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PUBLIC DECISION MAKING NEWSLETTER
This newsletter summarises recent developments in resource management and local government law that are of particular relevance to local authorities and decision makers.
In this edition, we address significant legislative changes in respect of earthquake-prone buildings under the Building Act 2004 and the New Zealand Fire Service, as well as the legality of district plan rules requiring ‘framework’ plans and the available considerations when recommending special housing areas.
CONTENTS
BUILDING (EARTHQUAKE-PRONE BUILDINGS) AMENDMENT ACT 2016 2
FRAMEWORK PLAN PROVISIONS UNLAWFUL IN AUCKLAND 2
HOUSING ACCORDS AND SPECIAL HOUSING AREAS 3
GETTING FIRE WISE – AN UPDATE ON THE NEW ZEALAND FIRE SERVICES REVIEW 3
RESOURCE LEGISLATION AMENDMENT BILL DELAYED 4
KEY CONTACTS 5
WINTER EDITION 2016
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BUILDING (EARTHQUAKE-PRONE BUILDINGS) AMENDMENT ACT 2016Recently passed legislation has substantially altered the way territorial authorities are to approach the regulation and assessment of earthquake-prone buildings within their districts. The Building (Earthquake-prone Buildings) Amendment Act 2016 (BAA) amends the provisions of the Building Act 2004 (BA) which apply to earthquake-prone buildings, including the definition of ‘earthquake-prone building’, and sets a new assessment and compliance regime.
The BAA was passed by Parliament on 10 May and received Royal assent on 13 May 2016. It will come into force on 13 May 2018 (unless an Order in Council is made setting an earlier date - current indications from the Ministry of Business, Innovation and Employment (MBIE) suggest a commencement date in April 2017).
The key amendments to the BA include:
• A new definition of an ‘earthquake-prone building’, which now specifically includes parts of buildings (a reflection of standard practice and MBIE determinations) and alters the ‘two limb test’. Previously, buildings needed to be found to be likely to collapse (limb one) causing injury or death or damage to property (limb two). The need to assess the likelihood of collapse is no longer a requirement. The assessment now focuses on the consequences of collapse, if it were to happen.
• Existing territorial authority earthquake-prone building policies will be revoked. This means there will be a centralised assessment process and policy framework. It is expected that MBIE will begin more formal consultation on the regulations in the next few months.
• Different assessment methods will result in different categories of earthquake-prone building notices being issued (although strengthening requirements will not vary across the different forms of notice), whereas previously there was only one type of earthquake-prone building notice.
• Farm sheds, retaining walls, fences, monuments, wharves, bridges, tunnels and storage tanks are excluded from the earthquake-prone building provisions.
• Geographic areas of seismic risk (high, medium, and low) are created, with different requirements applying depending on the identified area of risk.
• A new category of building - ‘priority buildings’ is created with more stringent requirements than other buildings. In medium or high risk areas priority buildings will need to be identified by the territorial authority and upgraded by the property owner in half the time normally allowed. Priority buildings include:
• education buildings (eg, schools, universities);
• emergency buildings (eg, hospitals);
• unreinforced masonry buildings parapets, verandahs and facades on public thoroughfares; and
• buildings identified by a territorial authority as having the potential to impede a transport route of strategic importance in terms of emergency response.
• Timeframes required for identification of earthquake-prone buildings by territorial authorities range from 2.5 to 15 years, depending on the level of risk and whether or not the building is a priority building.
• Timeframes required for strengthening by the building owner range from 7.5 years to 35 years, depending on the level of risk and whether or not the building is a priority building.
• Owners of earthquake-prone Category 1 listed heritage buildings and National Historic Landmarks have the ability to apply for an extension of up to 10 years to complete earthquake strengthening.
• There is an ability for a building owner to apply for an exemption - the scope of this exemption remains to be clarified by regulations.
• Territorial authorities are enabled to issue building consents for required seismic work on buildings that are earthquake-prone without requiring the owner to undertake other upgrades at the same time (eg, facilities for people with disabilities and for means of escape from fire), although building consent will not be able to be issued for ‘substantial alterations’ (also to be defined in regulations) to an earthquake-prone building unless the alterations include the seismic work required by an earthquake-prone building notice.
