Legislation

New Zealand’s coastal environment is primarily managed under the Resource Management Act 1991 (RMA). This legislation establishes which statutory authorities are responsible for various aspects of coastal management, a set of principles which those authorities must apply, and a range of mandatory and optional tools which can be employed to achieve the purpose of the RMA. There are also several other Acts which are relevant to management of the coastal environment, including the Hauraki Gulf Marine Park Act 2000, Marine and Coastal Area (Takutai Moana) Act 2011, Local Government Act 2002 and Fisheries Act 1996.

Port Fitzroy (Credit: Raewyn Peart)

Resource Management Act 1991

Purpose and principles

Part 2 of the RMA sets out the purpose of the Act and principles which are to be applied to resource management. The purpose and all of the principles are relevant to management of the coastal environment. The following principles are of particular relevance:

  • Section 6(a) - The preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use and development.
  • Section 6(d) - The maintenance and enhancement of public access to and along the coastal marine area, lakes and rivers.
  • Section 7(i) - The effects of climate change.

Planning Documents

Regional policy statements, regional plans and district plans are prepared under the RMA to guide and control activities in the coastal environment.

Regional councils are required to prepare a regional policy statement and a regional coastal plan which applies to the coastal marine area (below mean high water springs). Regional councils are able to prepare regional coastal environment plans which apply to the entire coastal environment, including land above mean high water springs, and this can assist in integrating management of the coastal environment. Such plans contain objectives and policies which apply to the entire coastal environment. However their rules often only apply to the coastal marine area, leaving territorial authorities to control land use in the coastal environment through provisions in district plans.

Territorial authorities are required to prepare a district plan which applies to land above mean high water springs. District plans contain objectives and policies, as well as rules controlling activities such as land use, subdivision and noise. The rules contained in district plans are central to the management of the coast, because land development cumulatively has the greatest impact on the coastal environment. Some district plans identify special coastal zones, where greater control is exercised over development, in recognition of the sensitivity of the coastal environment.

Resource consents

Many activities require a resource consent before they can proceed. Regional and district plans largely determine whether an activity will require consent and whether that consent will be notified.  when the council is determining whether or not to grant the resource consent application it will consider:

  • The purpose and principles of the RMA
  • The provisions of the NZCPS 2010, other national policy statements, and any relevant environmental standards or other regulations
  • The relevant provisions in the applicable regional policy statement, regional plan and district plan
  • The actual and potential effects on the environment of allowing the activity
  • Any other matter that is relevant and reasonably necessary to determine the application

If the council decides to grant a consent, it may impose a range of conditions to manage environmental effects, and may ensure the performance of conditions through requiring covenants or bonds.

Non-regulatory methods

There are various non-regulatory methods which may be employed, along with appropriate regulatory provisions, to promote high quality coastal management.

Hauraki Gulf Marine Park Act 2000

The Hauraki Gulf Marine Park Act applies to the Hauraki Gulf, its islands and its catchments.

Section 7 (recognition of the national significance of the Hauraki Gulf) and section 8 (management  objectives) must be treated as a national policy statement and a NZCPS. Regional policy statements, regional plans and district plans which apply to the Hauraki Gulf and its islands and catchments must give effect to these sections. In addition, consent authorities must have regard to sections 7 and 8 when considering an application for resource consent within the Hauraki Gulf area. Where there is conflict between sections 7 and 8 of the Hauraki Gulf Marine Park Act and the NZCPS 2010, the latter prevails.

The management objectives of the Hauraki Gulf Marine Park Act seek to promote the protection and, where appropriate, enhancement of:

  • The life-supporting capacity of the environment
  • The Gulf’s natural, historic and physical resources
  • Resources of the Gulf with which tangata whenua have an historic, traditional, cultural and spiritual relationship
  • The cultural and historic associations that people and communities have with the Gulf’s resources
  • The contribution of the Gulf’s resources to the social and economic wellbeing of the people and communities of the Gulf and New Zealand
  • The resources of the Gulf which contribute to the recreation and enjoyment of the Gulf for people and communities of the Gulf and New Zealand

These objectives cover the natural, historic and physical resources of the Hauraki Gulf, its islands and catchments and therefore have much significance for the management of coastal land in addition to the marine area.

