The Government’s climate regulation implications and observations for local authorities explained by Elliot Maassen, associate and Tegan Wadworth, solicitor, in Wynn Williams’ Environment and Planning team.
Under the Climate Change Response Act 2002 (as amended by the Climate Change Response (Zero Carbon) Amendment Act 2019), the Minister for the Environment is responsible for preparing a national adaptation plan that sets out the Government’s objectives for adapting to the effects of climate change and the strategies, policies, and proposals to meet the objectives.
In August 2022, the Ministry for the Environment (MfE) released its first of these plans. It sets out ‘critical actions’ that are intended to drive significant, long-term shift in policy and institutional frameworks, across government strategies, policies and work programmes.
Several of the plan’s actions are reflected in recent local government and resource management reforms which, in themselves, have wide ranging influences for the local government sector.
Action 3.6 – Improve natural hazard information on Land Information Memoranda
On 23 November 2022, the Government introduced to Parliament the Local Government Official Information and Meetings Amendment Bill. The purpose of the Bill is to make it easier for people to obtain concise information about natural hazards in Land Information Memoranda (LIM). It proposes:
- Clearer requirements to provide natural hazard information in a LIM (including the impacts of climate change);
- a statutory responsibility for regional councils to provide natural hazard information (including about the impacts of climate change) and support territorial authorities; and
- limitation of legal liability for local authorities when disclosing natural hazard information in good faith
The amendment is intended to ensure property buyers across the country have clear, concise and understandable information about natural hazards that’s presented in a consistent manner. It also provides certainty to local authorities about sharing natural hazard information on LIMs and reducing exposure to legal liability.
When put into practice, the changes will/should allow property buyers to better understand and consider the risks of buying property in areas impacted by the effects of climate change, and arguably encourage self-adaptation, for example, voluntary managed retreat.
Action 4.1 – Reform the resource management system
The national adaptation plan recognises the opportunity to establish a framework that responds to climate challenges. Consequently, both the Natural and Built Environment Bill (NBE Bill) and Spatial Planning Bill (SPB) provide planning and decision-making tools to enable system-wide adaptation to climate change and natural hazard risks.
Spatial Planning Bill
Regional spatial strategies will enable adaptation by providing strategic direction concerning areas vulnerable to natural hazards or climate change.
While the precise meaning of ‘strategic direction’ is yet unclear, the national adaptation plan envisages regional spatial strategies that identify hazard zones, signal managed retreat and guide development to the most appropriate locations. It also identifies opportunities to increase adaptive capacity such as catchment scale measures to reduce the impact of flooding on the built environment.
Natural and Built Environment Bill – existing uses qualified
With the focus of the NBE Bill on comprehensive national guidance, we can expect to see adaptation included in the national planning framework. The national adaptation plan indicates the National Planning Framework (NPF) will set clear direction for local authorities on how to achieve climate resilience outcomes and set requirements and methods for planning for natural hazards and considering climate risks.
Existing adaptation objectives and policies in RMA national policy statements will likely also be incorporated into the NPF.
Currently existing uses present a problem for adaptation because they allow activities to continue despite a changed environment.
The NBE Bill will enable NBE Plans to set rules regarding the reduction or mitigation of, or adaptation to, natural hazards or climate change. For example, residential land uses in areas subject to natural hazards or the impacts of climate change may be required to comply with new plan rules or lose existing use rights. This is a significant step towards implementing managed retreat.
Climate Change Adaptation Act
The Climate Adaptation Act (CAA) is the third piece of the resource management reform puzzle. It is expected to be introduced by the end of 2023.
How the CAA will precisely fit with the SPB and NBE Bill is yet to be determined, but the national adaptation plan envisages that it will address the complex technical, legal and financial issues associated with managed retreat, and set out the managed retreat framework.
While more change is to come, there are steps under the current framework that can (and are) being taken to evolve in order to respond to the threats of climate change now. For example, amendments to the RMA which came into effect on 30 November 2022 direct local authorities to have regard to the national adaptation plan when preparing plans and policy statements.
Current national policy also provides direction – see Policy 25 of the NZCPS and Objective 8 of the NPS-UD.