Other Methods and Statutory Instruments

Other methods and statutory instruments

Other methods

A range of methods other than regulatory controls imposed under RMA plans could be considered in regard to addressing the effects of climate change, including methods that may also be applied through the use of RMA controls (such as land development and subdivision rules based on structure plans). Some of the key mechanisms within the 'toolbox' that can be used as appropriate include:

Civil Defence Plans - these plans prepared under the Civil Defence Act can identify specific coastal hazards and evacuation and support strategies including training needs and community education.

Emergency Response Plans/Recovery Plans - these plans identify appropriate responses to specific events and what the needs of the community will be in the near future after an event - these mechanisms are likely to be required regardless of the management option chosen.

Protective Works - Constructing protective works such as flood banks, sea walls, beach replenishment and other devices to provide a level of reducing the risks from natural hazards.

Community initiatives (e.g. local dune care groups) can both increase the community's awareness of climate change effects (e.g. the impacts of sea level rise on local beaches and community assets) and also assist in implementing preventative or protective measures (e.g. illustrate that action to protect and establish dune systems can help mitigate the effects of unusually high storm surges and wave run-up impacts which are expected to be the norm with a rising sea level).

Monitoring and Reporting - the process of monitoring and reporting on the state of the environment can identify climate change-induced coastal hazards, trends in coastal processes, changes in risk, and further monitoring required to fill information gaps. Specifically it can identify long-term research and investigation needs.

Covenants on land titles - this mechanism can be used to ensure that development on any site that is at risk from coastal hazards is undertaken appropriately and can influence the ability of the owner to develop the site.

Non-statutory agreements - this involves reaching non-statutory agreements with property owners or managers on how existing or proposed developments may be managed in the future, or to set-up "first option" agreements to ensure properties at risk can be purchased by local authorities in the future when sale is contemplated.

Integrated input into other plans and strategies - as appropriate, councils should address the effects of climate change in other strategies or policymaking areas (for example, transportation strategies which consider design and placement of roadways).

Investigations and research - this covers a range of activities, such as ensuring regular and close interaction with research organisations, links with local education providers, regular consultation with lifeline providers and managers etc.

Structure and development plans - when applied to developments on 'greenfield' sites, these mechanisms provide an opportunity for large developments to be designed and managed taking coastal hazards into account, including the location and provision of infrastructure and placing the onus on the developer to include provisions addressing coastal hazards in their development plans.

NZ Standards/Codes of Practice - engineering solutions that can be adopted to manage certain coastal hazards in certain circumstances to provide some degree of certainty. [Note: may be tied into regulatory methods used under RMA, such as through land development and subdivision codes of practice]

Other strategic level methods include education through strategic planning processes, community education programmes, demonstration projects, urban growth strategies, and urban sustainability initiatives.

Other statutory instruments

The Building Act 1991 addresses building work in the interests of ensuring the safety and integrity of the structure through its construction and subsequent use (as distinct from the RMA, which addresses the effects of that structure (or any activity within it) on the environment, and of the environment on that structure (or activity within it)).

Buildings require building consent under the Building Act. Where controls are imposed under both the RMA and the Building Act, both must be met with generally the practical effect that the more stringent control prevails. The Building Act raises questions of whether the land 'is likely to be subject to erosion, avulsion, alluvion, falling debris, subsidence, inundation, or slippage'; or whether the works are likely to 'accelerate, worsen, or result in erosion, avulsion, alluvion, falling debris, subsidence, inundation, or slippage of that land or any other property'. Under s36 of the Building Act, the existence of these natural hazards can be noted on the title of a property.

Although district councils can exercise some judgement about whether to allow a subdivision or development, councils cannot avoid responsibility for avoiding or mitigating effects of natural hazards in favour of reliance on controls under the Building Act. Because the RMA takes a long-term (intergenerational) view, RMA requirements can be more restrictive than those imposed under the Building Act - for example, standards based on 1:100 year events, rather than 1:50 years under the Building Act. RMA plans are important as they may determine whether a building can be sited in the relevant area in the first place. The Building Act (specifically s36) is particularly important where coastal (or other) hazards are discovered after titles have been created or even after development is already established.