As well as setting out management objectives, the Hauraki Gulf Marine Park Act established a Hauraki Gulf Marine Park which primarily consists of reserve land, common marine and coastal area within the Hauraki Gulf (other than foreshore or seabed held for defence purposes) and seawater (but not marine life).

The Act also established the Hauraki Gulf Forum for the purpose of integrating management of, and promoting the conservation and sustainable management of, the Hauraki Gulf; facilitating communication, cooperation and coordination; and recognising the relationship of tangata whenua with the Hauraki Gulf.

Marine and Coastal Area (Takutai Moana) Act 2011

In 2003, the Court of Appeal found that Māori customary rights to the foreshore and seabed had not been extinguished and the Māori Land Court had jurisdiction to conduct investigations into the title of the foreshore and seabed. 3107

The Crown’s response was the enactment of the Foreshore and Seabed Act 2004. This reflected Government concerns that the great majority of New Zealanders understood that the foreshore and seabed was owned by the Crown on behalf of all New Zealanders. The Foreshore and Seabed Act vested ownership of the foreshore and seabed, except for those areas already in freehold title, in the Crown, while providing limited recognition of customary title through customary rights orders and territorial customary rights orders.

In its report on the Crown’s foreshore and seabed policy (known as Wai 1071), the Waitangi Tribunal found that the policy underpinning the Foreshore and Seabed Act was in breach of the Treaty of Waitangi and failed in terms of wider norms of domestic and international law including the rule of law and the principles of fairness and non-discrimination against a particular group of people. Criticism was also voiced by the United Nations Commission on Human Rights which recommended that the Foreshore and Seabed Act be repealed. 3108

In response to the ongoing debate, a review was conducted, which led to the enactment of the Marine and Coastal Area (Takutai Moana) Act 2011. This established a new regime for the recognition of customary rights and title over the common marine and coastal area.

The new legislation defines a “common marine and coastal area” which includes the marine and coastal area, excluding existing freehold title and areas owned by the Crown as conservation areas, national parks or reserves. It states that the common marine and coastal area has a “special status” and that neither the Crown nor any other person owns, or is capable of owning it. 3109  Every person has the right to enter, pass over, and engage in recreational activities in the common marine and coastal area. 3110

Under the Marine and Coastal Area (Takutai Moana) Act the phrase “marine and coastal area”:

(a) means the area that is bounded,—
      (i) on the landward side, by the line of mean high-water springs; and
      (ii) on the seaward side, by the outer limits of the territorial sea; and
(b) includes the beds of rivers that are part of the coastal marine area (within the meaning of the Resource Management Act 1991); and
(c) includes the airspace above, and the water space (but not the water) above, the areas described in paragraphs (a) and (b); and
(d) includes the subsoil, bedrock, and other matter under the areas described in paragraphs (a) and (b)

Any claims to the common marine and coastal area, made before the commencement of the Act, are to be transferred to the High Court whose jurisdiction to consider such claims is codified in the legislation. The Act also provides for recognition of customary rights through:

  • Protected customary rights – a right that has been exercised since 1840 and continues to be exercised in accordance with tīkanga by the applicant group and is not extinguished as a matter of law 3111
  • Customary marine title – where the applicant group holds the specific area in accordance with tīkanga, and has exclusively used and occupied it from 1840 to the present day without substantial interruption, or received it after 1840 through a customary transfer

The implications of these rights for coastal management include:

  • The holders of customary marine title have greater rights of participation in plan-making and the protection of protected customary rights is a matter of national importance that must be recognised and provided for in plan-making
  • There are additional rights associated with notification. Local authorities are required to assess whether protected customary rights groups or customary marine title groups will be affected by a resource consent application, and give limited notification to groups where they are affected
  • There are financial implications as no coastal occupation charge may be imposed on a protected customary rights group or customary marine title group
  • The local authority is required to monitor the exercise of protected customary rights in its region
  • There are limitations on other activities occurring in protected customary rights or customary marine title areas

The coastal environment is primarily managed through developing planning documents, considering applications for resource consents and applying a range of non-statutory mechanisms.

