/3/91, Doogue J, HC Rotorua, partially reported at (1991) 15 NZTPA 65. The test outlined by this case is whether the measures put forward will result in the land being sufficiently protected to be suitable for subdivision.

The Court stated that the Council's decision on whether the land is sufficiently protected and suitable for subdivision will be a matter of degree. Total or absolute protection is not required.

This case was discussed and applied in Resource Planning & Management Ltd v Marlborough DC 10/10/03, France J, HC Wellington CIV-2001-485-814. The High Court summarised the test set out in Maruia as: the Council "does not have to ensure that the whole of the land is free from the risk of inundation but does have to ensure that 'in its judgement ' the land is 'sufficiently ' protected to be suitable for subdivision". In this case, the High Court decided that the council decision-maker had followed this approach to s106.

When making decisions under s106, councils therefore have to come to a decision on whether the land is suitable for subdivision, taking into account any measures proposed by the applicant to protect the land from the effects of natural hazards.

d. Vesting land as reserve under s106

Vesting land in the council as reserve may be a way to avoid, remedy or mitigate the potential hazard effects to the land (for example from coastal erosion), and therefore a way to meet the requirements of s106.

Because the onus is on the applicant to propose measures to meet s106, the Court in Foreworld Developments Ltd v Napier CC W089/98, 4 NZED 24 stated that the financial burden of any such measures also lies with the applicant. Therefore, there would be a substantial cost to an applicant if a reserve was to be vested in the council as a means of satisfying s106. As such, the Court ruled that consideration of other viable options must be available to the applicant before vesting land as reserve is imposed by the council as a condition of consent.

Functions common to Regional Councils and Territorial Authorities

Section 35 RMA imposes a general duty on regional councils and territorial authorities to gather information and undertake monitoring to effectively carry out their functions under the RMA. Subsection (5)(j) specifically requires regional councils and territorial authorities to keep records of natural hazards.

Section 67 (contents of regional plans) and s75 (contents of district plans) allow regional and district plans to include procedures for monitoring the efficiency and effectiveness of policies and methods contained in the plans.

Gathering information and keeping records of natural hazards provides regional councils and territorial authorities with a body of information that can be used for more effective natural hazard planning. Monitoring the effectiveness of policies and rules and the exercise of resource consents also provides information for more effective natural hazard planning.

Section 67 (contents of regional plans) and s75 (contents of district plans) allow regional and district plans to include methods (other than rules) to be used to give effect to the policies contained in regional and district plans.  As well as rules, non-regulatory methods of implementing natural hazard related policies can be used.  For example, an education programmes used to raise levels of awareness and enhance readiness.

Case law relating to functions of regional and district councils

a. Difference between occurrence of and effects of natural hazards

The Court of Appeal has noted that the reference in sections 30 and 31 of the RMA to the avoidance or mitigation of natural hazards refers to the avoidance or mitigation of the effects of the occurrence of a natural hazard, rather than avoidance or mitigation of the occurrence itself. Canterbury RC v Banks Peninsula DC [1995] 3 NZLR 189; [1995] NZRMA 452, also reported as Canterbury RC v Christchurch CC (1995) 1B ELRNZ 415 (CA), noted [1995] BRM Gazette 97; NZCLD, 5th Series, R—218.

Relating this back to the section of this report that discusses management options, this suggests that under the RMA, regional councils and territorial authorities are only required to use methods that modify behaviour, i.e. elements at risk and vulnerability, and are not required to use methods that modify the hazard itself.

b. Exercising control

The case of McKinlay v Timaru DC C024/01, 6 NZED 308 discusses what constitutes exercising control of the use of land for the purposes of avoiding or mitigating natural hazards, in the context of regional councils (s30). The Court states that it is not enough to set out in a regional policy statement which authority shall take responsibility for developing objectives, policies and rules relating to the control of land for the avoidance of natural hazards. A regional council has to actually implement regional rules to control natural hazards.

c. Overlapping jurisdiction of regional and district councils (s30 and s31)

The courts have considered the matter of the overlapping jurisdiction of regional councils and territorial authorities regarding controlling the use of the land for the avoidance or mitigation of the effects of natural hazards.

The Court of Appeal outlined the limits on functions of regional councils and territorial authorities in Canterbury RC v Banks Peninsula DC [1995] 3 NZLR 189; [1995] NZRMA 452 (CA), noted [1995] BRM Gazette 97; NZCLD, 4th Series, R—218. The Court emphasised that "it is not so much what can be controlled, but the purpose for which it can be controlled". Regional councils and territorial authorities can make rules which prohibit, regulate or allow activities for the purpose of carrying out their functions under s30 or 31. Neither a regional council nor a territorial authority can make rules for purposes falling outside of its functions. To this extent, regional councils and territorial authorities have overlapping rule-making powers and both are able to control the use of land for the avoidance or mitigation of the effects of natural hazards. However, the rule-making powers of a territorial authority are limited by s75, which required, at the time the case was decided, that district plans must not be inconsistent with regional policy statements and plans.

Section 75 now states that district plans must give effect to regional policy statements and must not be inconsistent with regional plans. However this change does not alter the application of this case.

In this case, the Court of Appeal decided that "the Canterbury Regional Council has the power to prohibit or restrict activities such as residential occupation and the erection of buildings in the Waimakariri Flood Plain, for the purpose of avoiding or mitigating natural hazards". This shows a clear overlap of functions as the regional council is able to impose land use controls that would normally be imposed by the district council. However, because the purpose of the control is avoiding or mitigating natural hazards, which is a function of the regional council, the regional council is able to impose such controls.

