Regulatory Provisions

Reg1: Biodiversity management/protection as a key theme in plans

Several plans have been developed using biodiversity as a key theme.

District example

The ‘Green Network’ is one of five themes in the Waitakere City District Plan. It consists of the remaining native resources and includes existing native vegetation and fauna habitat, streams, lakes, wetlands, the coastal area and other natural features such as landforms and soils. The four layers of the Green Network are: a descriptive layer; a land use management layer; a restoration layer; and an asset layer.

The green layer (land use management) areas (‘Natural Areas’) are shown on one set of district plan maps. Every part of Waitakere City fits into one of six Natural Area categories. The maps also show ‘natural landscape elements’ (eg, sensitive ridge lines) that are subject to separate rules. The Natural Area rules address the following six activities that are considered to have the greatest impact on natural resources: vegetation clearance; earthworks; impermeable surfaces; stock grazing; weeds, pests; and subdivision (densities and design).

A matching set of district plan maps shows the ‘Human Environments’. Every part of the city also fits into one of 11 Human Environment categories. The Human Environment rules address the effect of people on other people (eg, effect of noise when building a house).

The Council also uses a suite of non-regulatory mechanisms to improve the quality of the Green Network, including encouraging linkages and corridors.

Regional example

The Horizons MW One Plan combines the Regional Policy Statement (part I) and all the regional plans (part II), including the regional coastal plan into one integrated planning document where threatened native habitats is one of four major regional issues identified.

The One Plan identifies ‘rare and threatened’ habitats and ‘at-risk’ habitats by type for terrestrial environments and water bodies by name. In the rare and threatened habitats, rules in the One Plan restrict: vegetation clearance; discharge of contaminants; and drainage or diversion of water. In the at-risk habitats, vegetation clearance and land disturbance are also regulated.

Proactive management to improve the quality of the best representative examples of rare and threatened habitats and at-risk habitats is to be addressed using a variety of non-regulatory tools.

Strength

• This can assist an integrated approach to address biodiversity matters under the RMA, as well as coordinating regulatory and non-regulatory approaches to maximise benefits.

Limitation

• More council resources may be required to develop such a plan.

The following factors improve the likelihood of success for this approach:

• council commitment to beneficial outcomes for biodiversity on public and private land and in aquatic environments
• community support for a comprehensive approach to biodiversity protection and management at the local authority level.

Reg2: Zones with restrictive rules for biodiversity protection purposes

Zones, areas or overlays can be designed specifically for biodiversity protection purposes. Zones can be defined by ecological factors (for example, the location of indigenous vegetation); a formula (for example, a set distance from a water body); or a combination of ecological parameters and property boundaries. The associated policies and rules are designed to protect the natural values within the zone. Where the zone is associated with a water body, the management of the zone may also contribute to the protection and/or enhancement of the ecological values of the water body itself.

However, under s76(4A) and s76(4B) of the RMA, district plan rules applying to urban allotments, regardless of any zone, area, or overlay, cannot restrict the felling, trimming, damaging, or removal of a tree or trees unless the tree(s) a schedule to the plan describes the trees and specifically identifies the allotment by street address or legal description. See the Ministry for the Environment's website for more information on tree protection in urban environments.

Strengths

• The information requirements are relatively moderate compared with the comprehensive requirements for a district (or regional) schedule of ecologically significant sites.
• The precise location of zone boundaries is less critical than for scheduled sites.
• A zone can provide a holistic approach to biodiversity protection as it can include linkages and buffers around key sites of biodiversity value.

Limitation

• Specialist zones with restrictive rules generally require effective landowner consultation.

The following factors improve the likelihood of success for this approach:

• the proposed zone has a coherent theme or purpose (eg, protecting the natural wildlife habitats and vegetation around estuary or lake margins)
• the proposed zone boundary is based on good quality information about the existing and potential biodiversity values within the zone
• the council has access to recent detailed aerial photographs for that part of the district where such a zone could be appropriate
• the council is prepared to consult with affected landowners.

Reg3: Schedules of ‘significant natural areas’ with associated rules

A schedule of ecologically significant sites can be contained in a district plan and referred to in rules, or policies or objectives. Where a rule relies on a schedule the rule can be framed to prevent or manage certain damaging activities specifically within an identified ecologically significant natural area.

District plan schedules usually include terrestrial habitats and wetlands within the district boundaries. Relevant activities that may be addressed by rules include the clearance and/or removal of native vegetation; logging of native trees; infilling and drainage of wetlands. Where schedules are used to protect trees on urban allotments, the schedule must identify and describe the trees being protected in accordance with s764A-764B of the RMA.

Regional plan schedules can also be used. Examples include schedules of wetlands, water bodies or coastal marine sites with restrictive rules. Regional plan schedules can also identify areas of significant terrestrial habitats

Strengths

• Schedules with rules can be easier for district councils to administer than district wide rules because particular sites have already been identified as being of      ecological significance.
• Where there has been an effective consultation process with landowners, a schedule can help target council actions to improve biodiversity outcomes on private land. This can include targeted financial and other incentives.
• It provides certainty for landowners and the council as to what is included and what is not included.
• Where a schedule is based on comprehensive and quality information, it can be used in a variety of council decision-making processes and for monitoring purposes.
• A comprehensive schedule can be used to effectively target incentives and other assistance to landowners.