New Zealand Coastal Policy Statement

The RMA requires the Minister of Conservation to prepare a NZCPS to “state policies in order to achieve the purpose of this Act in relation to the coastal environment of New Zealand”. 3112  Essentially this means that the purpose of the NZCPS is to achieve sustainable management of the natural and physical resources of New Zealand’s coastal environment. This is accomplished through the requirement that local authorities must give effect to the NZCPS in planning documents. They must also have regard to the NZCPS when considering consent applications. In this way, the NZCPS was intended to integrate all RMA decision-making affecting the coastal environment. The NZCPS is the only mandatory national policy statement required under the RMA. The first NZCPS was issued in 1994. A new NZCPS took effect on 3 December 2010.

The New Zealand Coastal Policy Statement 2010

The  NZCPS 1994 contained a provision requiring the effectiveness of the NZCPS to be reviewed by someone independent of the Minister no later than nine years after its gazettal. The Minister of Conservation was then to consider the “desirability of reviewing, changing or revoking the Statement”. 3113

An independent review of the NZCPS began in 2003, almost 10 years after the document came into force. The review made a series of findings on the effectiveness of the NZCPS including: 3114

  • NZCPS policies had been implemented effectively through regional policy statements
  • The NZCPS had been effective in changing the practice of directly discharging sewage effluent into the coastal marine area
  • The NZCPS had been only partially effective in influencing district plans and subsequent land use planning decisions within the coastal environment
  • The NZCPS was only generally referred to in resource consent applications
  • There was poor monitoring of environmental outcomes on the coast

As a result of these findings, in 2008 the Minister of Conservation prepared a Proposed NZCPS, and appointed a Board of Inquiry to inquire into and report on it. 3115

During the time since the first NZCPS was prepared there had been important shifts in the planning context. Ongoing demand for subdivision, use and development had resulted in significant adverse effects on natural character, public access and other values in the coastal environment. Understanding of coastal hazards, and in particular the potential effects of climate change, had increased substantially. There was rapid expansion in the aquaculture industry with associated effects on coastal ecosystems and other users of the coastal environment. There was also substantial community concern about the degradation of coastal water quality and ecosystems, and a desire to see better management of direct and indirect discharges to the coast, including sewage discharge and other pollutants.

There were some key issues that the Board of Inquiry considered needed to be addressed in a new NZCPS, including: 3116

  • Impacts of subdivision, use and development, particularly the extent and scale of subdivision and development on the coast
  • Lack of protection of public access to the coastline and the coastal marine area
  • Degradation of coastal water quality, particularly as a result of sedimentation
  • The challenges resulting from natural hazards which will be exacerbated by sea-level rise and other changes associated with climate change
  • Lack of provision for tangata whenua values and interests in sustainable management
  • Inadequate recognition of infrastructure needs and the potential for renewable energy projects

As the independent review had noted, the NZCPS 1994 was not a particularly influential document and did not commonly feature as a key factor in coastal management decisions. Submitters to the Board of Inquiry expressed concerns “time and again” that decision-makers were disregarding the NZCPS 1994 when approving resource consent and private plan change applications. 3117  The NZCPS 2010 was intended to provide clearer direction on the management of issues that had become more pressing over the prior decade.

A new NZCPS took effect in 2010. Overall, the new NZCPS is far more directive, and requires a higher level of protection for natural coastal resources, than the previous document.

Structure of the document

The NZCPS 2010 has a preamble which is designed to assist in interpreting and applying the policy statement. This includes a short statement of the issues which are facing decision-makers, and these provide a focus for the objectives and policies which follow.

