Local Government Magazine
Legal

Hells bell. Will we drown?

Legal framework unfit to cope with costs of sea level rise.

So much for the debate on whether climate change is real. Now we must decide how to pay for it. I am no expert on climate change but I have little time for the sceptics and there is no doubt that the time for action is upon us. At the end of January LGNZ, as part of its Climate Change project, released its report Vulnerable: The quantum of local government infrastructure exposed to sea level rise.

The report, which is the result of a survey of 62 local authorities, attempts to measure the replacement cost of local government-owned infrastructure, focusing on roading, three waters and buildings in the event of sea level rises of an ascending magnitude from 0.5 to 3.0 metres.

It estimates a cost of $8 billion in the event of a 1.5 metre rise. This is purely a replacement cost. It does not include any of the cost of the disruption of services. It also does not include other critical infrastructure such as bridges, marine facilities, landfills, green spaces and airports.

Nor does it even begin to address the impact on the same infrastructure of other climate change events such as extreme storms, high tides, flooding and land subsidence.

It does not matter whether you believe the exact numbers. The report notes that 65 percent of New Zealanders live within five kilometres of the ocean. Even a 0.5 metre rise in sea level is going to cost us a truck-load of money.

EVEN A 0.5 METRE RISE IN SEA LEVEL IS GOING TO COST US A
TRUCK-LOAD OF MONEY.

The question is not just how the issue should be addressed – like all good reports this one has some recommended actions – but to what extent the existing legal framework is adequate for the planning, decision-making, funding and implementation that is required to provide the necessary resilient infrastructure.

This matter requires urgent consideration. The framework for the provision of infrastructure is provided by the Local Government Act 2002 (LGA), the Resource Management Act 1991 (RMA), and to some extent by the Public Works Act 1981 (PWA).

At present, there is an emphasis on local infrastructure in the purpose and as a core service of local government in the LGA, but this is about to disappear in favour of the four well-beings pursuant to the Local Government (Community Well-being) Amendment Bill 2018.

Perhaps in the light of this and other reports, the focus on the four well-beings could be shared with local infrastructure. However, the requirement for a local authority to have an infrastructure strategy identifying significant issues, and how to manage them, remains.

It might be appropriate to amend section 101B LGA to make specific provision for the need for infrastructure to address sea level rise and related climate change issues.

The question of funding for replacement infrastructure is not adequately addressed by any of the funding mechanisms available under the LGA. The burden on ratepayers or user charges would be beyond affordability and, by definition, the infrastructure at risk is not in locations where development contributions or charges are feasible.

The RMA does include the control and protection of land for the avoidance of natural hazards (including sea level rise) as a function of both territorial and regional councils. But there are no special provisions that would require or facilitate action directly in response to sea level rises or climate change, or to the protection or replacement of threatened infrastructure.

Nor is there any specific provision that would enable decision-makers to impose consent conditions requiring developers to provide climate change resilient infrastructure.

At best, the RMA can be used to halt new development in at-risk areas, although there is some scope for the provision of retreat rules under regional plans in at-risk developed areas.

If land is required for new infrastructure works, the processes under the RMA and PWA are tiresome, cumbersome and time-consuming.

In short, we are not prepared and there is a need for legislative review alongside all of the practical challenges highlighted by the report.


This article was first published in the March 2019 issue of NZ Local Government Magazine.

Related posts

Loopy Rules report: Just once over lightly?

Ruth LePla

Through the legal looking glass

Ruth LePla

Te Ture Whenua Maori Bill explained

Ruth LePla