Limitations

• If rules restricting activities that could adversely affect the state of biodiversity apply only to those sites included in a schedule, landowners may seek exclusion from the schedule. Depending on whether the decision for exclusion from the schedule is based on ecological criteria or landowner choice, the final schedule may be composed of only a few ecologically significant sites. In the latter situation, other ecologically significant sites would remain outside the schedule.
• The rules only apply to those areas included within the schedule. If this schedule contains few of the areas of ecological value within a district or region, the effect of such rules on the state of biodiversity within the district is likely to be limited without appropriate additional methods.
• Comprehensive and up-to-date information on the natural values and vulnerability of an entire district or region is generally not available unless it has been collected specifically for a schedule. Existing information is usually highly variable in age, quality and coverage. It has often been collected for quite different purposes and may not be suitable for inclusion within a RMA schedule.
• A comprehensive schedule of ecological sites cannot be assumed to include all significant sites, due to the inherent difficulties of region or district wide ecological surveys. Even well planned and executed surveys will inevitably miss significant sites due to database errors, inadequate access or the inability to detect populations of threatened biota.
• Schedules need to be regularly reviewed and updated in the medium to long term in response to ongoing land use changes, such as vegetation clearance.
• Landowners can misinterpret the intention or effect of a schedule. For example, they may think that they require resource consents for activities for which no consent is required, or they may be required to fence the identified site. Alternatively, they may be concerned that they will lose some control over part of their property. They can be distrustful of what a future council may do, even if the current provisions are not a problem.
• Schedules with rules can bring forward land use debates that may not arise for many years, if at all. This is because landowners may wish to keep their options open and may be concerned that future councils may introduce stricter rules and/or make it more difficult to get a resource consent for activities within identified significant ecological sites.
• Sufficient time and resources need to be provided for early consultation with landowners. This can be a problem when resources are limited and/or plan preparation timetables are tight.

Schedules and maps of areas may be appropriate to use in a number of circumstances including:

• when a council intends to resource the development of an information base and take advantage of economies of scale and of standardised information gathering and assessment methods appropriate for the council’s purpose
• in highly developed districts where there is a depleted cover of indigenous vegetation and habitat, with smaller, discrete areas with distinctive boundaries that are easily mapped and described
• when development pressures are high and many areas are likely to need assessment and consideration by council staff in response to resource consent applications
• when accurate and up-to-date information is available for a council to use in its assessment of significance.

Where a group of trees on one or more urban allotment is protected by a rule in a district plan, aerial photography and/or GIS mapping can be used as part of, or in addition to, the schedule to help identify the protected trees.

The following factors improve the likelihood of success for this approach:

• the council undertakes a comprehensive consultation programme with affected landowners before including the schedule in a notified plan
• the community within the district/region is generally supportive of measures to protect indigenous biodiversity of remnants
• the council offers, or intends to offer, incentives and advice to promote the protection of identified significant sites where they are on private land.

Reg4: Schedules of ‘significant natural areas’ without associated rules

A schedule of ‘ecologically significant’ sites that may or may not be part of a plan can be provided in plans. In contrast to the previous approach there are no rules associated specifically with this type of schedule. The purposes of such schedules include assisting the council with its decision-making processes and/or providing a basis for conservation incentives.

A territorial authority using this approach would also need to include rules controlling the modification of indigenous vegetation and wetlands (or similar) throughout a larger area of district. This is because case law indicates an inadequate schedule with rules and, by implication, a schedule without rules would not on its own address the RMA requirements for biodiversity.

Strengths

• If there are no rules, landowners are likely to be more accepting of their property being included in a schedule.
• A comprehensive schedule can be used to effectively target incentives and other assistance to landowners.

Limitations

• A territorial authority will still need to use rules controlling certain ecologically damaging activities. Such rules would not be directly linked to a schedule of ‘significant natural areas’.
• Considerable resources are required to compile a comprehensive and up-to-date schedule.

Reg5: District wide rules on indigenous vegetation clearance, logging and/or modification

A number of districts have rules specifying the maximum area of indigenous forest or vegetation that can be cleared or logged before a resource consent is required. Often this maximum area is what can be cleared over a period of time (often one or multiple years). The maximum area may vary between zones. For example, a larger maximum area may be used in a rural zone and a smaller area used in a rural–residential zone.

Where such rules apply the plan contains a definition of indigenous forest or vegetation. Such definitions vary between plans. In some cases, a vegetation clearance rule uses a minimum vegetation height above which consent must be obtained. The specified minimum height may either be in the rule itself or in some cases in the definition of indigenous vegetation.

Some definitions of ‘indigenous vegetation’ exclude manuka and kanuka – even though they are clearly indigenous species and can form some important ecological associations. Equally, on former indigenous forest sites they can provide a good nursery area for other indigenous species.

Restricting vegetation clearance through district wide rules is likely to be considered a form of blanket tree protection. Therefore, pursuant to section 76 of the RMA, district wide rules in district plans can only apply to an urban environment allotment if the trees are identified and described in a schedule to the plan.

Strengths

• District wide rules on vegetation clearance can allow councils to avoid investing considerable resources compiling comprehensive biodiversity databases.
• District wide rules may reduce landowner opposition, because the rules apply equally to everyone and particular areas with restrictive rules are not specifically identified in the district plan.
• Potential alternative uses for areas with an indigenous vegetation cover can be addressed at the time of any application rather than all together when a schedule with restrictive rules is introduced in a plan change or new plan.
• The onus for collecting information on biodiversity values rests with applicants who wish to clear or modify indigenous vegetation. This contrasts with schedules where the onus is on the council to obtain comprehensive and accurate information about indigenous habitats throughout the district.

Limitations

• Vegetation clearance rules stipulating small permitted areas of clearance and/or modification within defined time periods can potentially lead to large district or region wide adverse cumulative effects over time.
• There can be a relatively low level of certainty because particular areas of indigenous vegetation and wildlife habitat are not specifically excluded from being covered by the rule. Some councils allow landowners to proactively provide a report from a council-recognised ecologist that argues that a particular area of indigenous vegetation or potential wildlife habitat is ‘not significant’ (eg, Far North District Council).
• Landowners may clear or damage indigenous vegetation because they are unaware of vegetation clearance rules. This is a particular risk if the rules have not been well publicised.
• Where there is limited context information, it can be difficult to determine the relative value of particular areas of indigenous vegetation or wildlife habitat.
• If the definition of indigenous vegetation used in a plan excludes ecologically important vegetation types, this can undermine the ecological utility of a rule controlling indigenous vegetation modification.
• Monitoring is difficult. For example, the extent of clearance cannot be accurately determined if there is inadequate information on the extent of indigenous vegetation when the rule came into effect.
• Where vegetation clearance rules are based on height, this can result in perverse ecological outcomes, especially where there is no schedule that could potentially identify ecologically important areas of shorter stature.

The potential consequences of height-based clearance rules mean that native ‘low lying’ vegetation can be removed as of right, or as a controlled activity where exotic species which can grow faster become protected.