There are seven objectives which address the following matters:

  • The integrity, form, functioning and resilience of the coastal environment and its ecosystems
  • The natural character of the coastal environment, natural features and landscape values
  • The Treaty of Waitangi and kaitiakitanga
  • Public open space in, and public access to, the coastal environment
  • Coastal hazards, including the effects of climate change
  • Enabling social, economic and cultural wellbeing
  • Recognising and providing for New Zealand’s international obligations

The document contains 29 policies which address the following matters:

  • The extent and characteristics of the coastal environment
  • The Treaty of Waitangi, tangata whenua and Māori heritage
  • The precautionary approach
  • Integrated management
  • Land and waters managed under other Acts
  • Activities in the coastal environment
  • The need for strategic planning
  • Aquaculture
  • Ports
  • Reclamation and de-reclamation
  • Indigenous biological diversity
  • Harmful aquatic organisms
  • Preservation and restoration of natural character
  • Natural features and natural landscapes
  • Surf breaks of national significance
  • Identification and protection of historic heritage
  • Public open space and public access
  • Water quality
  • Sedimentation
  • Discharge of contaminants
  • Coastal hazards
  • Monitoring and review of the effectiveness of the NZCPS

The effectiveness of the NZCPS 2010 is to be monitored and reviewed as directed by Policy 28. The monitoring is to be done in collaboration with local authorities and is to provide a national  perspective on any emerging trends and issues. The review is to be undertaken within six years of the document’s gazettal, which is by 3 November 2016.

How the NZCPS 2010 differs from the NZCPS 1994

Some of the key changes that have been made in the NZCPS 2010 include:

  • A strong direction that “avoiding” adverse effects is the starting point for decision-making, particularly in relation to significant values, in order to address cumulative effects and the growing tendency of applicants and decision-makers to focus on mitigation without first considering how to avoid adverse effects
  • A focus on avoiding adverse effects on outstanding natural features and landscapes. It provides for greater protection of these than has been occurring, especially at a district level
  • A requirement to avoid adverse effects on areas of the coastal environment with “outstanding” natural character, which is a new category
  • A requirement to avoid adverse effects on threatened species which provides a new focus on species as well as habitats
  • The provision for more integrated management, including across mean high water springs and across local authority boundaries
  • A strong direction on the need for strategic planning to identify where particular activities are inappropriate and to more effectively manage cumulative effects on values that are under threat
  • A greater focus on the effects of climate change, in particular sea-level rise, not just on settlements and infrastructure but also on biodiversity, public spaces, access and amenity values
  • A recognition that a number of uses can occur within the coastal environment, including ports that service national and internal shipping and other regionally and nationally significant infrastructure
  • Stronger policies providing for Māori values, including greater recognition of iwi management plans and cultural impact assessments
  • A strong direction on the need to assess and identify in plans important natural features, natural landscapes and areas of natural character, as well as areas with degraded coastal water quality
  • A strengthening of the obligation to restore the natural character of the coastal environment
  • A strengthening of the policies relating to public walking access and new policies recognising the need for public open space and control of vehicle access
  • Stronger policies relating to enhancement of water quality, sedimentation and discharge of contaminants, including not allowing untreated discharge of human sewage
  • Stronger policies on coastal hazards, requiring a strategic approach that identifies areas at high risk of being affected by coastal hazards during at least the next 100 years. It requires new development or redevelopment that increases the risk of harm from coastal hazards to be avoided, and discourages the use of hard protection structures
  • A move away from restricted coastal activities
  • A requirement to monitor and report on the effectiveness of the NZCPS 2010 within six years of its introduction (it has previously been set at 10 years)
  • Inclusion of a number of policies on new topics, including:
    • Surf breaks of national importance
    • Historic heritage
    • Harmful aquatic organisms
    • Ports
    • Aquaculture
    • Public open space
    • Vehicle access to the coastline
    • Sedimentation

The Department of Conservation is preparing overview guidance to provide further information on how the NZCPS 2010 can be effectively implemented. 3118

The extent of the coastal environment is not fully defined in the RMA, and as a result there is a lack of clarity as to precisely where the provisions of the NZCPS 2010 apply. The coastal environment clearly includes the coastal marine area, as defined in the RMA, which extends to the outer limits of the territorial sea (12 nautical miles from land). But the landward extent of the coastal environment is left undefined in the RMA and is to be determined at a regional or district level by local authorities based on a number of considerations.