The Local Government Act 2002 (LGA) outlines administrative and management responsibilities for regional and district councils, including land management, utility services, recreation assets, transportation and the associated provision of services.

The LGA requires stopped roads along the margins of the coast (along MHWS) to be vested in Council as esplanade reserves. The LGA also establishes the means by which territorial local authorities may collect financial contributions for funding the acquisition, maintenance and development of reserves.

Section 650A1(i) of the Local Government Amendment (No 2) Act allows for district councils to undertake various works in the coastal environment including the erection and maintenance of: quays, docks, piers, wharves, jetties, launching ramps, and any other works for 'the improvement, protection, management, or utilisation of waters within its district (subject to the controls established by the RMA)'.

Community planning is a cornerstone of the LGA, with the requirement to prepare Long Term Plans. There are also specific consultation requirements when preparing these plans, or bylaws under the Act. This has particular significance for coastal strategies, or other management plans that are adopted as part of the response to coastal hazards, including climate-induced coastal hazards. These strategies and plans can be prepared to meet some of the requirements, particularly the consultative requirements of Long Term Plans.

The Civil Defence Emergency Management Act 2002 (CDEMA) is intended to:

  • promote sustainable management of hazards;
  • encourage and enable communities to achieve acceptable levels of risk;
  • provide for planning and preparation for emergencies, and for response and recovery;
  • require local authorities through regional groups to coordinate planning and activities;
  • provide a basis for the integration of national and local civil defence emergency management;
  • encourage coordination across a wide range of agencies, recognizing that emergencies are multi-agency events; and
  • focus on reduction, readiness, response and recovery.

The CDEMA requires that a risk management approach be taken when dealing with hazards. In considering the risks associated with a particular hazard, both the likelihood of the event occurring and its consequences must be considered. The CDEMA is largely an enabling mechanism, which can complement both the BA and RMA. In particular, integration between regional and district councils is achieved with the formation of Civil Defence and Emergency Management (CDEM) Groups comprising representatives from each of the territorial local authorities and the regional council within a region. The CDEMA (s17(1)) outlines the functions of a CDEM Group in relation to relevant hazards and risks. These include:

(a) identify, assess, and manage those hazards and risks;
(b) consult and communicate about risks; and
(c) identify and implement cost-effective risk reduction...

The CDEMA (s48) provides that each CDEM Group must provide a CDEM Group plan and that plan must state the hazards and risks to be managed by the Group and the actions necessary to do so. The CDEMA therefore anticipates that regional and territorial authorities will cooperate in the management of hazards and risk, including coastal hazards.

The Reserves Act 1977 (RA) makes provision for the acquisition, control, management, maintenance, preservation, development and use of public reserves, and includes provision for controlling public access to coastal and rural areas where these are in public reserves. Administering bodies are required to prepare management plans for their reserves, which are open for public comment and review (except most government and local purpose reserves).

While the RA is aimed at providing public use areas and access, these reserve areas may also provide useful buffers from coastal hazards. However, councils must manage reserves to fulfil their purpose(s) under the RA (e.g., whether historic reserve, scientific reserve, scenic reserve etc) and any hazard management function is incidental. Management of the reserves for the purposes of hazard mitigation or avoidance is not expressly covered by the RA and would appear to only be a valid purpose of reserve management to the extent it is compatible with the primary purpose of the reserve. There is also no case-law to support this approach. The concept of a local purpose reserve does appear to be wide enough to include reserves managed for hazard mitigation or avoidance purposes.

The Public Works Act 1981 (PWA) deals with the rights of central and local government to acquire private land for public purposes including for reserves (within the meaning of the Reserves Act), and the procedures for acquiring and disposing of this land. Acquisition of land for reserve purposes is one way of providing for buffer mechanisms.