Rules that only control modification of indigenous vegetation above a minimum height may not provide any protection to the majority of threatened plant species outside of reserves and covenants, or scheduled sites. Also, in some cases, it may be unclear whether such a rule would apply to all indigenous vegetation within an area where the canopy exceeds a minimum height, or whether understory below the minimum height may be cleared.

Both of these problems may be able to be addressed by including special provisions for the habitats of threatened species and/or using a more inclusive definition of indigenous vegetation. Such a definition should clarify that the understory vegetation is included.

District wide rules restricting activities such as vegetation clearance are likely to be appropriate in a variety of circumstances including when:

• development pressures are low and it is unlikely that information will be required for a majority of the indigenous vegetation and habitat over the lifetime of the plan or policy statement
• the district contains large tracts of indigenous vegetation and habitat, which often occur within a complex mosaic of land covers, making it difficult to accurately delineate appropriate vegetation and wildlife habitat boundaries
• there is little recent accurate information available about the indigenous vegetation and habitat in the district or region, and it is likely that significant indigenous vegetation or significant habitat of indigenous fauna would be omitted from a schedule
• it is highly likely that a schedule would be incomplete because the commonly used rapid survey methods would not detect rare and threatened species (including cryptic species) that may be present
• a schedule of ecologically significant sites could be based on disputed information
• the council wishes to provide a degree of protection to areas that would not qualify as significant, but collectively provide important ecosystem services or intrinsic ecological values
• the vegetation to be protected is not within one or more urban allotments.

Reg6: District rules allowing landowners to seek exemption from vegetation clearance/modification rules

A number of district councils have rules requiring landowners to obtain a resource consent for the clearance/modification of indigenous vegetation over and above what is allowed by way of a permitted activity. As this can create some uncertainty for landowners, several councils provide a system whereby landowners can obtain a certificate of compliance stating that a specific area of indigenous vegetation is not ‘significant’ using a specified set of criteria.

Strength

• Such a provision can help councils obtain rural landowner support for general indigenous vegetation clearance/modification rules in districts where there are relatively large amounts of indigenous vegetation.

Limitations

• Over time, a large number of certificates may be issued in an area and if clearances are delayed, the ‘significance’ of areas that are assessed later may be underestimated if the earlier areas are subsequently cleared.
• If these certificates are not time-bound, they may a cause a problem many years in the future if someone decides to exercise their right to clear what may have become more ecologically valuable over time.

The following factors improve the likelihood of success for this approach:

• there are consistent and thorough criteria for assessment and an agreed and transparent process for obtaining such a certificate
• the certificates are time-bound
• there is a database of where certificates have been issued
• the ecologist is appropriately qualified.

Reg7: Regional rules on vegetation clearance or modification

Regional council land management plans may have rules requiring regional council consent for clearance of vegetation. These rules typically are for vegetation on steeper slopes (eg, greater than 20 degrees), vegetation adjoining water bodies and for larger areas of clearance. The primary purposes of these rules have been: soil conservation; aquatic ecosystem maintenance and enhancement; the maintenance and enhancement of water quality; and the avoidance and mitigation of natural hazards. This has meant that rules regulating vegetation clearance have typically applied to both native and introduced vegetation.

Rules can also be for the purpose of providing for the maintenance of indigenous biodiversity, which may increase the scope of indigenous vegetation or wildlife habitat covered and increase the factors addressed in decision making.

Regional councils are not prevented from using rules in regional plans as a method for maintaining indigenous vegetation in urban environment allotments.

Strength

• Regional rules controlling vegetation clearance on steeper slopes and riparian margins have a long history RMA and previously s34 notices under the Soil Conservation and Rivers Control Act 1941) so are generally well accepted by the rural community.

Limitation

• In the past, Environment Court decisions have limited regional council consideration of vegetation clearance impacts on biodiversity to impacts on aquatic ecosystems. The 2003 amendment to the RMA has expanded this to biodiversity generally.

Reg8: District rules restricting wetland drainage and infilling

Some district plans contain a rule specifying a maximum area or size of wetland that can be drained or subject to infill before council consent is required. Often this maximum area applies over a period of time (often one or multiple years).

Strengths

• District wide rules on wetland drainage and infilling can allow councils to minimise resources expended on compiling comprehensive biodiversity databases.
• District wide rules tend to reduce landowner opposition because the rules apply equally to everyone and particular areas with restrictive rules are not specifically identified in the district plan.
• Potential alternative uses for wetlands can be addressed at the time of any application rather than all together when a schedule with restrictive rules is introduced.
• The onus for collecting information on biodiversity values rests with applicants who wish to drain or fill in a wetland. This contrasts with schedules where the onus is on the council to obtain comprehensive and accurate information about indigenous habitats throughout the district.

Limitations

• There can be a relatively low level of certainty because particular wetlands and wet areas are not specifically excluded from being covered by the rule.
• Landowners may undertake drainage or infilling works because they are unaware of the relevant district plan rules. This is a particular risk if the rules have not been well publicised.
• It can be difficult to determine the relative value of particular wetland or wet area that is the subject of an application where there is only limited ecological information that can provide context.
• Monitoring is difficult. For example, the extent of clearance cannot be accurately determined if there is inadequate information on the extent of indigenous vegetation when the rule came into effect.
• Specifying a maximum area that can be drained or subject to infill before a resource consent is required could lead to ongoing cumulative loss of wetland area. Ongoing loss of wetlands is contradictory to National Priority 2 in the Statement of National Priorities for Protecting Rare and Threatened Indigenous Biodiversity on Private Land.
• There may be some conflict with regional plan rules on river/stream beds and drainage.

The following factors improve the likelihood of success for this approach:

• there is community awareness that a variety of different types of wetland can be ecologically valuable and so it is appropriate to apply for consent before undertaking potentially damaging activities
• council staff understand the key differences between wetland types and how these different types can be affected by human activities
• ecologists undertaking assessments of wetlands for landowners are required to have a minimum acceptable level of qualification and expertise
• there is integration between the relevant regional and district plan provisions applying to wetlands.