The Environment Court has defined the “coastal environment” as the area in which the coast is a significant part or element. 3119  The Court held that this “will vary from place to place and according to the position from which a place is viewed. Where there are hills behind the coast, it will generally extend up to the dominant ridge behind the coast”. 3120  The demarcation of this area, using maps, is an important task if local authorities are to give effect to the NZCPS 2010. However, the Environment Court has observed that the “coastal environment” is an environment, not a zone. This means “there will frequently be grey areas and blurred edges”. 3121

Policy 1 of the NZCPS 2010 states that the extent and characteristics of the coastal environment vary from region to region and locality to locality and lists a number of key features that the coastal environment includes:

  • the coastal marine area;
  • islands within the coastal marine area;
  • areas where coastal processes, influences or qualities are significant, including coastal lakes, lagoons, tidal estuaries, saltmarshes, coastal wetlands, and the margins of these;
  • areas at risk from coastal hazards;
  • coastal vegetation and the habitat of indigenous coastal species including migratory birds;
  • elements and features that contribute to the natural character, landscape, visual qualities or amenity values;
  • items of cultural and historic heritage in the coastal marine area or on the coast;
  • inter-related coastal marine and terrestrial systems, including the intertidal zone; and
  • physical resources and built facilities, including infrastructure, that have modified the coastal environment.

 This means that the coastal environment itself can be defined with reference to living organisms, including how indigenous coastal species move and where coastal vegetation grows.

Whilst the scope of the definition of the coastal environment under the RMA will not normally include entire water catchments, which may extend many kilometres inland, activities within such catchments are especially relevant when dealing with coastal water and habitat quality issues. This is because waterways within the catchments ultimately discharge into the sea and may contain high levels of damaging sediment and pollutants. Because of this close physical linkage, the implementation of the NZCPS 2010 is likely to have implications for wider catchment management.

A precautionary approach

Policy 3 of the NZCPS 2010 requires that a precautionary approach be taken when effects from proposed activities are uncertain, but could be significantly adverse. There is a particular focus on taking such an approach when dealing with resources that are vulnerable to climate change. This is a key approach that is recognised as part of the Rio Declaration on Environment and Development 1992.

The Department of Conservation, through its Guidance Note on Policy 3, has suggested that the application of the precautionary approach requires a risk management rather than risk assessment approach. It is when the risk of potential significant adverse or irreversible environmental effects cannot be adequately assessed (because of uncertainty about the nature and consequences of human activities or other processes) that a precautionary approach becomes appropriate. 3122

The implementation of Policy 3 requires a prudent avoidance approach to be taken where the individual or cumulative effects of an activity are uncertain. Adaptive management is one approach which can be applied in some cases of uncertainty but not all. It will not be appropriate, for example, where there is risk of irreversible change, or resources of very high value might be threatened. The New Zealand Biodiversity Strategy 2000 defines adaptive management to include “structured learning by doing”. 3123  The Biodiversity Strategy notes that adaptive management is most useful when large complex ecological systems are being managed and management decisions cannot wait for final research results.

Avoiding adverse effects

The NZCPS directs the avoidance of adverse effects in a number of policies. For example, Policy 13 requires the avoidance of adverse effects in order to preserve the natural character of the coastal environment and to protect it from inappropriate subdivision, use, and development.

The NZCPS 2010 does not contain any definition or direction as to the meaning of “avoid” adverse effects. However, the Supreme Court has stated that “avoid” means “not allow” or “prevent the occurrence of”. It is clearly distinct from “remedy or “mitigate”. 3124

The RMA defines “effect” as including “any … positive or adverse effect … regardless of the scale, intensity, duration, or frequency of the effect”.

However, in the context of policies 13 and 15 of the NZCPS, the Supreme Court has stated that the direction to “avoid adverse effect” must be assessed against the opening words of each policy. The opening words of Policy 13 are: “To preserve the natural character of the coastal environment and to protect it from inappropriate subdivision, use and development”. 

The Supreme Court concluded that it “is improbable that it would be necessary to prohibit an activity that has a minor or transitory adverse effect in order to preserve the natural character of the coastal environment, even where that natural character is outstanding. Moreover, some uses or developments may enhance the natural character of an area.” 3125

There is no blanket requirement to avoid adverse effects under the NZCPS 2010. This requirement only arises in relation to certain policies and in many cases (such as policy 13(1)(b) above) there is a distinction between “avoiding” significant adverse effects and “avoiding, remedying or mitigating” other effects.