Another justification for the overlap of functions between regional councils and territorial authorities is the requirement in s30 for regional councils to achieve integrated management of resources in the region. The Court stated in North Shore CC (Re an application) A087/94, [1995] NZRMA 74, 4 NZPTD 90 that in order to achieve this goal, a regional council must be able to impose some measure of restraint on management decisions made by territorial authorities. The Court decided that this could include policies and methods establishing metropolitan limits.

d. Coordination of management between regional councils and territorial authorities

The decisions in the cases discussed above dealing with sections 30 and 31 suggest that coordination between regional councils and territorial authorities is required to effectively manage the effects of natural hazards under the RMA.

The Court has made this suggestion in Re the Tauranga District Council 1 July 2003 EnvC A111/2003. In this case Bollard J acknowledged that the district council shares responsibility for natural hazard management with the Bay of Plenty Regional Council, and stated that "establishment of an integrated approach in terms of methods, which can effectively and fairly address the avoidance and mitigation of particular natural hazards, is essential".

The implication of the decision in McKinlay v Timaru District Council C24/2001 EnvC Jackson J, 6 NZED 308, highlights another reason for coordination between regional councils and territorial authorities. In this case, the Court decided that a dwelling could be rebuilt after being destroyed by a natural hazard, even if the district plan rules prohibited dwellings being built in that location, provided the rebuilt dwelling was the same or similar in character, intensity and scale as the present dwelling, in accordance with s10. This means that s10 existing use rights 'override ' district plan rules.

However, the Court noted the different application of existing use right under s20 (now s20A). The implication is that if there were regional rules in place that prohibited building, the existing use rights would not apply in the same way because the test under s20A is much stricter.

This implies that regional councils and territorial authorities have to work cooperatively when formulating regional and district plan rules in order to avoid a situation where a lack of regional rules allows existing uses to continue after a building has been destroyed by a natural hazard event.

Case law relating to planning horizons

A number of cases have discussed the appropriate risk period to plan for when preparing regional and district planning documents.

Regional plan provisions were discussed in Save the Bay v Canterbury Regional Council C6/2001 EnvC, Jackson J. In this case, the Court considered that there needed to be greater recognition of catastrophic natural events, quoting a statement that 90% of damage to the environment caused by natural hazards occurs in 10% or less of events. The Court suggested that "authorities should recognise this inverse relationship in the preparation and wording of their plans".

District plan provisions regarding coastal development were discussed in Bay of Plenty Regional Council v Western Bay of Plenty District Council A27/02 EnvC Bollard J. In this case potential adverse effects through changed climate conditions and sea level rise were accepted by the Court as existing. The Court also acknowledged the inherent uncertainly in the area of coastal planning. The Court concluded that these factors, together with the principles of the NZCPS pointed to a precautionary approach to planning. As such, in this case the Court stated that it was sound to plan for the 100-year predicted risk period.

District plan provisions regarding coastal development were again discussed by Bollard J in Skinner v Tauranga District Council A 163/02EnvC. Bollard J again stated that a 100-year predicted risk period is reasonable for coastal planning. Factors considered by Bollard J included a lack of field data, the lack of certainly as to the impact of future climate change on various drivers of shoreline movement, and the precautionary element in the NZCPS.

A precautionary approach does not mean a council has to be ultra cautious. In this case, Bollard J removed a safety buffer zone because the effect of the zone would have gone "beyond the extent necessary to ensure sufficient and appropriate recognition of coastal hazard risk to those properties during the 100-year forecasting period".

The case law therefore points to a 100-year planning horizon, particularly for coastal hazard planning. Consideration also needs to be given to events of low frequency that have the potential to cause catastrophic effects.

Case law relating to integrated hazard management

In Save the Bay v Canterbury Regional Council C6/2001EnvC, Jackson J, the Court favoured integrated management of coastal hazards. The Court was concerned that the proposed regional coastal environmental plan addressed only coastal erosion and inundation and no other natural hazards. There were also insufficient rules following on from the stated objectives and policies. Failing to cover all coastal hazards was not an integrated management approach.

Case law relating to the relationship between RMA and Building Act

It is appropriate for councils to consider the potential for a building to be affected by sever storms, salt deposits and spray drift, regardless of the fact that the design and construction of the building is considered under the Building Act, Lowry Bay Residents Association v Eastern Bays Little Blue Penguin Foundation Inc W45/01 EnvC, Kenderdine J.

The Court discussed the relationship between the RMA and the Building Act in Bay of Plenty Regional Council v Western Bay of Plenty District Council A27/02 EnvC Bollard J. In this case the Court outlined the different purpose of each act as follows: "that under the RMA of promoting the sustainable management of resources in the context of the wide environmental perspective that the Act embraces; and that under the Building Act by focussing on the integrity and safety of buildings wherever they are located".

This relationship was again discussed in Re the Tauranga District Council 1 July 2003 EnvC A111/2003. Bollard J summarised the roles of each act as follows: "Under the Resource Management Act 1991 use of land and subdivision should avoid or mitigate natural hazards. The Building Act gives responsibility for granting building consent on land subject to specific natural hazards, with certain exceptions".

Emergency Management under the RMA

• Sections 329-330B of the RMA provide for:
• the issuing of water shortage directions to apportion, restrict or suspend the talking, use, damming or diversion of water at any time there is a serious temporary shortage of water; and
• resource consent exceptions for immediate preventative or remedial works as a result of natural hazards, and for works undertaken in accordance with the Civil Defence Emergency Management Act 2002.

