Guidance on transitional matters relating to the New Zealand Coastal Policy Statement 2010

The New Zealand Coastal Policy Statement (NZCPS) 2010 came into effect on 3 December 2010. Revocation of the NZCPS 1994 also took effect from that date.

Here is some guidance on transitional matters relating to the NZCPS 2010 addressing:

• Amending plans to give effect to the NZCPS 2010
• Application of the NZCPS 2010 to resource consent applications
• Policy 29 on Restricted Coastal Activities

Refer to the section of the NZCPS 2010 entitled “Application of this policy statement” (page 7) and Policy 29 Restricted Coastal Activities (page 25).

1. Amending plans to give effect to the NZCPS 2010

Section 55 of the Resource Management Act 1991 (the Act) requires local authorities to amend regional policy statements, proposed regional policy statements, plans, proposed plans, and variations to give effect to any provision in the NZCPS that affects those documents.

The Act requires the necessary amendments to be made as soon as practicable; or within the time specified in the national policy statement (if any); or before the occurrence of an event specified in the national policy statement (if any) (refer section 55(2D)).

The NZCPS 2010 does not specify a time within which the necessary amendments must be made, nor any event before which they must be made. The necessary amendments must therefore be made as soon as practicable. All amendments necessary to give effect to the NZCPS 2010 must be made using the process in Schedule 1 of the Act, except the amendments required by Policy 29 (discussed below).

What is practicable 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. Amendments requiring less work could be made more quickly. Whether it is “practicable” to make amendments gradually to different documents or to make all amendments at the same time to different documents will be a matter for the individual local authority, although there is clearly a requirement to act expeditiously.

It will be up to the local authority to decide whether a variation to a proposed document should be commenced under a separate Schedule 1 process to give effect to the NZCPS or whether any required amendments should be made by a later change (keeping in mind the requirement to amend the document as soon as practicable). The timing of any alterations will vary depending on individual circumstances.

In respect of proposed plans, changes or variations notified before 3 December 2010 the NZCPS 2010 may assist the decision maker in determining whether a proposed policy statement or plan will achieve the Act’s purpose.

2. Application of NZCPS 2010 to resource consent applications 

From 3 December 2010, decision makers on resource consent applications will need to have regard to the provisions of the NZCPS 2010 as a result of s 104(1)(b) of the Act, regardless of when the application was lodged. In this respect, the situation is similar to that if a new plan had legal effect or became operative between a resource consent application being lodged and determined (refer section 88A(2) of the Act). Consideration of requirements for designations, heritage orders, and applications for water conservation orders are similarly affected.

3. Application of Policy 29 - Restricted Coastal Activities

Policy 29 of the NZCPS 2010 states that the Minister of Conservation does not require any activity to be specified as a Restricted Coastal Activity (RCA) in regional coastal plans. As the only basis for specifying RCAs in plans is a requirement in the NZCPS (refer section 68(4) of the Act), this means that in due course there will be no rules specifying activities as RCAs.

Policy 29 also sets out how to remove RCAs already specified in regional coastal plans in accordance with the NZCPS 1994. Regional councils are required to amend documents to delete any specification of an activity as a RCA. This will involve amending any plan provisions referring to RCAs. When the RCA specification is removed, the relevant activity classification remains unchanged. An activity specified as an RCA therefore becomes either a discretionary or non-complying activity, according to the classification in the plan that applied to it as an RCA.

Amendments to remove RCA specifications should be made promptly. There is no longer any policy justification or rationale for activities to continue to be specified as RCAs based on the NZCPS 1994. In accordance with section 55(2), 55(2A) and 57(2) of the Act, amendments to existing RCAs in regional coastal plans are to be made without using the process in Schedule 1 of the Act and as soon as practicable from 3 December 2010, when the NZCPS 2010 took effect. Section 55(2A)(b) of the Act requires local authorities to publicly notify that the amendments have been made, within 5 working days of making them.

The only amendments that can be made in accordance with Policy 29, without using the process in Schedule 1 of the Act, are amendments to remove existing RCA specifications. Other amendments (e.g. changing the activity classification, or provisions regarding notification) are not required by Policy 29 so cannot be made without using the process in Schedule 1 of the Act.

Some resource consent applications for RCAs are being processed at the time the NZCPS 2010 has taken effect. Policy 29 provides that applications publicly notified before a council amends its plan to remove RCAs must continue to be processed as RCAs. Applications lodged, but not publicly notified before a council amends its plan to remove RCAs shall be treated as discretionary or non-complying activities.

Scenarios for applications specified as RCAs in plans are set out below. These address both the effect of the NZCPS 2010 and the changes to the process for RCAs made by the Resource Management (Simplifying and Streamlining) Amendment Act 2009, which commenced on 1 October 2009.

1. Applications publicly notified before 1 October 2009

An application notified before 1 October 2009 is an RCA for which the Minister of Conservation is the consent authority. The Act as it was prior to the 1 October 2009 amendment applies.

2. Applications publicly notified after 1 October 2009 but before the regional coastal plan is amended to remove RCA specifications (including  applications publicly notified after 3 December 2010 but before the plan is amended to remove RCA specifications)

The Act as amended by the Resource Management (Simplifying and Streamlining) Amendment Act 2009 applies. An application in this category is an RCA. The Minister of Conservation is not the consent authority.

3. Applications lodged but not publicly notified before the regional coastal plan is amended to remove RCA specifications

Although the application was prepared for an RCA, it is to not to be dealt as an RCA but rather as an application for a discretionary or non-complying activity, in accordance with the relevant plan. Section 117 of the Act does not apply.

4. Applications made after Council amends the regional coastal plan to remove RCA specifications

An application in this category is not an RCA and is to be dealt with as a discretionary or non-complying activity in accordance with its classification in the relevant plan.