The NZCPS 2010 does not contain any definition or direction as to the meaning of “significant” adverse effects. Its normal meaning is therefore to be used. Whether or not adverse effects are “significant” requires a judgment call to be made that will depend on the factual circumstances. The decision-maker will hear evidence on the adverse effects of the activity and then make a finding as to whether or not they are significant. A useful example of where this occurred is in the 2007 Environment Court case of Save the Point Inc v Wellington City Council.The Department of Conservation’s Guidance Notes 3126  list matters that are relevant to the determination of whether or not adverse effects are “significant”.

Integrated management

The Board of Inquiry recognised that there were many benefits to be gained through the improved integration and co-ordination of responsibilities under all relevant legislation within the framework of the NZCPS and RMA. In addition, there was a need to integrate planning and policy development across the mean high water springs line. This resulted in Policy 4 which outlines the ways this can be achieved. It also identifies certain situations where such integration is particularly important including:

  • Subdivision, use or development which crosses mean high water springs
  • Public use of the coast
  • Where risks from coastal hazards are potentially high
  • Where water quality may be impacted
  • Where cumulative effects are occurring or anticipated

Policy 5 addresses the effects of activities on lands or waters managed or held under other Acts, and is also relevant to integrated management. Protected areas within the coastal environment, such as marine reserves and land-based scenic reserves, can contribute significantly to biodiversity, natural character, public open space and amenity values of a region or district. These areas are frequently important to the achievement of sustainable management and are often vulnerable to the effects of activities proposed in surrounding lands and waters. Voluntary measures can also assist with achieving better integration.

Activities in the coastal environment

There is a growing recognition that activities can have a significant impact on the coastal environment. Inland activities influence water quality and coastal based activities can increase the risks from natural hazards. There is also increasing demand for, and conflict over, space for marine-based activities. The NZCPS 2010 provides reasonably clear direction on the appropriate location and scale of activities in the coastal environment. This level of direction is a step change from its predecessor.

Through a number of the objectives, there is an impetus to ensure that activities do not compromise the protection of important natural coastal resources. As already indicated, Policy 3(a) requires a precautionary approach to be taken when considering the effects of activities on the coastal environment. Policy 6 specifically focuses on coastal activities and addresses their impacts.

In addition, policies 8 and 9 respectively recognise the contribution that aquaculture and ports make to the local economy and community well-being. These policies attempt to strike an effective balance between providing for activities in the coastal environment and ensuring that important natural resources and community and cultural values are protected in doing so.

The Department of Conservation has prepared a guidance note which provides detailed assistance to decision-makers on implementing Policy 6. Through this policy the Department encourages local authorities to identify what activities have a functional need to be in the coastal marine area, and to provide for those activities in appropriate places. There is a direction in Policy 6 for decision-makers to consider “reasonably foreseeable needs” when determining the rate at which built development and associated public infrastructure should be provided for. Such future needs are also to be considered when making provision for renewable wind and marine energy generation.

In addition, the Department of Conservation has prepared a guidance note on implementing Policies 8 and 9 which is a valuable resource for any local authority incorporating provisions for aquaculture and port facilities into its planning documents. This topic is discussed in further detail in the marine section of this website.

The impacts of particular activities are discussed elsewhere on this website.

Strategic planning

The NZCPS 2010 strengthens the need for strategic planning, which is encompassed in many of the policies, but particularly in Policy 7. This policy also supports the integrative and collaborative approaches promoted by Policy 4. Implementation of Policy 7 will also depend on the technical and other information gathered to implement other policies including indigenous biodiversity (Policy 11), natural character (Policy 13), natural features and natural landscapes (Policy 15) and coastal water quality (Policy 21).  

The addition of this policy stemmed from concern that the lack of strategic and spatial planning to date has resulted in poor management of cumulative effects within the coastal environment. Policy 7 provides clear direction on how regional and district councils should apply strategic planning to the coastal environment.

This includes identifying coastal processes, resources or values that are under threat from cumulative effects as well as identifying areas of the coastal environment where activities are inappropriate. As a result, it is expected that thresholds for managing important natural values will be identified in statutory plans.