 

8.1.3 Decision-making under the Building Act 2004 (BA)

Table 27. Building Act 2004 (BA), and building regulations summary of provisions

Legislation	Section/ Part	Relevance to natural hazard management
Building Act 2004 (BA)	s35	Inclusion of natural hazards in Project Information Memorandums.
	s71 & s72	Consideration of building consents for the construction of buildings on land subject to natural hazards, and definition of 'natural hazard'.
	s73	Provision for conditions on building consents mitigating natural hazards.
	s122	Provides definition of 'earthquake-prone buildings'.
	s124	Powers of territorial authorities in respect of earthquake-prone buildings.
	s128	Prohibition on the use of earthquake-prone buildings.
	s131	Territorial authority must adopt policy on earthquake-prone buildings.
	s390	Protection from personal liability for issuing a building consent under s72 done in good faith for building on land subject to natural hazards.
Building Regulations 1992 (including the Building Code)	B1.3.3	Account to be taken of all physical conditions likely to affect the stability of buildings.
	B1.3.7	Account to be taken of the effects of changes in ground water level, water, weather, and ground loss and slumping.
	Clause E1	Provisions to safeguard people from injury or illness, and other property from damage, caused by surface water.
	Clause F6	Provisions to safeguard people from injury due to inadequate lighting being available during an emergency.
	Clause F7	Provisions to safeguard people from injury or illness due to lack of awareness of an emergency.
Building (Specified Systems, Change the Use, and Earthquake-Prone Buildings) Regulations 2005	s7	Definition of 'moderate earthquake'.

The Building Act 2004 (BA) provides for the regulation of building work, the establishment of a licensing regime for building practitioners, and the setting of performance standards for buildings. The BA manages natural hazards in relation to the construction and modification of buildings.

Natural hazard management policy, planning and decision-making is undertaken by four main mechanisms within the Act:

1. requirement to record natural hazards within Project Information Memoranda (PIMs);

2. building consent for building work on land subject to natural hazards;

3. provisions and controls for earthquake prone buildings; and

4. provision for the control of building work through the Building Regulations (1992) and Building Code.

Project Information Memoranda (PIM)

A PIM must be obtained for all building work that requires a Building Consent and is the first step in the process to gain legal approval for building work.

Sections 31 to 39 of the BA provide for PIMs. PIMs contain information likely to be relevant to proposed building work and must include the identification of special features of land that are likely to be relevant to the design and construction or alteration of a building or a proposed building. Special features of that land include potential natural hazards.

Building consents

Sections 71 to 74 relate to building consent limitations and restrictions for the construction of buildings on land subject to natural hazards.

Section 71

Section 71 provides for and outlines the circumstances where building consent applications on land subject to natural hazards can be accepted or rejected.

If the land on which the building work is to be carried out is subject or is likely to be subject to one or more natural hazards, or the building work is likely to accelerate, worsen, or result in a natural hazard on that land or any other property, the building consent application must be declined.

However, s71 provides an exception that allows the building consent to be granted if adequate provision has been made to protect the land or building work, or to restore any damage to the land or other property as a result of the building work.

This section also defines 'natural hazard' for the purposes of s71-74 as including:

"erosion (including coastal erosion, bank erosion, and sheet erosion), falling debris (including soil, rock, snow, and ice), subsidence, inundation (including flooding, overland flow, storm surge, tidal effects, and ponding), and slippage"

Case law relating to s71

In Auckland CC v Logan 1/10/99, Hammond J, HC Auckland AP77/99, the Court considered the meaning of "the land" in the context of s36(1)(a) of the Building Act 1991, which has been superseded by s71 of the Building Act 2004. Section 36 read "the land on which the building work is to take place", which is very similar to the wording of s71 "the land on which the building work is to be carried out".

In this case, the Court asked whether the wording refers to the area of land contiguous to the building or to the land in general. The Court concluded that in this case, "the land" referred to the site itself where the building and the site were "intimately connected". As such, "the land" on which the building work is to be carried out does not have to refer to the entire site, but to the land that is intimately connected to the building works.

Section 72

Under s72, building consent authorities must grant building consent for building work on land subject to natural hazards if the building work will not accelerate, worsen, or result in a natural hazard, and it is reasonable to grant a waiver or modification of the building code in respect of the natural hazard concerned.

Section 73

Section 73 provides for the insertion of a notification condition (on the title for the property) within any consent granted under s72. These conditions can relate to structural requirements for flood, wind, fire, earthquake and volcanic hazards.

Earthquake-prone buildings

Subpart 6 details special provisions for certain categories of buildings, including earthquake-prone buildings.

A building is regarded as earthquake-prone according to s122 if, having regard to its condition and to the ground on which it is built, and because of its construction, the building:

• will have its ultimate capacity exceeded in a moderate earthquake (as defined in the Building (Specified Systems, Change the Use, and Earthquake-Prone Buildings) Regulations 2005 - see below); and
• would be likely to collapse causing:
• injury or death to persons in the building or to persons on any other property; or
• damage to any other property.

This definition does not apply to a building that is used wholly or mainly for residential purposes unless the building comprises 2 or more storeys; and contains 3 or more household units.

Section 124 outlines the powers of territorial authorities in respect of such buildings, as follows:

• put up a hoarding or fence to prevent people from approaching the building nearer than is safe:
• attach in a prominent place on, or adjacent to, the building a notice that warns people not to approach the building:
• give written notice requiring work to be carried out on the building, within a time stated in the notice, to:
• reduce or remove the danger; or
• prevent the building from remaining insanitary.

Territorial authorities must develop and adopt policy on earthquake-prone buildings under s131. The policy must state the approach that the territorial authority will take in performing its functions under this Part, the territorial authority's priorities in performing those functions, and how the policy will apply to heritage buildings.

Building Regulations 1992 (including the Building Code)

The Building Regulations 1992, and subsequent amendments, were made under the Building Act 1991 but are now treated as if they were regulations made under the Building Act 2004. (Note that the majority of the 1992 Regulations were revoked as from 31 March 2005, by the Building (Forms) Regulations 2004).