Reg9: Regional rules restricting ecologically damaging activities for wetlands, lakes and rivers

Regional plans address various damaging activities affecting wetlands, rivers and lakes. Typically the emphasis has been on core council functions including soil conservation, water quality and quantity, river and lake bed management, and natural hazards. The types of activities regulated can include:

• damming, diversion, taking natural water and discharges
• planting in river and lake beds
• taking heat or energy from natural waters and geothermal resources
• construction of structures in river and lake beds
• alterations of flow regimes and water levels (including wetlands, rivers and lakes).

The nature of the rules and other methods varies between regions. The treatment of indigenous biodiversity using such rules has varied.

The partly operative Environment Waikato Regional Plan requires that new drain creation and the deepening of drain invert levels in and around wetlands are controlled by rules. Under rule 3.7.4.6, these activities have discretionary status within 200 metres of the legal property boundaries of an extensive list of wetlands. Under rule 3.7.4.7, these activities have discretionary status within wetlands of significant indigenous vegetation and significant habitats of wildlife.

Reg10: Regional rules and methods to encourage landowners to enhance wetlands

In the Environment Bay of Plenty Regional Water and Land Plan, rule 79 (chapter 9) provides for wetland modification for the purposes of wetland maintenance and enhancement to be a permitted activity where the activity is:

• in accordance with a (landowner) Wetland Management Agreement with Environment Bay of Plenty, a public agency reserves management plan and a conservation management strategy
• is consistent with the relevant policy (135) in the plan
• is restricted to an extensive list of activities.

Chapter 8 contains the policies and methods for wetlands. This provides more information about Wetland Management Agreements, which are intended to be a cost-effective and efficient alternative to resource consent processes and to promote and achieve best management practices for the site. They are voluntary agreements to promote wetland management and facilitate specified works that are necessary for wetland maintenance and enhancement.

Reg11: Regional rules restricting a wide array of ecologically damaging activities for terrestrial and aquatic rare, threatened and at-risk habitats

The Horizons MW Proposed One Plan specifies a number of activities that are restricted to different levels particularly for ‘rare and threatened’ habitats and to a lesser degree ‘at-risk’ habitats. Schedule E, table E1 provides a comprehensive list of ‘rare’, ’threatened’ and ’at-risk’ habitats within the region based on indigenous vegetation type. Their physical locations are not specified. Table E2 specifies the criteria for defining a ‘habitat’ for the purposes of plan implementation. The criteria address structural class, vegetation or habitat type and minimum sizes for different biotic associations.

Policies 7.2 (activities in rare and threatened habitats) and 7.3 (activities in at-risk habitats) provide an overview of the intent of the plan rules. The associated rules for land are in chapter 12.

The activities that are restricted are:

• vegetation clearance and land disturbance
• drainage or diversion of water within or near these areas.

Activities for the purposes of pest control and habitat enhancement are excluded. In rare and threatened habitats these activities are non-complying, while in at-risk habitats they are discretionary.

Vegetation clearance and land disturbance on coastal foredunes and the margins of rivers, lakes and wetlands are discretionary activities.

Strengths

• The regulatory focus addresses types of habitat rather than specific locations so this does not require an accurate database of where each habitat is located.
• This approach is probably more acceptable to landowners than a schedule of specific sites with associated rules.

Limitations

• Landowners may not realise that an area they proposed to clear or drain is of a habitat type included in schedule E. This will need to be addressed by comprehensive research and ongoing landowner education.
• If there is no database of where the specified habitats are located then it will be difficult to monitor change and therefore policy effectiveness.
• This approach may result in the loss of some areas of habitat that are not rare or threatened but may provide important linkages and corridors for wildlife.

The following factor improves the likelihood of success for this approach.

• Landowner education about the rules and the habitat types in schedule E. This may need to include direct contact so that a landowner is able to see which parts of their property are affected.

Reg12: Combination of schedule of ecologically significant sites and district wide rules controlling vegetation clearance (and wetland drainage)

Some district plans combine a limited or ‘incomplete’ schedule of ecologically significant sites with rules controlling vegetation clearance throughout a wide area (often the district). The rules applying to the sites in the schedule are usually stricter than those applying elsewhere. There may also be additional incentives available for scheduled sites.

Strengths

• This approach can be useful when information on a district’s biodiversity values is incomplete. The well-known sites can be included in a schedule and other sites can be evaluated as and when the need arises when an application is lodged.
• A combined approach can reduce landowner concerns compared with a full schedule. This is because the sites with more uncertain status would not be included in the schedule.

Limitations

• Effective landowner consultation is still required for sites included within the schedule.
• Sufficient information on the district’s biodiversity values is required to ensure that the schedule is accurate.
• If the schedule has a high profile, the district wide rules controlling vegetation clearance may be overlooked by landowners.

The following factors improve the likelihood of success for this approach:

• there is good information on the biodiversity values of the district but not enough to identify all areas of biodiversity value
• the council wishes to use a comprehensive regulatory approach to address biodiversity protection and incentives are available for sites on the schedule
• the rule controlling vegetation clearance should be sufficiently inclusive to include all types of areas that may be ecologically significant.

Reg13: Linking rules to criteria identifying significant natural areas

Many district plans and regional policy statements include a set of ‘criteria’ for identifying significant natural areas. The style and substance of these criteria can differ considerably between planning documents.

Some councils link the criteria for identifying significance (for the purpose of s6(c) of the RMA) to rules. One purpose for such rules can be to extend the applicability of the rules relating to development privilege or subdivision beyond significant natural areas currently identified on planning maps and/or in schedules. An example of this is rule 7.14.3.2 for the “subdivision of the sites for the protection of native bush or significant natural areas” in the Rodney District Plan.

Other uses for criteria include:

• to add sites to a schedule of significant natural areas
• to use when assessing resource applications that may affect areas of indigenous vegetation or possible wildlife habitat
• to use when assessing applications to clear, drain or modify indigenous vegetation and/or wildlife habitat (depending on the nature of the rule that requires such applications).

Examples of criteria for assessing ecological significance

Environment Bay of Plenty Regional Policy Statement. Appendix F specifies criteria for assessing specified matters in the Bay of Plenty Region, and set 3 addresses significant indigenous vegetation and habitats of indigenous fauna. Appendix G contains the criteria for assessing whether subdivision, use and development are appropriate.

Environment Waikato Regional Policy Statement, appendix 3 (PDF).