Implementing the change will require substantial work by territorial authorities.
There will, at least initially, be increased work required in terms of identifying requirements of earthquake-prone buildings, issuing of notices, reporting requirements and processing exemption applications. This will likely be more significant in higher risk areas and those where only limited assessments have already been undertaken by territorial authorities.
FRAMEWORK PLAN PROVISIONS UNLAWFUL IN AUCKLANDThe Environment Court (Court) has confirmed that district plan provisions can only require resource consent for ‘activities’.1 Rules requiring framework plans, comprehensive development plans, outline development plans (or similar), or rules that change activity status on the presence of such plans have been confirmed to be unlawful.
In a rare occurrence, the Principal Judge assigned a Full Court of Environment Judges to hear this declaration. This was due to the widespread national interest and importance of this issue. Judges Newhook, Dwyer and Borthwick, in a unanimous interim decision, declined three of the declarations sought by Auckland Council (Council) and deferred its decision on a further two declarations pending further information.
The declarations were sought on the legality of certain provisions of the Proposed Auckland Unitary Plan (PAUP) that is currently before an Independent Hearings Panel (to be confirmed by Council) for determination. The Council and several submitters on the PAUP (on each side of the argument) all appeared in the proceeding. An Amicus Curiae was also appointed by the Court. Given that the PAUP process was running in parallel, the Court was careful to clarify that its role was not to consider the merits of the provisions or approach, just the lawfulness of the provisions before it.
1 Re Auckland Council [2016] NZEnvC 056.
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Putting to one side concerns with uncertainty of the specific proposed rules, the Court found that following Queenstown Airport2 a rule that does not specify the activities that are expressly allowed subject to a grant of resource consent would be ultra vires under section 77A(1) and section 77B(3) of the Resource Management Act 1991. The proposed rules were therefore arguably ultra vires under the same sections, as the activity for which land use consent is required is not identified, and on that basis the declarations seeking to validate the lawfulness of the rules were declined.
With many current, or upcoming plan reviews, this statutory interpretation is something councils and submitters alike will need to keep in mind.
HOUSING ACCORDS AND SPECIAL HOUSING AREASWith the 16 September 2016 sunset date of the Housing Accords and Special Housing Areas Act 2013 (HASHAA) not far away, an influx of proposals for new special housing areas (SHA) is anticipated. In that context, while there is currently limited time left to run (in respect of establishing SHAs and filing consents under HASHAA), a recent High Court decision provides territorial authorities with guidance on the relevant considerations for the SHA decision making process.
The nuts and bolts of the HASHAA were reviewed in the recent High Court (Court) decision of Ayrburn Farms Developments Limited v Queenstown Lakes District Council.3
In that case, the Court found that the Queenstown Lakes District Council (QLDC) made no errors in deciding not to recommend to the Minister of Housing (Minister) a proposal by Ayrburn Farms Developments Limited (Ayrburn) for the establishment of a SHA.
The proposal by Ayrburn was for a medium density residential development of 150 new houses on a 45.7 hectare site near Arrowtown. Development in this area has been the subject of significant resource management litigation, including the frequently cited case of Hawthorn.4
Under HASHAA the Governor-General may, upon recommendation of the Minister, declare an area within a scheduled district (including Queenstown) to be a SHA. The Minister can only make a recommendation if the relevant territorial authority has recommended the area to the Minister (or public notice of an intention to terminate the housing accord has been given).
QLDC has a policy framework to guide the assessment of potential SHAs for recommendation to the Minister. One criteria of the policy is that preference would be given to expressions of interest adjacent to, or adjoining, the Arrowtown Urban Growth Boundary (UGB). The location of proposals in relation to the UGB was considered to be the most sensitive Resource Management Act 1991 (RMA) issue to balance against HASSHA.
In assessing the Ayrburn Proposal, a Council Officer’s report to the QLDC noted, among other things, that the proposal did not fit well with the locational criteria in the
policy as it was located 2km from the UGB. QLDC decided not to recommend the proposal to the Minister, one of the reasons being the distance of the proposal from the UGB.
It was the decision not to recommend to the Minister that has the subject of the judicial review application. One of the arguments raised by Ayrburn was that QLDC took into account irrelevant RMA matters and did not give primary weight to housing affordability (which it considered to be the purpose of the HASHAA).