The Building Code forms the first schedule to the regulations and is currently being reviewed to align it with the Building Act 2004. The review will be completed by 30 November 2007.

The Building Regulations 1992 include provisions for the stability of buildings from the effects of physical phenomena. This specifically includes the effects of earthquake, snow, wind, fire, impact, differential movement, water, ground loss and slumping. In addition, the regulations contain provisions to safeguard people from injury or illness, and other property from damage, caused by flooding, and to provide adequate lighting and warnings in times of emergency.

Building (Specified Systems, Change the Use, and Earthquake-Prone Buildings) Regulations 2005

The Building (Specified Systems, Change the Use, and Earthquake-Prone Buildings) Regulations 2005 provide a definition of "moderate earthquake" for the purposes of understanding the meaning of 'earthquake-prone' buildings under s122 of the BA.

A moderate earthquake means, in relation to a building, an earthquake that would generate shaking at the site of the building that is of the same duration as, but that is one-third as strong as, the earthquake shaking (determined by normal measures of acceleration, velocity, and displacement) that would be used to design a new building at that site.

8.1.4 Civil Defence Emergency Management Act 2002 (CDEMA)

Table 28. Civil Defence Emergency Management Act 2002 (CDEMA) summary of provisions

Legislation	Section	Relevance to natural hazard management
Civil Defence Emergency Management Act 2002 (CDEMA)	s3	Gives the purpose of the Civil Defence Emergency Management Act 2002.
	s8-9	Outlines the appointment and functions of the Director of Civil Defence Emergency Management, including provision for the use of Director's Guidelines and technical documentation.
	s12-24	Civil Defence Emergency Management Groups.
	s31-37	National Civil Defence Emergency Management Strategy.
	s39-47	National Civil Defence Emergency Management Plans.
	s48-57	Civil Defence Emergency Management Group Plans.
	s66-73 and 25	Emergency Declarations and Powers.
	s115	Regulations.

 

The CDEMA aims to improve and promote the reduction of risks through:

• partnerships with communities;
• the reduction of community disruption from avoidable hazards and risks;
• the reduction of fiscal risks from the costs of disruption;
• more effective and efficient emergency readiness, response and recovery through the integrated activities of responsible agencies and relevant disciplines; and
• culture, processes and structures that encourage and enable people and communities to undertake risk management, build operational capabilities for response and recover from emergencies.

The entire Act is relevant to natural hazard management in New Zealand. Outlined below are the key provisions contained in the Act.

Hazards and risks coming within the ambit of the Act include those of a 'technological' origin (explosion, leakage or spillage of any dangerous gas or substance, technological failure, failure of or disruption to an emergency service or a lifeline utility, or actual or imminent attack or warlike act) (s4) as well as those arising from natural events.

CDEMA purpose

The purpose of the CDEMA is to:

• improve and promote the sustainable management of hazards to contribute to well-being, the safety of the public and the protection of property;
• encourage and enable communities to achieve acceptable levels of risk by applying risk management; provide for planning and preparation for emergencies and response and recovery in the event of an emergency;
• provide for planning and preparation for emergencies and response and recovery in the event of an emergency;
• require local authorities to coordinate CDEM through regional groups;
• integrate local and national CDEM planning and activity; and
• encourage the coordination of emergency management across emergency sectors.

CDEMA framework and instruments

The purpose of the CDEMA is achieved through the Civil Defence Emergency Management (CDEM) framework outlined within the Act., which includes:

• CDEM regulations (s115)
• National CDEM Strategy (s31-37)
• National CDEM Plan (s39-47)
• CDEM Group Plans (s48-57)
• Director's Guidelines (s8)

The Director of Civil Defence Emergency Management (s8-9)

The CDEMA provides for the appointment of a Director of CDEM, whose functions and duties include:

• advising the Minister of Civil Defence;
• identifying hazards and risks of national significance;
• co-ordinating national implementation and promotion of civil defence emergency management;
• monitoring and evaluating civil defence emergency management;
• developing the National CDEM Plan, technical standards and guidelines;
• monitoring performance; and
• directing and controlling the resources available for civil defence emergency management during a national disaster.

Civil Defence Emergency Management Groups (s12-24)

CDEM Groups are a key part of the CDEMA. A CDEM Group is a grouping of the local authorities in a region, cooperating with emergency services to identify and understand hazards and risks in that region, to prepare CDEM Group plans, and to manage regional hazards and risks. Member groups have equal status and retain autonomy, and formal linkages with emergency service providers are required to be made.

Civil Defence Emergency Management Plans (s48-57)

Under the CDEMA every CDEM Group must prepare and approve a Civil Defence Emergency Management Plan (CDEM Plan). Each plan states the members of each group, the hazards and risks in the area and how each hazard/risk is to be managed. Each plan must also develop objectives and explain the objectives relationship to the National Civil Defence Emergency Management Strategy.

In addition, each plan is required to provide for arrangements for declaring a state of emergency in the region and the arrangements for co-operation and co-ordination with other Groups.

The CDEMA requires public consultation in the development of a CDEM Plan, and any interested persons may submit on the development of the proposed plan. Each CDEM Plan had to be developed within two years after the date of CDEM Group establishment and must be reviewed after no more than five years in operation.

Emergency declarations and powers (s66-73)

The CDEMA provides for local authority mayors (or delegated representatives) or the Minister of Civil Defence to declare a state of local emergency. Only the Minister may declare a state of national emergency. Emergencies have a seven day duration once declared, and can be extended or terminated within that time. Forms for declarations are prescribed by the Civil Defence Emergency Management Regulations 2003.