Environment Waikato – Guidelines (Technical report: Areas of significant indigenous vegetation and habitats of indigenous fauna in the Waikato Region).

Reg14: District rules and methods to specifically address aquatic ecosystems

District plan rules and methods for land use can have a major impact on aquatic ecosystems. Where such provisions are developed in conjunction with the relevant regional council this helps to ensure that all relevant aspects are appropriately addressed and minimises duplications and omissions of functions.

Strength

• In areas with ongoing land use development regional councils are limited in what they can achieve using their functions alone. A comprehensive approach to addressing the potential impacts on aquatic ecosystems of land use activities controlled by the district is also needed.

Limitation

• Many of the damaging impacts on aquatic ecosystems are from existing land use activities. Non-regulatory approaches are normally more effective for improving existing land use practices.

The following factor improves the likelihood of success for this approach:

• a good working partnership between the regional council and the district councils.

Reg15: District rules controlling farming of potential pest animal species

Several district plans contain rules specifying fencing requirements and various notification requirements for the farming of specified animal species within a certain distance of a large area of public land with important biodiversity values. Normally this approach is applied to goats because of the major damage that they can inflict on plants.

Strengths

• This measure helps reduce the risk of goat reinvasion to large tracts of ecologically important land managed by the Department of Conservation. This reduces damage to ecological and water and soil conservation values in the Department of Conservation lands. It also saves on public expenditure for goat control in these areas.
• It forces landowners/managers to think carefully before they bring in goats as they have to notify council and erect goat-proof fencing. It is less likely that goats will be used for short-term weed control from which they may easily escape.
• Landowners will be less likely to release goats when they no longer need them as the animals are to be marked and the council knows of the farm.

Limitation

• Some landowners adjoining large tracts of land managed by the Department of Conservation may wish to use goats for ‘weed control’ at the ‘back’ of the farm. They may object to having to provide plans to council and erect goat-proof fences.

The following factor improves the likelihood of success for this approach:

• there is strong public and council support for maintaining the ecological integrity and biodiversity values of the Department of Conservation lands in question.

Example

In the New Plymouth District Plan (PDF) goat farming within 2 kilometres of the Egmont National Park is required to meet the conditions of rules Rur70 and Rur71. Rule Rur70 requires a landowner/farmer to notify council of an intention to farm goats and to provide a plan of the property and the ‘goat-proof’ fencing.

Reg16: Rules addressing natural hazard mitigation in a way that protects biodiversity values

Most district councils and all regional councils have some methods and/or rules that address natural hazards. Typically these methods and rules focus on reducing the risk from natural hazards to human property and infrastructure.

Ideally this approach should focus on hazard avoidance, as natural hazard mitigation may have significant impacts on biodiversity, particularly for the coastal environment and waterways and their margins. The hazards of particular relevance are coastal erosion, dune blowouts, flooding and river bank erosion. These hazards are predicted to increase in frequency and magnitude as the global climate changes.

Natural hazard avoidance includes: not locating human structures in areas at risk and shifting existing at-risk structures. The alternative of natural hazard mitigation can significantly damage the biodiversity values of the coastal environment and waterways and their margins. Examples of this damage include seawall impacts on a variety of coastal ecosystems and over-steepening of dunes caused by the introduced marram grass. Flood mitigation works include dams, channelisation, stop-banking and river-mouth manipulation.

Policies in the New Zealand Coastal Policy Statement 2010 state that plans should recognise that some natural features may migrate inland as a result of dynamic coastal processes and that new developments should be located and designed to avoid the need for hazard protection rules.

District plan rules and methods that focus on hazard avoidance require adequate setbacks for buildings and other structures. In addition they address building elevation in low lying sites at risk from inundation. The construction of coastal erosion defences and the removal or modification of sediment and vegetation on coastal dunes is tightly controlled.

Strengths

• Requiring adequate setbacks and elevations for new structures reduces the risk of future mitigation works and consequential adverse effects on biodiversity values. It also provides space for natural systems to migrate inland if the sea level rises and the magnitude of storm events increases.
• Severely restricting the construction of coastal erosion defences and the removal or modification of sediment and vegetation on coastal dunes can reduce the risks of adverse impacts from mitigation works.

Limitations

• Property owners can object to the identification of natural hazard risk areas and the subsequent restrictions as to what they can do with their property.
• Property owners can object to all or part of their property being identified as being at risk of natural hazards because they fear it may lower their property’s value.

The following factors improve the likelihood of success for this approach:

• there is little existing development in areas at risk from coastal erosion or inundation by coastal waters
• the community understands the risks and the consequences of different options
• those affected have to pay the full costs of mitigating natural hazards, including mitigating the adverse effects of natural hazard mitigation.

Reg17: District and regional plan rules to support water conservation orders

The purpose of water conservation orders (in Part 9 of the RMA) is to recognise and sustain the outstanding amenity or intrinsic values of waters in their natural state, or where that state has been modified, the amenity or intrinsic values of those waters that are outstanding.

Under s200 of the RMA, a water conservation order prohibits or restricts the exercise of a regional council’s powers under s30(1)(e) and (f) of the RMA.

Regional councils may choose to include rules that reinforce or extend the intent of parts of a water conservation order.

A district council may use its district plan to regulate riparian and catchment activities that could adversely affect the values of the water body protected by a water conservation order.

An example of a regional council’s response is Horizons MW Proposed One Plan chapter 16. This plan prohibits damming in specified protected waters and treats a variety of other activities as non-complying activities.

Reg18: Designations, heritage protection orders

Heritage orders have been rarely used as a tool for biodiversity protection. They have been only sparingly used for built heritage protection (eg, by the New Zealand Historic Places Trust) due to the risks relating to costs.

Under the former Town and Country Planning Act 1977 designations were commonly used to identify areas that the Crown wished to acquire for ecological purposes. This included areas identified in the coastal and lakeshore reserves surveys under s4 of the Reserves Act 1977 and areas identified under the Wildlife Act 1953. Designations are rarely used for ecological purposes today.

Strength

• Heritage protection orders and designations are legal tools with a formal contestable process.