The Court noted that although HASHAA does not set out considerations that must be taken into account in deciding whether or not to recommend a SHA, this does not mean the scope of considerations is unlimited. There are factors which clearly limit the relevant considerations. It agreed with Ayrburn that the purpose of HASHAA (to enhance housing affordability) must be a consideration in that decision making process. However, the Court also held that QLDC was entitled to take into account RMA and planning considerations in its decision making process.
The Court disagreed with Ayrburn’s argument that housing affordability was to be given ‘primary’ weight. No differentiation in the importance of the considerations was made by the Court. On that basis, the Court found that QLDC did not err at law. The Court considered that the decision not to recommend the Ayrburn proposal to the Minister was lawfully available to QLDC.
GETTING FIRE WISE – AN UPDATE ON THE NEW ZEALAND FIRE SERVICES REVIEWOn 29 April 2016, Internal Affairs Minister Peter Dunne announced funding of $303 million over five years to combine urban and rural fire services into one organisation. The New Zealand Fire Service (NZFS), National Rural Fire Authority (NRFA) and the fire functions of more than 40 Rural Fire Authorities will merge to become Fire and Emergency New Zealand (FENZ) by 1 July 2017. According to the Minister, this change will better reflect the wide range of services that New Zealand firefighters provide for their communities, including callouts to road accidents, hazardous substances emergencies, and natural disasters.
$112 million of capital funding will be spent on the transition to FENZ over four years, beginning in 2016-17. The remaining $191 million of operating funding over four years from 2017-18 will be spent on new measures to address funding gaps in rural fire services, to set up local committees to ensure that community needs are well understood and serviced by the new organisation, and to provide better support for New Zealand’s 12,000 fire volunteers.
The fire levy (paid on insurance for contents, property and motor vehicles) will become the main source of funding for the new organisation, replacing a variety of funding sources for rural fire services. There will be a public consultation every three years on the level of the fire levy, making the funding of fire services more transparent.
The Department of Internal Affairs (DIA) initially led the review process, including early transition design preparation. The NZFS Board took over responsibility from DIA on 1 April 2016 and now leads the review process.
2 Queenstown Airport Corporation Ltd v Queenstown Lakes District Council [2014] NZEnvC93. 3 [2016] NZHC 693. 4 Queenstown Lakes District Council v Hawthorn Estates Ltd [2006] NZRMA 424 (CA).
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A Transition Committee, which is responsible for the day-to-day elements of the transition to the new organisation, has been established and met for the first time on 16 May 2016. A Transition Programme Director will also be appointed to lead the programme team and help the Transition Committee to manage the establishment of the new organisation.
Looking ahead, enabling legislation is likely to be introduced to the House of Representatives within the next few months. It will provide for issues such as how assets will be transferred from the current fire services to the new entity and the details of an updated offences and penalties regime. The legislation will likely be enacted in late 2016 in preparation for the commencement of FENZ on 1 July 2017.
The establishment of FENZ will have significant implications for territorial authorities and members of Enlarged Rural Fire Districts, who will no longer exercise functions under the Forest and Rural Fires Act 1977. Arrangements for the transfer of assets, staff, and other matters are currently being worked through as part of the transition process and will be addressed in the enabling legislation.
RESOURCE LEGISLATION AMENDMENT BILL DELAYEDThe Local Government and Environment Select Committee was due to report back on the Resource Legislation Amendment Bill on 3 July 2016. The Select Committee was recently granted an extension until 6 September 2016.
The reasons cited for the two month delay include the over 1,000 substantive submissions received, and the complicated issues raised in public hearings.
If you have any questions, or require further information regarding any aspect of this newsletter, please contact us.
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KEY CONTACTS
Kerry AndersonPartner+64 4 474 [email protected] Profile
Anne BuchananSenior Associate+64 9 300 [email protected] Profile
Megan YardleySenior Associate+64 4 918 [email protected] Profile
Kierra KrumdieckSolicitor+64 4 474 [email protected] Profile
Stephen QuinnPartner+64 4 474 [email protected] Profile
Ashley CornorSenior Associate+64 4 474 [email protected] Website Profile
Emma ManoharSenior Solicitor+64 4 918 [email protected] Profile
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