05/09/2024
We are a little late to the party as we have been a bit snowed with hearings, plan change evidence and Environment Court mediation, but we would like to unpick a recent announcement by Minister Bishop around natural hazards and the implications. The key points we would like to address are:
1 - natural hazards becoming a consideration for all land use consents; and
2 - natural hazard rules having immediate legal effect at the time of plan notification.
With the first point, it appears that land use consents will either be pulled into Section 106 of the Act or a new section will be developed that is similar in wording. This was first considered in the RMA changes following the Christchurch Earthquakes. On first glance, it closes a small hole in the RMA where subdivisions are required to consider natural hazards, but not land use consents. This existing situation created some perverse outcomes, where residential units may be built first to get around a natural hazard issue (especially if the District Plan did not consider the hazard), and then followed up with a subdivision. However, we suspect there will be more debate (and at some point case law), around restricted discretionary activities, where the matters of discretion do not consider natural hazard risks, and the interplay with the new RMA clause. This discussion will particularly play out where hazard maps are outside of the plan, have no regulatory framework, and they are used to inform land use decisions. This debate is likely to play out in a number of Tier 1 Councils, where many residential developments are now restricted discretionary activities.
The second change around rules having immediate legal effect at the time of plan provisions notification. This will mean planners will have to be certain of the science involved in the hazard maps that are notified, and to have tested the provisions over a wide range of scenarios to make sure there are no perverse outcomes. While we believe this is a positive change overall, we do wonder if it will make some councils more gun shy to notify a hazard plan change.
What we would like to see support these changes, is further education of planners on natural hazards. There is a variable understanding in the wider planning community around the difference between hazard, risk, and susceptibility, as well as impacts of climate change on hazards, and built form resilience to natural hazards. There are some development forms being advanced (and in some cases approved) in areas where further development is not appropriate. There is a strong mantra around we must provide more housing, but we would argue at what cost? You only have to travel into a community that has been impacted by a natural hazard event to see the social, economic, and cultural impacts. These impacts can last for a life time and in these instances you have to ask, how could we have done better, why have we not done better, and why does this continue to happen?