Limitations

• The formal processes can be expensive and may generate ill-will with the affected landowner. The processes may include protracted decision making and uncertainty about the outcomes.
• A heritage protection authority may be required to reimburse the owner for any additional costs of upkeep of the place or structure resulting from the order being made (s191(3)(a) RMA).
• The Environment Court may order a heritage protection agency to either acquire the property or remove the order (s198 RMA).

Further information on heritage orders can be found at: http://www.mfe.govt.nz/rma/about-rma/roles-and-responsibilities/heritage-protection-authorities

Reg19: Water conservation orders

A water conservation order can be used to preserve a natural state or to protect characteristics, such as:

• the water body’s value as a habitat or fishery
• its wild and scenic nature
• its value for recreational, historic, spiritual, cultural or scenic purposes.

Water conservation orders can be used to protect outstanding amenity or intrinsic values that water provides, in either a natural or modified state. Orders may be applied over rivers, lakes, streams, ponds, wetlands or aquifers, and can cover freshwater or geothermal water.

Strengths

• A formal process is followed to establish and change a water conservation order.
• The order is high profile and relatively secure given the process required to change it.
• This is a national tool and binds local decision making.

Limitations

• The process is expensive and lengthy.
• Few rivers or sections of rivers have secured this status, especially since the RMA was enacted.
• The water conservation order status applies only to the bed and the water. Additional tools are needed to protect the riparian margins and address catchment land uses.

The following factors improve the likelihood of success for this approach:

• widespread public support, good financial base
• either many water conservation order criteria in the legislation apply to the nominated water body or it is an exceptional example of only one or several criteria.

There are currently 15 conservation orders (including one amendment order) covering water bodies that have outstanding amenity or intrinsic values.

Reg20: Plan standards for biodiversity protection and enhancement

Some matters relating to biodiversity management are frequently addressed in resource consents, including subdivisions. It can be helpful to use standard conditions that can be varied if necessary rather than having to develop similar provisions each time. However, standard conditions should be used carefully as they may not relate well to the particular requirements of development. Examples of such topics where standard conditions may be useful include: the nature of stock-proof fencing, vegetation protection, standards for native revegetation activities and monitoring, wetland protection management.

Any vegetation on a site proposed for subdivision could potentially be required to be protected by a consent notice, if the plan is set out in a way that entitles the council to manage and protect vegetation accordingly. This approach enables case by case protection of vegetation without having to go through a plan change process to schedule vegetation (including a group of notable trees).

For this method to be effective the plan needs rules that specify the circumstances for which the standards would apply. If a plan is not already set up in a way that entitles the council to manage and protect vegetation, a plan change process will be required to amend the subdivision provisions accordingly.

Strengths

• Standards typically go through a review process so should be more robust than one-off iterations.
• Standards are easier for councils to administer and monitor than many one-off sets of conditions.
• Standards in plans can be evaluated by potential applicants at the outset so they can design their project to address and implement the standards rather than retro-fitting standards after the initial design.
• Standards may deter potential applicants from submitting dubious applications.

Limitation

• The district plan review processes may lead to changes that may significantly affect the utility of the standards.

The following factors improve the likelihood of success for this approach:

• the standards should be well-reviewed by appropriate experts to ensure that they are practicable and likely to achieve the intended outcome
• there are many potential and actual applications for which the standards would be relevant.

Reg21: Requiring covenants as conditions for resource consents

Resource consent conditions are a mechanism through which vegetation or individual trees can be protected. Conditions of consent can, for example, prevent the removal or damage of vegetation during the building construction process, restrict the pruning of one or more trees to a particular area or require a qualified tree surgeon to undertake corrective pruning. Councils can also require a covenant to be registered against the title of a property via a condition of resource or subdivision consent as a mechanism for protecting vegetation. The intent of imposing a covenant is to limit or restrict how a property owner or any future property owners can use the land on which notable vegetation/trees are located.

In order to impose a consent condition that protects vegetation, the plan should first be set up in a way that specifies that the council may seek to manage and protect vegetation/trees when a resource consent is required for development within the urban environment. For example objectives, policies, and rules/assessment criteria. If a plan is not set up to entitle the council to manage and protect vegetation, a plan change process will be required to amend the relevant provisions accordingly.

A number of district plans contain regulatory incentives that allow landowners to obtain additional subdivision or development privileges in return for legally protecting an area of ecological value and/or undertaking extensive revegetation using native species. The ‘security’ for this incentive is typically a covenant over the area to be protected and/or restored. Covenants can also be used to protect areas of ecological value or as security for restoration activities required as a condition of other types of resource consents. Where subdivision privileges have been popular with landowners there are now many such covenants (e.g. Rodney, Western Bay of Plenty and Franklin districts).

These ‘covenants’ are often established via a consent notice that specifies responsibilities. Some landowners choose to use alternative covenant provisions available under the Queen Elizabeth II National Trust Act 1977, Reserves Act 1977 or Conservation Act 1987.

Strengths

• The establishment of covenants to legally protect notable vegetation and areas of ecological value and/or as security for ecological restoration can result in the protection of considerable areas of vegetation and wildlife habitat that would not otherwise have been legally protected and/or restored.
• A council does not need to complete an inventory of ecological values and/or schedule of ‘significant natural areas’ or notable trees.

Limitations

• Assessments in the Waikato, Thames-Coromandel and Rodney districts have shown that there is a much lower level of compliance with covenant conditions where those covenants result from subdivision or other development privileges, rather than voluntary protection without economic benefit.
• Conditions can vary considerably between covenants and in some districts there can be many such covenants. This can create a large monitoring project for a council.
• Earlier covenants may not have been accurately recorded in council databases so care is needed to ensure that the area remains protected.
• When land ownership changes, the new owner may be unaware of the covenant and associated conditions.
• The mechanism does not target the most ecologically significant sites and/or areas where restoration is most needed so it may not protect and promote the restoration of areas of greatest value.
• Where rules allow a single area of ecological value to be divided into many titles this may adversely affect long-term ecological outcomes.

