The Resource Consent Process

Written by Pitt & Moore Admin on . Posted in Forestry, Resource Management.

Applications for resource consent are best lodged by a planner that you have engaged early in the process. The planner will iron out any issues with the Council and normally pave the way so you won’t get any surprises or repeated requests for further information before the Council can make a decision on the application.

When an application for resource consent is notified (to the general public or to only a limited number of affected parties), and there is at least one submission opposing it, the Council will allocate a hearing for the application. Less complicated applications are usually heard by councillors while the Council usually appoints independent hearing commissioners to determine the more complicated ones.

Before the hearing, the Council’s reporting planner will provide a recommendation to the panel as to whether the application should be approved or not and if approved, what conditions should be imposed. The reporting planner’s recommendation must be provided at least 15 working days before the hearing and will of course be subject to any new or further evidence that comes to light at the hearing. The applicant must provide its evidence at least 10 working days before the hearing and the submitters must provide any expert evidence at least 5 working days before the hearing.

A hearing is then held. The panel will hear first from the applicant, secondly from the submitters and lastly from the Council staff involved in the application process. This is the Council’s opportunity to say whether its recommendation has changed in light of the evidence that has come out at the hearing. Once the hearing is closed, it is usual for the applicant to be able to file further submissions dealing with any issues that arose during the course of the hearing. The panel will then, following receipt of those submissions, close the hearing. Once the hearing is closed, the panel must provide a decision within 15 working days. If a decision is not provided by that time, the applicant is entitled to a reduction in the fees otherwise payable for the application. Thankfully, this does not happen very frequently.

Once the decision is issued, (and subject to a few exceptions which are currently under review by the new government) any party to the process has the right to appeal the decision to the Environment Court. This must be done within 15 working days of the date of the decision. The Environment Court is then seized of the matter and the hearing process will generally have to repeat itself all over again. A key difference however, is that the Environment Court does have the ability to award costs against parties. Thus if an appeal really has no merit the appellant is likely to face an award of costs.

Accordingly, the resource consent process can be a long and expensive one. Good legal and planning advice at an early stage will allow you to make decisions on an informed basis knowing the risks of proceeding with a proposal. Meaningful consultation with affected parties cannot be underestimated. If agreement can be reached a hearing can be avoided. Even if you do not end up in agreement, you will identify the key barriers in obtaining the consent sought.

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For expert advice contact our Resource Management Team today.

New Standards for Plantation Forestry

Written by Pitt & Moore Admin on . Posted in Forestry, Resource Management.

If you own more than a hectare of forest planted for commercial purposes you need to comply with the new national environmental standards which came into effect on 1 May 2018.

The goal of the regulations – the National Environmental Standards for Plantation Forestry (NES-PF) – is to set minimum standards for commercial forestry operations. These apply across the board, irrespective of what area of NZ you operate in, however councils will be able to impose more stringent rules as considered appropriate in their areas of jurisdiction.

The NES-PF cover eight core plantation forestry activities in any forest larger than one hectare that has been planted for commercial purposes and harvest. Those activities are: afforestation; pruning and thinning-to-waste; earthworks; river crossings; forest quarrying; harvesting; mechanical land preparation and replanting. The effects of forestry activities occurring outside the particular forest are generally not covered and existing regional and district plan rules will continue to govern those.

Examples of what the new standards require are:

  • for afforestation to be undertaken without resource consent, various conditions are required including setbacks for tree planting from rivers, lakes, wetlands, coastal areas and significant natural areas.
  • for harvesting to be undertaken without resource consent, foresters must submit a harvest plan to their local council if requested. The plan must identify environmental risks including susceptibility to erosion and must list the mitigation proposed to respond to those risks.
  • for earthworks to be undertaken without resource consent, foresters must install and maintain stormwater and sediment control measures.

The regulations are based on what is considered to be existing good practice standards for the forestry industry. For the most part the NES-PF represent a raising of the environmental standards for forestry operations.

It is therefore important that when considering undertaking any one of the eight activities, you refer to the NES-PF and make sure what you propose complies with those standards. If what you propose does not comply, you will need resource consent for that activity to be considered lawful.
The area is ripe for confusion, particularly at the outset. However, there are three online tools that can help you determine when consent will be needed. The Wilding Tree Risk Calculator, the Erosion Susceptibility Classification and the Fish Spawning Calculator to identify disturbance to waterways while fish are spawning. These tools can be found at www.mpi.govt.nz/growing-andharvesting/forestry/national-environmental-standars-for-plantation-forestry.

The intent of the NES-PF is to provide national standards that will protect address the risks of forestry activities and protect sensitive environments. Afforestation of highly erodible land will require resource consent and predictably more strict conditions than currently to prevent environmental damage. It is difficult to assess whether the recent events in Marahau and Tolaga Bay would have had any different outcomes if the standards had applied to those operations but the NES-PF certainly intend a different outcome in the future.

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Contact our Resource Management Team today to discuss how we can assist you.

Farmers urged to be aware of increasing environmental enforcement

Written by Pitt & Moore Admin on . Posted in Resource Management.

The new Labour government has made no surprise of its commitment to both climate change and the improvement of water quality in New Zealand.

The Minister for the Environment, the Honourable David Parker has stressed the importance of economic growth within environmental limits. In a recent address he emphasised the need to shift the economy to a sustainable model. He expressed that “growth cannot continue at the expense of the environment” and identified climate change; water quality; and urban development as his top three priorities.