The Department of Conservation has prepared a guidance note on implementing Policy 7 which discusses how the assessment of known coastal uses and values is required to inform strategic planning and decisions about the appropriateness of activities. It indicates that these areas can include strategically important assets, such as major ports or navigation routes, through to ecologically The guidance note also highlights the importance of recognising that ecologically important areas may be valuable because of the environmental goods and services they produce (e.g. estuaries can support important fish spawning habitats). 3127

The amount of work required to give effect to the NZCPS 2010 will reflect the issues occurring in each region and district, and the amount of planning already done. As a general principle, strategic planning will be effective if it “protects the environmental goods and services that are important to community economic and social well-being”. 3128

Strategic planning is an approach which can help districts and regions to work constructively together to share knowledge and to engage with their communities on the vision for their coastal environment over longer time scales.

What the NZCPS 2010 means for planning documents

All regional policy statements, regional plans and district plans must give effect to the NZCPS 2010. 3130  “Give effect to” means “implement”. It is a firm obligation on the part of those subject to it. 3131

The Supreme Court recently considered a Board of Inquiry decision which determined that a plan change would not give effect to Policies 13 and 15 of the NZCPS but nevertheless allowed the plan change on the basis that “a judgment has to made as to whether the instrument as a whole is generally given effect to” 3132  and “the directions in [the NZCPS] are subservient to the Section 5 purpose of sustainable management”. 3133

The Supreme Court determined that the Board of Inquiry had erred in applying an “overall judgment” approach when deciding whether the plan change gave effect to the NZCPS. 3134  The Board had erred when it took the view that “the NZCPS is essentially a listing of potentially relevant considerations, which will have varying weight in different fact situations” 3135 . It should have applied the bottom lines set by the directive wording in Policies 13 and 15. The result of this decision is that planning documents must implement the plain meaning of the NZCPS policies. Where policies are specific and unqualified they create absolute limits.

Local authorities must make amendments to planning documents to achieve this “as soon as practicable” using the process for changes to policy statements and plans set out in Schedule 1 of the RMA. 3136  There is little case law on what “as soon as practicable” means in the context of the RMA. However, the courts have noted in this and similar contexts that practicability is a question of fact and degree. The Department of Conservation notes that “in a practical sense this means that council documents need to be amended at the first reasonable opportunity”. 3137  This may depend on the local authority’s resources and the extent of work required, which is expected to vary between local authorities. However, councils must act to give effect to the NZCPS 2010 in their planning documents promptly and cannot leave the matter because taking action would be inconvenient or take resources away from other council activities.

The Department of Conservation has prepared a NZPCS 2010 Implementation guidance introductory note which discusses this matter. It confirms that what is practicable or reasonable will depend on the particular facts of a situation. Development of amendments to give effect to some policies is likely to require significant work and time, whereas amendments requiring less work could be made more quickly. 3138  However, the note outlines that whether it is “practicable” to make amendments all at the same time or gradually is a matter for the individual local authority, but there is an expectation that this process will be advanced as quickly as possible.

A number of local authorities have started to give effect to the NZCPS 2010 by beginning the plan change process, including the preparation of a gap analysis of regional policy statements and regional and district plans against the provisions of the NZCPS 2010, and making changes through reviews of these documents.

What the NZCPS 2010 means for resource consent decisions

Consent authorities must “have regard to” the NZCPS 2010 when considering an application for resource consent within the coastal environment, even if the relevant plans have not yet been amended to give effect to the document. 3139

The Environment Court recently considered what effect the Supreme Court decision discussed above has on resource consent decisions. The Court had before it an application to convert a mussel farm to a salmon farm in an Outstanding Natural Landscape in the Marlborough Sounds. 3140  The Court held that, because of the words “subject to Part 2” and “have regard to” in section 104, the overall broad judgment approach is still applicable in the resource consent context “provided it is recognised that the weight to be given to the relevant considerations must be carefully allocated by reference to both the strong directions in sections 6 to 8 and to any particularisation of those in the statutory instruments from national policy statements down to district plans”. 3141  In that case, the Court found that section 6(b) and Policy 15 of the NZCPS were a “sticking point” and the consent was refused. 3142  Consideration of requirements for designations, heritage orders and applications for water conservation orders are likely to be similarly affected.