The following factors improve the likelihood of success for this approach:

• include the covenant at the top of the property file and ensure it is an encumbrance on the title
• establishing and maintaining a good council database of covenants with all covenant boundaries included in a council’s geographic information system (GIS) system
• using standard conditions for covenants where possible to assist with long-term monitoring
• ensuring that covenants are designed and established in a way that facilitates an effective ongoing monitoring and compliance programme
• designing plan rules to minimise the risk of a single natural area being split in to many titles with many landowners
• providing information and advice to landowners who have covenants to help them meet the covenant conditions
• making subsequent landowners aware of their responsibilities
• using an economic penalty for non-compliance with covenant conditions.

Examples

See RegE1, RegE2, RegE3 and RegE4.

Reg22: Esplanade reserves and strips to protect and facilitate enhancement of riparian and aquatic biodiversity

Esplanade reserves and strips provide opportunities for facilitating the protection and enhancement of riparian and aquatic biodiversity. This opportunity tends not to be fully exploited as esplanade reserves can be seen by councils as a maintenance burden. District plans can specify policies and rules for new esplanade reserves and strips. This can include fencing and other requirements.

Example

The Kapiti Coast District Plan provision on esplanade reserves and strips (PDF) specifies the requirements for different water bodies. Along coastal margins the requirements are 50 metres in the rural zone and 20 metres in other zones, with a seven wire post and wire fence or equivalent. Fencing is also required for esplanade reserves and strips by lakes of more than 8 hectares and parts of specified rivers and streams.

Reg23: Special legislation

In some situations existing legislation, and policy statements and plans prepared under that legislation, are considered insufficient. This can lead to the promotion of special legislation, often by the local Member of Parliament.

One recent example is the Waitakere Ranges Heritage Area Act 2008. This established a Waitakere Ranges Heritage Area, which includes public (Waitakere Ranges Regional Park) and private land where more than 21,000 people live. The Act was enacted to better protect the Waitakere Ranges and its foothills and coasts, especially with respect to managing the cumulative and precedent effects of development on landscapes, the desired future character and amenity of the area, the ecological and biological environment and to maintain the rural character of the foothills. This legislation was considered necessary because the existing legislative provisions (especially the RMA) and the associated planning documents and processes did not seem to be delivering the outcomes sought by the community.

Regulatory economic instruments

RegE1: On-site subdivision privileges for biodiversity protection (protection lots)

This method (alongside RegE2, RegE3 and RegE4) provides additional subdivision privileges in exchange for a landowner legally protecting an area of ecological value or undertaking a minimum area of revegetation using native species.

A district plan can provide extra subdivision privileges (extra lots) to landowners who legally protect ecologically valuable areas. The number of extra lots usually depends on the size of the area being protected. The number of lots per unit area varies between council and may vary between habitat types (eg, forest versus wetland).

Typically the form of legal protection has been via a consent notice rather than a covenant under the Queen Elizabeth II National Trust Act 1977, Reserves Act 1977 or Conservation Act 1987.

To qualify for a subdivision privilege the area to be protected needs to be of sufficient ecological quality. Councils may address this through the use of general criteria and a requirement for a report from an approved ecologist. In some cases more detailed guidance is given (eg, Rodney District, see example below).

Strengths

• This is a low-cost option for a council and the community.
• Subdivision privileges can result in legal protection of many areas that would not have otherwise been legally protected.

Limitations

• The mechanism for protection has typically been a consent notice rather than an encumbrance on the title.
• Assessments in the Waikato, Thames-Coromandel and Rodney districts have shown that there is a much lower level of compliance with covenant conditions where covenants have been established via a consent notice (as a condition of subdivision or other development privileges), compared with covenants established voluntarily without economic benefit.
• This mechanism is not particularly effective in districts where there is little subdivision pressure over and above what can be done within the standard rules in the plan.
• There may be little demand for additional lots where the areas of ecological value are located.

The following factors improve the likelihood of success for this approach:

• there is a good database showing the location, boundaries and conditions of consent notices
• consent notices are standardised as much as possible
• initial biodiversity protection works (eg, fencing) are completed by the subdividing owner before titles are issued and the property is on-sold
• where appropriate, subdivisions can be required by a consent condition to set up a body corporate of landowners sharing an interest in covenanted land that has arisen from the development. This seeds a coordinated group of people responsible for the ongoing management of the covenant. It also reduces the ownership division of the land (and hence monitoring and administration requirements)
• landowners are informed about their obligations under covenants and involved in the ongoing compliance monitoring
• there are many small to medium unprotected areas of indigenous vegetation and wildlife habitat
• mechanisms put in place to reduce the risks of more intense subdivision on vulnerable wildlife. This may include restrictions on pet cat and dog ownership.

Transferable development rights as discussed in RegE4 (below), could potentially address some of the on-site problems (eg, increased threat to wildlife from pet cats and dogs) that can occur when the extra lots include or adjoin the areas of ecological value.

Examples

Rule 752 applying to the rural and conservation zones in the Thames-Coromandel District Plan provides opportunities for one extra lot in return for protecting more than 5 hectares of continuous native forest or other feature of value. Two extra lots are possible if more than 20 hectares is to be protected or there is a discrete feature for each lot. This rule also provides for an extra lot for retiring 5 hectares, planting it in native species and managing it according to a management plan.

RegE2: On-site subdivision privileges for scheduled significant natural areas

This is a variation of the previous instrument. It targets the subdivision privilege so that it is only available to properties that have a scheduled site of ecological value that is subject to rules restricting certain damaging activities.

Strengths

• This targets the subdivision privilege to sites of highest priority.
• The targeting of the privilege to scheduled sites subject to restrictive rules can help offset what can be perceived by some landowners as the downside of being included in the schedule.

Limitation

• The provision is not available to other sites of ecological value that were not recognised at the time of plan preparation (although presumably this could be addressed by means of a plan change that adds new sites to the schedule).

Factors improving success

• This provision is most suitable for districts where limited natural areas of value remain and these areas have been clearly identified in a comprehensive schedule.
• Including a simple mechanism to add newly discovered sites of ecological value in the schedule.

This method could be combined with Method RegE3 (below) to encourage restoration, particularly for degraded rare or threatened vegetation communities such as wetlands.