Emergency powers under the CDEMA enable CDEM Groups and controllers to:

• close / restrict access to roads/public places
• remove / secure dangerous structures and materials
• provide rescue, first aid, food, and shelter
• conserve essential supplies and regulate traffic
• dispose of dead persons and animals
• advise the public
• provide equipment
• enter onto premises
• evacuate premises/places
• remove vehicles
• requisition equipment/materials and assistance.

8.1.5 Local Government Acts 1974 (LGA74) and 2002 (LGA02)

Table 29. Local Government Acts 1974 (LGA74) and 2002 (LGA02) summary of provisions

Legislation	Section/Part	Relevance to natural hazard management
Local Government Act 1974 (LGA74)	Part 6	Manages sewerage and stormwater drainage by territorial authorities including powers to provide for efficient drainage of private land, and maintenance of public drains to protect from flooding
	Part 29	Provides for broad powers in the management of land drainage and rivers clearance, and enables territorial authorities to undertake land drainage and rivers control, including the use of bylaws.
Local Government Act 2002 (LGA02)	s93	Requires local authorities to prepare Long Term Council Community Plans (LTCCPs).
	s149	Enables regional councils to make bylaws relating to flood protection and flood control works.

The LGA74 and LGA02 provide the general framework, obligations, restrictions and powers under which New Zealand's local authorities operate. The purpose of the LGA02 is to provide for democratic and effective local government that recognises the diversity of New Zealand communities. Both the LGA74 and the LGA02 contain provisions relating to flood management.

Many sections of the LGA74 have been repealed by the enactment of the LGA02. However, sections relating to the powers of local authorities in the provision of private drains, regulating the flow of flood water, and controlling drainage channels and watercourses, remain operative within the LGA74. These sections are important for the management of watercourses for flooding and flood protection works within a local authority's boundaries.

The LGA02 follows the direction of control set down within the LGA74 and provides for bylaws which can relate specifically to flood protection and flood control works.

Long Term Council Community Plans

The LGA02 requires local authorities to prepare Long Term Council Community Plans (LTCCPs) to describe the activities and strategic direction of the local authority over a ten year period. This can include descriptions of local authority activities in relation to functions of regional councils and territorial authorities under the RMA (including management of natural hazards).

Flood management under the LGA74

Section 459 of the LGA74 provides powers for local authorities to require owners of land in certain cases to provide private drains including those which are necessary or expedient for the efficient drainage of the premises.

Local authorities have the power to remove, cut down, or grub up, any tree, the roots of which in the opinion of the authority have entered or are likely to enter any public drain, if life, property, or any road is in imminent danger from flood under s468.

Part 29 of the LGA74 enables territorial authorities to undertake land drainage and rivers control, including the removal of obstructions from drainage channels and watercourses where that obstruction is likely to cause loss of life, injury, or damage to property in the district or to obstruct navigation.

Regional councils can make bylaws under Part 29 for the purpose of regulating the erection of any structures where the structure will obstruct, or is likely to obstruct, the free flow of flood waters in any existing flood channel, and / or to require the removal, and burning of trees, plants, and other matter that will obstruct or is likely to obstruct the free flow of water in any watercourse or drainage channel or the free flow of flood waters in any existing flood channel.

Flood management under the LGA02

Section 149 of the LGA02 provides power to regional councils to pass bylaws relating specifically to flood protection and flood control works, amongst others.

8.1.6 Local Government Official Information and Meetings Act 1987 (LGOIMA)

Table 30. Local Government Official Information and Meetings Act 1987 (LGOIMA) summary of provisions

Legislation	Section	Relevance to natural hazard management
Local Government Official Information and Meetings Act 1987 (LGOIMA)	s44A(2)	Provision for Land Information Memoranda (LIM)

LGOIMA aims to provide for the public availability of official information held by local authorities, and to promote the open and public transaction of business at local authority meetings.

LGOIMA provides for Land Information Memoranda (LIM) which must contain information identifying special features on a site, including natural hazards. Under s44A(2) of LGOIMA, a LIM must include information identifying each special feature or characteristic of the land concerned, including (but not limited to) potential erosion, avulsion, falling debris, subsidence, slippage, alluvion, or inundation. The territorial authority has the discretion under s44A(3) to provide for other information concerning the land as the authority considers, at its discretion, to be relevant.

LIMs can be applied for by anyone at any time and disclose information on a territorial authority's files on land and buildings that already exist on a parcel of land. The provision of LIMs places an onus on territorial authorities to ensure good record keeping systems and ensure information recorded on LIMs is accurate, in order to avoid potential legal disputes. LGOIMA does not provide any statutory protection for statements included, or not included, by territorial authorities in a LIM.

8.1.7 Environment Act 1986 (EA)

Table 31. Environment Act 1986 (EA) summary of provisions

Legislation	Section	Relevance to natural hazard management
Environment Act 1986 (EA)	s2	Defines 'natural hazard'.
	s17	Outlines the matters to which regard is to be given in the consideration of issues within the Parliamentary Commissioner for the Environment's functions.
	s31	Outlines the functions of the Ministry for the Environment

The EA, establishes the Ministry for the Environment (MfE) and the Office of the Parliamentary Commissioner for the Environment. The EA aims to ensure that in the management of natural and physical resources, account is taken of intrinsic values of ecosystems, human and cultural values, and sustainability.

The functions of the Commissioner and MfE, outlined within the EA, include obligations in relation to the management of natural hazards.

Functions of the Parliamentary Commissioner for the Environment

The purpose of the Commissioner is to independently assess the capability, performance and effectiveness of the New Zealand system of environmental administration, and to provide advice and information that will assist managers to maintain and improve the quality of the environment.

Section 17 of the EA outlines matters to which regard must be given in the performance of the Commissioner's functions under the Act. Under this section the Commissioner must have regard to whether any proposals, policies, or other matters, the consideration of which is within the Commissioner's functions, are likely to result in the occurrence, or increase the chances of occurrence, of natural hazards.