Given this commitment, the farming sector (along with other primary industries) can expect to be the subject of more stringent controls in the near future. Councils and interest groups are also more likely to take action against those perceived to be causing environmental harm

While we await the specific changes at a national level (new national standards, the Zero Carbon Bill amongst other measures likely to be introduced), this is a good time to remember that even if you are operating within the terms of your resource consent, you can still be the subject of enforcement action

Section 17 of the Resource Management Act 1991 creates a general duty for every person to avoid, remedy or mitigate any adverse effect on the environment arising from an activity – irrespective of whether or not that activity has been undertaken in accordance with a rule in a plan, a resource consent, a designation or existing use rights. For example, in Uruamo v Carter Holt Harvey Ltd A043/96 (PT) an interim enforcement order was made in reliance on a possible breach of the s 17 duty, even though consent had been obtained for the activity in question.

As such, if your activity is likely to be noxious, dangerous, offensive, or objectionable to such an extent that it has or is likely to have an adverse effect on the environment, you can be the subject of an enforcement order or abatement notice. That might require you to stop the activity altogether or do something that is necessary to avoid or remedy or mitigate any adverse effect on the environment. There significant financial penalties for failure to comply.

Planning documents are often playing “catch up” with the growing body of scientific evidence being gathered about the state of our environment. Section 17 therefore allows a consent authority or the Environment Court to impose environmentally protective conditions where it considers – on compelling grounds – that the consent or relevant planning document does not provide a good enough measure, and environment harm is occurring.

Enforcement action is usually the last step, but with recent findings about the adverse effects of activities on water quality, section 17 may well be used to prevent known environmental harm from otherwise lawful activities. The best form of defence against any enforcement action is to use best practice and keep good records of your activities should any question arise.

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Contact our Resource Management Team today to discuss how we can assist you.

Leases – it’s all in the Wording

Written by Pitt & Moore Admin on . Posted in Commercial Property, Development & Leasing, Litigation and Dispute Resolution, Resource Management.

The importance of clear and explicit wording in your contractual arrangements has been confirmed by the recent quashing by the Supreme Court of the Court of Appeal’s judgment against Mobil Oil – Mobil Oil New Zealand Limited v Development Auckland Limited [2016] NZSC 89.

The Court of Appeal – disagreeing with the High Court – found that Mobil had to remediate the land that it had leased from the Auckland Harbour Board (and its successors) and that the natural and ordinary meaning of the words in the lease did mean that the remediation included the sub-soils which had been contaminated over many years prior by its use as a bulk storage of oil.

The lease agreements all contained a repair clause dealing with Mobil’s obligations to keep the land “in good order and clean and tidy” during the term and to deliver it in that condition on termination. The leases permitted the storage, handling and blending of petroleum products but prohibited any noisy or offensive trade or business and required Mobil to comply with all relevant regulatory requirements.

The question for the Court was whether delivery of the land at termination meant remediation of the contamination.

Factually, the key findings were that Mobil’s predecessors had occupied the site since the 1920’s and that the parties knew the land was contaminated from the 1970’s. The relevant leases were entered into between the parties in 1985. At the time the tenancies came to an end in 2011, remediation work costing between $10-50 million (depending on who was doing the work) was required.

Development Auckland said Mobil was to foot the bill under the terms of the lease. Mobil said that the terms of the lease did not require it to foot the bill.

The High Court found in Mobil’s favour and found that having regard to the land’s contamination in the 70’s one would have expected any remediation from contamination to be explicitly addressed in the lease rather than left for inference from the general wording of the clean and tidy clauses.

The Court of Appeal disagreed. It reviewed, at some length, the law of waste, and took the view that permission to use the site for oil storage did not amount to authorisation of incidental contamination. It was of the view that there had been a breach of the covenant not to injure the lessor. The Court saw the clean and tidy obligation as naturally extending to the subsurface and it saw Mobil as coming to the negotiating table in 1985 with an actual or potential liability for its prior contamination. The Court traversed all the correspondence between the parties leading up to the execution of the 1985 leases in order to get to that point and the majority found that all the contamination – not just the contamination caused post-1985 should be remediated by Mobil.

Mobil appealed and were successful. Amongst other things the Supreme Court considered it important that there were multiple causes of the contamination; that contamination was an incident of the permitted use of bulk oil storage; and that there was no claim by Auckland Harbour Board for Mobil to remediate the land when it was surrendered to it in 1985; as relevant. The Supreme Court favoured the High Court’s assessment of the contractual terms and emphasised that the word “keep” in keep tidy, is future looking and not a word which is apt to signify an obligation to effect transformative change (such as extensive and expensive remediation). The Supreme Court rejected that the clean and tidy clause meant that Mobil would be liable for any contamination and also rejected the suggestion that a term be implied into the contract which would require Mobil to prevent contamination – such a term was not necessary to give business efficacy and did not “go without saying”.

In short, be very clear from the outset what each party’s obligations and rights are to be – particularly having regard to the nature of the use of the premises – and ensure they are clearly spelt out in the agreement. In this case, after years of legal flip-flops, Auckland now has to wear the costs of site remediation which would arguably take away any profit to it after all the years of leasing it plus pay costs to Mobil – the ratepayers will not be happy!

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Contact our Litigation & Dispute Resolution Team today to discuss how we can assist you.

Nelson

78 Selwyn Place
Nelson 7010
Phone: +64 3 548 8349
Fax: 03 546 9153
Email: mail@pittandmoore.co.nz

Postal address
PO Box 42, Nelson 7040
DX WC70013

Richmond

66 Oxford Street
Richmond 7020
Phone: +64 3 543 9090
Fax: 03 546 9153
Email: mail@pittandmoore.co.nz

Postal address
PO Box 42, Nelson 7040
DX WC70013

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