RegE3: On-site subdivision privileges for biodiversity restoration

This is a relatively recent variation on the on-site subdivision development privilege in return for protecting an area of biodiversity value. In this instance, an area is to be subject to biodiversity restoration works (eg, planted in native species) in return for extra lots, with the number of lots depending on the area involved in restoration. This option has been developed based on Environment Court decisions about how much planting of native species provides sufficient mitigation for the effects of a new lot in the coastal environment.

Strength

• This potentially provides opportunities for large scale revegetation using ecologically appropriate species in areas where farming is not profitable and/or is degrading the environment.

Limitations

• The mitigation benefits of large scale planting take some time to eventuate and can be uncertain on difficult sites.
• There is a risk that the adverse effects of development occur a long time before the positive effects of revegetation.
• Weeds can become a major problem in difficult to access sites especially in the early stages.
• Once the lots have been on-sold the new landowners may have little interest in managing the planted areas to maximise long-term biodiversity benefits.

The following factors improve the likelihood of success for this approach:

• conditions that clearly specify what is required in terms of planting density, initial and ongoing site management, species to use in different situations, planting regime, monitoring, timing for issuing certificate of completion and bonds
• sources of large quantities of eco-sourced native species
• people with the expertise to manage such projects, particularly in steep and difficult to access sites
• planting before development would provide some mitigation before the adverse effects of development occur
• the use of bonds held until the revegetation reaches a suitable standard (eg, 80 per cent closed canopy for forest species)
• delaying issue of s224 certification until the planting proves to be sustainable. This avoids the need for monitoring compliance
• subsequent development on the new lot is regulated to minimise adverse effects, especially while the plants have not formed a closed canopy
• council maintains a good database of these sites and monitors them regularly (funded by the developer).

RegE4: Transferable off-site subdivision development privilege in return for protecting an identified area of biodiversity value

This is a variation of the on-site subdivision development privilege in return for protecting an area of biodiversity value. The key point of difference is that the bonus lot or lots do not need to be located on the same pre-subdivided title. In practice, it is likely that both on-site and transferable subdivision privileges would be used in those districts that provide for transferable subdivision privileges.

Strengths

• This is a low-cost option for a council and the community.
• Subdivision privileges can result in legal protection of many areas that would not have otherwise been legally protected.
• This method can protect significant biodiversity values located in areas where there is little demand for additional lots or where housing is discouraged due to high landscape values.
• This method can avoid slicing natural features into several ownerships, which complicates future coordinated management of the whole natural feature.
• Housing development can be concentrated into areas where it has less effect on fragmenting biodiversity values.

Limitations

• There may need to be additional rules addressing potential adverse effects in those areas where the extra lots may be desired, particularly non-ecological effects such as impact on rural amenity and roading where a number of lots are transferred to the same title.
• There would need to be a good database to prevent subdivision privileges being claimed more than once for the same protected area.
• Transferable subdivision privileges are likely to require more administration by council.
• Also refer to RegE1 to RegE3.

The following factors improve the likelihood of success for this approach:

• careful development of the framework for managing transferable development privileges
• transferable subdivision privileges would be popular in those districts where the favoured locations for extra lots (in addition to what the district plan provides) are in different locations to the unprotected areas of biodiversity value
• also refer to RegE1 to RegE3.

Examples
Far North District Plan method 12.1.6.3.1 provides for an extra lot (which may be on the parent title or elsewhere) for all or part of identified ‘outstanding landscapes’ or ‘outstanding natural features’ that are given permanent protection. The list of outstanding landscapes and outstanding natural features includes some areas of biodiversity value.

RegE5: Plan provisions enabling financial contributions for biodiversity protection purposes

This is where plans specifically provide for tagged financial contributions to be used for biodiversity protection and enhancement purposes, rather than general reserves funding.

Strength

• This can provide another useful source of funding for council biodiversity protection and enhancement activities providing that the contributions are of significant size.

Limitations

• Sometimes councils can be reluctant to expand the scope of financial contributions and to require financial contributions of sufficient size for non-traditional purposes.
• This provision is only useful where growth is occurring. There is also a need to prove the nexus between that growth and the need for the contribution.

The following factors improve the likelihood of success for this approach:

• using contributions in the local area where the development occurs to provide mitigation for direct and indirect effects of development
• using contributions in a transparent way to increase public support for the use of this type of contribution.

Example

Western Bay of Plenty District Council District Plan’s financial contribution provisions require a monetary contribution for ecological protection and enhancement purposes for each new lot or dwelling. This contribution may be decreased or waived where legally binding environmental protection or enhancement has been or is proposed to be undertaken in conjunction with the primary activity. In such cases the primary activity becomes a limited discretionary activity for the environmental measures concerned.

RegE6: Waiving application fees for identified significant natural areas

The main purposes of waiving application fees for applications relating to sites included in a schedule of significant natural areas are to:

• reduce landowner objections to being included in the schedule
• promote compliance with the district plan rules applying to the schedule.

Those activities for which application fees are waived are those that would be permitted activities had the site not been included in the schedule.

Strengths

• If fees are waived, most landowners are more likely to apply for consent. If consent is applied for there are opportunities to explore options if the area concerned is of biodiversity value.
• This can help to reduce landowner opposition to be included in a schedule of ecologically sensitive sites.

Limitation

• Some landowners may so mistrust the council that a fees waiver would have little influence in those cases.

The following factor improves the likelihood of success for this approach:

• landowners are aware of the district plan’s provisions for sites included in a schedule of significant natural areas.

RegE7: Prosecuting those who infringe rules or conditions of resource consents

Where individuals or organisations undertake environmentally damaging activities that infringe plan rules, a council can commence legal proceedings. Also, if a resource consent holder does not adhere to conditions intended to protect and/or restore indigenous biodiversity, a council can commence legal proceedings.

Strength

• Well-publicised prosecutions with high fines can be a strong deterrent to resource consent and rule infringement.

Limitations

• Effective prosecutions require a council commitment to monitor resource consents and compliance with plan rules.
• It can be difficult to acquire sufficient evidence to mount a successful prosecution.
• Sometimes fines can be too low to act as a deterrent.

The following factors improve the likelihood of success for this approach:

• education and raising awareness programmes
• thorough record keeping by council staff to minimise chances of people getting off on technicalities
• encouraging community reporting of possible infringements
• a council commitment to taking prosecutions where there have been serious infringements.