Functions of the Ministry for the Environment

Section 31 details the functions of MfE, which include the provision (to the Government, its agencies, and other public authorities) of advice on the identification and likelihood of natural hazards and the reduction of the effects of natural hazards.

8.1.8 Conservation Act 1987 (CA)

Table 32. Conservation Act 1987 (CA) summary of provisions

Legislation / Policy	Section	Relevance to natural hazard management
Conservation Act 1987 (CA)	s13	Allows the closure of conservation areas to public entry for reasons of public safety or emergency.
	s17B	Provides for statements of general policy for the implementation of the Act, and for any conservation area. The 'Conservation General Policy' includes a natural hazards section outlining policy on the management of natural hazards within conservation areas.
	s17D-17I	Provides for conservation management strategies and conservation management plans that can potentially be used for natural hazard management.
Conservation General Policy	Policy 8(a)	Provides for the management for natural hazards on public conservation lands and waters, and provides guidance on how any management is to take place.
	Policy 8(b)	Provides for the development of a hazard and risk management plan by the Department where a high level of risk to people, places or property arises from a natural hazard.
	Policy 8(c)	The Department should provide information to enable people to assess the risks from natural hazards that may occur on public conservation lands and waters.
	Policy 8(d)	People will be responsible for their own decisions on the risks that they are prepared to take arising from natural hazards on public conservation lands and waters.
	Policy 8(e)	Allows the Department to notify the closure of any part of public conservation lands and waters to public entry when it considers there to be imminent danger to people and property that cannot be reasonably avoided by other means.

The CA does not specifically aim to manage natural hazards. The purpose of the Act is to establish the Department of Conservation (the Department) and a framework for managing conservation areas within New Zealand. It is not a function of the Department to manage natural hazards under this Act. However, there are a number of provisions within the Act that have relevance when looking at the legislative framework for managing natural hazards in New Zealand.

The most obvious provision relating to natural hazard management is s13, which allows the closure of conservation areas to public entry for reasons of public safety or emergency. However, the provisions relating to management of conservation areas appear to have greater relevance.

The Act provides for a number of mechanisms for the management of conservation areas. Section 17B provides for statements of general policy for the implementation of the Act, and for any conservation area. The 'Conservation General Policy' includes a natural hazards section outlining policy on the management of natural hazards within conservation areas (see below).

Conservation management strategies and plans are other tools that can potentially be used for natural hazard management within conservation areas. Sections 17D to 17I provide for conservation management strategies and conservation management plans. For example, the Canterbury Conservation Management Strategy provides policy on the management of visitor safety to conservation areas within the Canterbury Conservancy - the policy is low level and aims to ensure that information is provided on potential risks from the occurrence of natural hazards on conservation land.

Conservation General Policy

The Department's Conservation General Policy provides for the management of natural hazards on public conservation lands and waters, and provides guidance on how any management is to take place (Policy 8(a)). For example, management of natural hazards should be undertaken with minimal interference to natural processes, natural resources, and historical and cultural heritage.

Policy 8(b) provides for the development of a hazard and risk management plan by the Department where a high level of risk to people, places or property arises from a natural hazard. The hazard and risk management plan should identify options to address risks. Interested people and organisations are to be informed of any proposed actions to alleviate those risks identified within the plan.

Policy 8(c) and 8(d) aim to ensure that the Department provides information to enable people to assess the risks from natural hazards that may occur on conservation lands, and recognise that people are responsible for their own decisions on the risks that they are prepared to take arising from natural hazards on public conservation lands.

Policy 8(e) allows the Department to notify the closure of any part of public conservation lands and waters to public entry when it considers there to be imminent danger to people and property that cannot be reasonably avoided by other means.

8.1.9 Soil Conservation and Rivers Control Act 1941 (SCRCA)

Table 33. Soil Conservation and Rivers Control Act 1941 (SCRCA)summary of provisions

Legislation	Section	Relevance to natural hazard management
Soil Conservation and Rivers Control Act 1941 (SCRCA)	s16-18	Manage and control soil conservation reserves and prevent injury to other land.
	s30	Provision for the Minister to make grants or loans to any person or body for constructing defences against water.
	s126	Powers to construct, alter, repair and maintain works to minimise and prevent damage by floods and erosion.
	s133	Maintain and improve watercourses and defences against water.

	s134	Undertake afforestation and other planting and the destruction of animals that are likely to damage vegetation for soil erosion and flood control purposes.
	s135	Undertake surveys and investigation; purchase land and exercise other incidental powers.

The overriding purpose of the SCRCA is to make provision for the conservation of soil resources, the prevention of damage by erosion and to make better provision for the protection of property from damage by floods. Catchment Boards were established under the Act in order to achieve its purpose, and were responsible for activities within their catchment district. Regional councils have now inherited the functions, duties and powers of a Catchment Board.

With the passage of the RMA, a number of regulatory powers in the SCRCA were repealed and replaced by plan and rule making powers contained in the RMA.

However, regional councils still retain a number of operational functions and powers under the SCRCA. These include:

• functions to manage and control soil conservation reserves (s16);
• powers to construct, alter, repair and maintain works to minimise and prevent damage by floods and erosion (s126);
• maintaining and improving watercourse and defences against water (s133);
• undertaking afforestation and other planting and the destruction of animals that are likely to damage vegetation for soil erosion and flood control purposes (s134);
• undertaking surveys and investigations; and
• purchasing land and exercise other incidental powers (s135).