Quality coastal decision-making relies on strong linkages between technical understanding underpinned by robust science, high quality stakeholder input and a solid appreciation of the policy framework. The NZCPS 2010 policies flag the areas where technical information is particularly needed to address long term strategic issues affecting the coast.

Example: Bay of Plenty Regional Council gap analysis for Regional Coastal Environment Plan

This assessment highlighted the fundamental importance of identifying and mapping the landward extent of the coastal environment. Additional identification and mapping of specific management areas was also required, including areas of outstanding and high natural character and indigenous biological diversity preservation and protection areas. The assessment identified that new or amended policy would be required to protect the values in those areas. In addition, the gap analysis found that a range of amendments to the plan would be required to recognise and enable appropriate use and development particularly that associated with energy generation and transmission, aquaculture, ports, walking access and vehicle access. 3143  Less amendment was required to some of the existing provisions that control use and development of coastal areas.

  1. Attorney-General v Ngati Apa [2003] 3 NZLR

  2. http://www.walkingaccess.govt.nz/assets/Uploads/ProtectingPublicAccessChapter.pdf, Page 12

  3. section 11

  4. section 26

  5. Section 51

  6. Section 56

  7. NZCPS 1994, Policy 7.1.1

  8. Rosier J, 2004, An independent review of the New Zealand Coastal Policy Statement - report to the Minister of Conservation, Massey University, Palmerston North, at 10-11

  9. Board of Inquiry, 2009, Proposed New Zealand Coastal Policy Statement (2008), Board of Inquiry report and recommendations, Volume 1: Findings, recommendations and recommended NZCPS (2009), Wellington

  10. Board of Inquiry, 2009, Proposed New Zealand Coastal Policy Statement (2008), Board of Inquiry report and recommendations, Volume 1: Findings, recommendations and recommended NZCPS (2009), Wellington, at 4

  11. Board of Inquiry, 2009, Proposed New Zealand Coastal Policy Statement (2008), Board of Inquiry report and recommendations, Volume 1: Findings, recommendations and recommended NZCPS (2009), Wellington, at 7

  12. Northland Regional Planning Authority v Whangarei County (1977) A4828 (TCPAB). The definition has been applied in Wilkinson v Hurunui District Council EnvC C050/00. See also Dunedin v Whangarei District Council EnvC A022/07

  13. Northland Regional Planning Authority v Whangarei County (1977) A4828 (TCPAB)

  14. Kaupokonui Beach Soc Inc v South Taranaki District Council EnvC W030/08

  15. Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2014] NZSC 41, at [96]. This case can be accessed at: https://www.courtsofnz.govt.nz/from/decisions/judgments-supreme/judgments-supreme-2014

  16. Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2014] NZSC 41, at [145]

  17. http://www.doc.govt.nz/Documents/conservation/marine-and-coastal/coastal-management/guidance/policy-7.pdf 

  18. Sections 62, 67 and 75 Resource Management Act 1991

  19. Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZKS 38, at [77]

  20. Final Report and Decision of the Board of Inquiry New Zealand King Salmon Requests for Plan Changes and Applications for Resource Consents, 22 February 2013,at [1180]

  21. Final Report and Decision of the Board of Inquiry New Zealand King Salmon Requests for Plan Changes and Applications for Resource Consents, 22 February 2013, at [1183]

  22. Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZKS 38, at [84]

  23. Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZKS 38, at [83]

  24. Section 55

  25. Section 104(1)(b)

  26. KPF Investments Limited v Marlborough District Council [2014] NZEnvC 152. This decision can be accessed online: http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZEnvC/2014/152.html?query=KPF%20Investments%20Limited

  27. Ibid, at [202]

  28. Ibid, at [215] to [217]

  29. http://www.boprc.govt.nz/media/213263/gap_analysis_of_regional_coastal_environmental_plan_against_nzcps_2010.pdf

Last updated at 2:12PM on February 25, 2015