We hope this Autumn 2020 edition of our Resource Management Law newsletter finds you safe and well in your respective bubbles.
During the Alert Level 4 lockdown period, our team is operating as normal from their “home offices” in Queenstown and Christchurch. We are fortunate that the nature of our clients and projects being located around the country has set us up well to work remotely.
We are heartened to see our clients and consultants continuing to operate and adapt in these unusual times. The positivity shown by many towards the challenges of the lockdown and the recovery period that will follow is inspiring. In particular, we highlight the approach and ongoing helpful and clear communication from Cardrona-Treble Cone about the upcoming winter season. See here for an update from General Manager Bridget Legnavsky.
We wish you all the best for the remainder of the lockdown and response period. If you have any questions about the implications of COVID-19 for your current operations or planned projects, or you are thinking about new projects once the lockdown is lifted, please don’t hesitate to get in touch with one of our team members.
In this edition:
- Implications of COVID-19 for planning and consenting processes
- Navigating the COVID-19 alert levels for compliance and enforcement
- Climate change update
- Latest from the High Court on no individual loss bottom lines
- Introducing Mia Turner
- Resource management 101
Implications for COVID-19 for planning and consent processes
As we get further into the COVID-19 lockdown period we are starting to get a clearer picture of the status of consenting and planning processes around New Zealand.
In many cases, due dates for submissions and appeals have been extended or hearings adjourned. However, we are starting to see the use of technology to keep processes moving during the lockdown. This includes trial mediations and even hearings via video-conferencing platforms such as Zoom and Skype. We expect these alternative arrangements will become more common and continue even in the lower COVID-19 alert levels.
Last week we collated updates and guidance from the Environment Court, Ministry for the Environment and various local authorities into an article available at the link below.
Navigating the COVID-19 alert levels for compliance and enforcement
Many resource management related industries have not been deemed essential and are required to be closed during the Level 4 lockdown period. Many operators in these industries are bound to comply with resource consent conditions that involve ongoing monitoring and works. The Government’s recent announcements as to what businesses can restart operations in Alert Level 3 means mining, forestry and constructions sites will be able to get underway but only with strict hygiene measures in place.
The Ministry for the Environment has stated that we are in unprecedented times and consent holders are expected to comply with their consent conditions and environmental responsibilities when it is safe and possible to do so. If compliance is not possible during the lockdown and response period, consent holders have been advised to discuss their situation with the relevant local authority.
What this means in practice for site operations is not immediately clear and is likely to need to be approached on a case-by-case basis.
Climate change update
Parliament’s Environment Committee recently reported back on the Resource Management Amendment Bill. The Committee recommended by majority that the Bill be passed but with some amendments. Our review of the Committee’s report focussed specifically on the (fairly far-reaching) recommended amendments addressing the relationship between the Resource Management Act 1991 (Act) and regulation of the effects of climate change.
The use of the Act to address effects of the discharge of greenhouse gases on climate change when making planning and consenting decisions has to date been limited. If implemented, the Committee’s recommended changes could have significant impacts in the natural resources consenting sector.
Latest from the High Court on no individual loss bottom lines
The High Court in Oceana Gold (New Zealand) Ltd v Otago Regional Council [2020] NZHC 436 recently determined Oceana Gold’s appeal of the Environment Court’s decision relating to biological diversity offsetting bottom lines.
The Environment Court amended the proposed Otago Regional Policy Statement policy to require no loss of individuals of a rare or vulnerable species under the New Zealand Threat Classification System (NZTCS), without there being a corresponding definition of rare and vulnerable species in the NZTCS.
Oceana appealed the Environment Court’s version of the policy on seven grounds, one of which was successful and resulted in the policy being remitted back to the Environment Court for redrafting.
Introducing Mia Turner
We recently welcomed our newest team member, Mia Turner. Mia is based in our Queenstown office. We asked her some questions about joining the team and how life in Queenstown is going so far.
Where have you come from before Queenstown? I grew up and went to school in Auckland before moving to Dunedin where I spent the last five years studying a conjoint Law and Commerce degree at the University of Otago.
What attracted you to join Lane Neave’s Resource Management team? I felt the firm was a highly regarded national firm with strong South Island networks and the team undertook variety of projects in an engaging and interesting area. I believe that resource management is a growing and varied area in which to practise, and it provides an opportunity to be involved in outcomes that are important for New Zealand’s future.
What areas of resource management law are you interested in? From my brief exposure so far I have enjoyed learning how the process works from the consenting stage to a tangible project. I’ve enjoyed seeing local projects develop and appreciate that I will in the long term be able to observe the impacts and contribution of these projects to the community.
How are you settling into Queenstown? I am settling in really well. Everyone at Lane Neave has been very welcoming and supportive and they are always willing to help me as I learn these processes! I’m loving living in such a beautiful place with such a variety of outside of work activities on offer.
What do you enjoy outside of work? I enjoy spending time with my flatmates, friends and family. I have been involved in Surf Life Saving for many years as a lifeguard and surf boat rower and enjoy skiing and mountain biking in Queenstown’s beautiful landscapes.
Resource management 101
In this edition we consider the concept of offsetting – given its relevance to our review of the Oceana (New Zealand) Ltd v Otago Regional Council decision.
An offset provides a benefit to balance a loss. In terms of resource consenting, it provides a positive effect to balance an adverse effect. It was described by the Environment Court in Oceana as providing a ‘like-for-like’ benefit to balance a loss, compared to the new concept of “environmental compensation”, which provides a ‘like-for-unlike’ benefit to compensate for a loss.
In a biological diversity context, the Proposed National Policy Statement on Indigenous Biodiversity (PNPSIB) proposes to apply offsetting to residual effects (effects that cannot be avoided, remedied or mitigated) only, and to achieve a no net loss/preferably net gain of biodiversity.
The PNPSIB defines biological offsetting as follows:
Biodiversity offset means measurable conservation outcomes resulting from actions which are designed to compensate for more than minor residual adverse effects on biodiversity, where those affects arise from an activity after appropriate prevention and mitigation measures have been taken. The goal of biodiversity offsets is to achieve no net loss and preferably a net gain of biodiversity on the ground with respect to species composition, habitat structure and ecosystem function.
Keep a look out for our next 101 to grow your resource management knowledge!
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