8.1.10 Land Drainage Act 1908 (LDA)

Table 34. Land Drainage Act 1908 (LDA) summary of provisions

Legislation	Section	Relevance to natural hazard management
Land Drainage Act 1908 (LDA)	s16-s28	Outlines the powers of drainage boards, including power to construct and maintain drains and watercourses, make drains from private lands, and to order the removal of trees.
	s25	Requires regional councils to ensure that watercourses and drains vested in or under their management do not become a nuisance.
	s61	Provides for any local authority not within a drainage district or river district (under the River Boards Act 1908) to have and exercise the powers exercised by drainage boards.
	s62	Empowers regional councils to order the removal of obstructions, where there is any watercourse or drain whose obstruction is likely to cause damage to any property. Regional councils are empowered to direct occupiers or landowners to remove from the watercourse or from their land on the banks of a watercourse, any obstruction that is calculated to impede the free flow of water.

The LDA provides for the establishment of drainage districts and boards and for powers of local authorities in relation to the cleaning, repairing and maintaining of watercourses and drains. Powers are provided to order the removal of obstructions from watercourses or drains where an obstruction is likely to cause damage to property.

Regional councils are required by s25 of the LDA to ensure that watercourses and drains vested in or under its management do not become a nuisance.

Section 61 of the LDA for any local authority not within a drainage district or river district (under the River Boards Act 1908) to have and exercise the powers exercised by drainage boards. Drainage Boards (regional councils) may, for the purposes of the LDA, construct or maintain drains and watercourses, including cleansing, repairing, deepening, widening, straightening or diverting any new or existing watercourse.

Section 62 gives regional councils the power to order the removal of obstructions including earth, stone, timber, trees, plants, weeds where there is any watercourse or drain whose obstruction is likely to cause damage to any property. Regional councils are empowered to direct occupiers or landowners to remove from the watercourse or from their land on the banks of a watercourse, any obstruction that is calculated to impede the free flow of water.

8.1.11 Forest and Rural Fires Act 1977 (FRFA)

Table 35. Forest and Rural Fires Act 1977 (FRFA) summary of provisions

Legislation	Section	Relevance to natural hazard management
Forest and Rural Fires Act 1977 (FRFA)	s10	Sets fire authority for each territorial area as the territorial authority having territorial jurisdiction in respect of that area.
	s11	Sets fire authority for each state area as the Minister of Conservation.
	s12	Fire authorities may make bylaws for fire control purposes and can carry out such fire control measures as the fire authority thinks fit.
	s19(3)	Any measures imposed through s12 (above) must have regard to any relevant national or regional policy statements, regional or district plans or regulations made under the RMA.

s36

This section outlines the powers of principal fire officers and rural fire officers upon the outbreak of fire, and can in specified circumstances, be made subject to the overall requirements of the civil defence controller during a state of civil defence emergency under the CDEMA.

The FRFA provides for the safeguarding of life and property related to fire in forests and rural areas.

The FRFA establishes rural fire districts and fire authorities. The fire authority is deemed to be the territorial authority for each territorial area, and the Minister of Conservation for state areas (conservation land).

The FRFA outlines functions of fire authorities, which include the promotion and carrying out of fire control measures and the development of a fire plan for the district.

Section 12 provides for fire authorities to make bylaws for fire control purposes and to carry out such fire control measures as the authority thinks fit. These measures must have regard to any relevant national or regional policy statements, regional or district plans or regulations made under the RMA. Special powers are provided for the control of activities during periods of extreme fire hazard.

Section 36 outlines the powers of fire officers upon the outbreak of fire.

8.1.12 Other relevant legislation

Legislation relating to natural hazards is not just limited to the Acts and regulations discussed above. There is a variety of other legislation that impacts on how natural hazards are managed. These Acts may place requirements on particular groups, assist in land use planning and hazard identification or they may be the Acts that govern particular lifeline utilities. They include (but are not limited to):

• Climate Change Response Act 2002
• Earthquake Commission Act 1993
• Defence Act 1990
• Broadcasting Act 1989
• Telecommunications Act 1987
• Public Works Act 1981
• Health Act 1956

8.2 National- and regional-level planning guidelines

Currently, there are various national- and regional-level planning guidelines available to assist in planning for natural hazards, many of which are easily accessible through the internet.

National-level planning guidelines have been developed by the Ministry for the Environment (MfE), the Department of Conservation (DoC), the National Institute of Water and Atmospheric Research (NIWA), and other national level organisations. These guidelines tend to be on specific hazards, for example flooding, earthquakes, or coastal hazards.

Table 36 shows a selection of those guidelines for natural hazard planning that are most accessible, but this is not an exhaustive list.

Table 36. National- and regional-level planning guidelines

Note: Please refer to the 'References and bibliography' section of the report for full references.

Publication	Subject	Description	Reference
Planning for Development of Land on or Close to Active Faults: A guideline to assist resource management planners in New Zealand	Faultlines	These guidelines provide direction on land use planning approaches for land on or close to active faults. Includes case studies from Wellington City Council and Kapiti Coast District Council.	Ministry for the Environment (2003b)
Climate change guidance note	Climate change / meteorological hazards	Best practice information (including examples) on considering and responding to climate change effects under the RMA. Outlines methods of response (generally those used for natural hazard management).	www.qualityplanning.co.nz MfE Quality Planning website
Coastal Hazards and Climate Change: A guidance manual for local government in New Zealand	Coastal hazards / climate change	The effects of climate change are likely to lead to increased coastal hazards. This manual provides guidance on appropriate assessment and response options.	New Zealand Climate Change Office (2004a)
Planning for Climate Change Effects on Coastal Margins	Coastal hazards / climate change	Guidance on planning for climate change hazards on the coast, including mitigation and adaptation strategies.	Ministry for the Environment (2001)
Climate Change Effects and Impact Assessment: A guidance manual for Local Government in New Zealand	Climate change	Guidance on identifying and quantifying opportunities and hazards posed by climate change, and incorporating risk assessment into planning processes.	New Zealand Climate Change Office (2004b)
Managed Retreat from Coastal Hazards: Options for Implementation	Managed retreat / Coastal hazards	This report considers a range of options for implementation of managed retreat (shifting assets and activities away from the coastal processes threatening them). It aims to provide an information base to assist in broadening the knowledge of coastal hazard management options, and to form a basis for further discussion on how managed retreat might operate in practice.	Andrew Stewart Limited (2006)
Managing the Flood Hazard: A Civil Defence Emergency Management Perspective, Information for Local Government	Flooding	This report considers roles and responsibilities for flood management, and regimes and mitigation measures to reduce impacts of the flood hazard.	Ministry for Emergency Management (2000)
Options for Managing Risks from Tsunami in the Wellington Region	Tsunami	Although this is a report commissioned for the Wellington region, it identifies a 'tool kit' of management options that territorial authorities can consider for application in their district.	Tonkin & Taylor Ltd (2002a)
Volcanic Risk Mitigation Plan	Volcanic hazards	Although this is an Environment Waikato report, the content is generic to volcanic hazards for all areas. The report describes likely hazards and possible mitigation techniques for before and during a volcanic hazard event.	Environment Waikato (1999)
National Civil Defence Emergency Management Plan Order 2005 ('the National CDEM Plan')	Emergency management	The National CDEM Plan is made under sections 39-47 of the Civil Defence Emergency Management Act 2002 (CDEM Act). It sets out the national level principles, arrangements, commitments and frameworks that apply to the management of states of national emergency or emergencies of national significance.	Ministry of Civil Defence and Emergency Management (2005)

Guide to the National CDEM Plan	Emergency management	The purpose of the Guide is to inform, assist and support New Zealand agencies to prepare for, and respond to, states of national emergency or emergencies of national significance in accordance with provisions in the National CDEM Plan. The Guide provides information on operational arrangements and additional information to support the National CDEM Plan.	Ministry of Civil Defence and Emergency Management (2006)
Earthquake-Prone Building Provisions of the Building Act 2004: Policy Guidance for Territorial Authorities	Building Act / Earthquake-prone policy	A guidance document aimed at assisting territorial authorities in the development of their policies on earthquake-prone buildings, as required by s131 of the Building Act 2004.	Department of Building and Housing (2005)
Assessment and Improvement of the Structural Performance of Buildings in Earthquakes Currently in draft format	Building Act / Earthquake-prone policy	Explains the grading scheme referred to in Appendix 2 of the Department of Building and Housing policy guidance document (as above). The grading scheme is not required by the Building Act but provides territorial authorities with a simple way of determining the earthquake risk grade of buildings. Includes a discussion of legislative and regulatory issues, and implementation issues for territorial authorities.	New Zealand Society for Earthquake Engineering (2005)

There are also a number of additional emergency management guidelines available on the Ministry of Civil Defence and Emergency Management website (www.civildefence.govt.nz).

8.3 Mechanisms available for planners and decision-makers

From the above assessment of the legislative framework and national-level planning guidelines, the following is a summary of the statutory and non-statutory mechanisms available to planners and decision-makers for managing natural hazards:

• Standards - National Environmental Standards; building engineering; codes of practice.
• Policy - National Policy Statements; strategies for sustainable management; earthquake prone building polices; New Zealand Coastal Policy Statement.
• Plans (regional / district) - objectives, policies and methods; control land uses / subdivision; structure plans; annual plans; Long Term Council Community Plans .
• Consents - Resource Management Act consents with conditions; Building Act restrictions / limitations.
• Licensing - Building Act restrictions / limitations.
• Regulatory - emergency works; bylaws; building design; civil defence emergency management.
• PIMs/LIMs - identify potential hazards; identify special features of hazards.
• Works - engineering solutions; forestry planting / buffers; protection works.
• Response planning and management - recovery plans; Civil Defence Emergency Management Plans; warning systems.
• Education - programmes; consultation.
• Research - risk assessments; identification of return periods; information collection .
• Advice and advocacy - best practice guidelines.
• Environmental management systems.
• Financial incentives - rates relief; grants; purchase of land.
• Management of areas / hazards - adopt principles of management; reserves; vesting of land as reserves through subdivision.
• Monitoring of hazards.

Those mechanisms that can be utilised in regional and district plans are discussed in more detail in section 9 of this report.

8.4 Sources of information

The sources of information listed below have been used in the preparation of this section. Please refer to the 'References and bibliography' section of the report for full references.

www.building.govt.nz - Department of Building and Housing (Building Act 2004) website

www.brookersonline.co.nz - Brookers Legal Databases website

www.civildefence.govt.nz - Ministry for Civil Defence and Emergency Management website

www.dbh.govt.nz -Department of Building and Housing website

www.doc.govt.nz - Department of Conservation website

www.legislation.co.nz - Public Access to Legislation Project website

www.mfe.govt.nz - Ministry for the Environment website

www.qualityplanning.co.nz - Ministry for the Environment Quality Planning website

Andrew Stewart Limited (2006)

Department of Building and Housing (2005)

Department of Conservation (2000)

Department of Conservation (2005a)

Department of Conservation (2005b)

Environment Waikato (1999)

Ministry for Emergency Management (2000)

Ministry for the Environment (2001)

Ministry for the Environment (2003b)

Ministry of Civil Defence and Emergency Management (2005)

Ministry of Civil Defence and Emergency Management (2006) - draft version

New Zealand Climate Change Office (2004a)

New Zealand Climate Change Office (2004b)

New Zealand Society for Earthquake Engineering (2005)

Taranaki Regional Council (1992a)

Tonkin & Taylor Ltd (2002a)

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