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Vicki Morrison-Shaw and Rowan Ashton on Environmental Case Law Update

Thursday January 11, 2018

Vicki Morrison-Shaw has broad experience across a range of local government, resource management, corporate and Maori law undertakings.  Vicki has significant in-house experience working for a local authority, a Maori consultancy, and a large privately owned land developer with residential/commercial/farming and viticulture interests in Auckland, Ngunguru, Christchurch and Marlborough. Since moving into private practice in 2008 Vicki has continued to advise on a broad range of environmental matters with a particular focus on land and coastal development.  Vicki has appeared as counsel in a range of council and court hearings, was the co-author of Maori Values Supplement to the Making Good Decisions Commissioners Training Programme,  and is currently in her second term on the New Zealand Law Society Environmental Law Committee. Vicki Morrison -Shaw

 

Rowan Ashton is a solicitor at Atkins Holm Majurey practicing in resource management, environmental and public law. Rowan has provided advice and representation to a range of private and public clients regarding consenting, planning, policy developments, land acquisitions, environmental dispute resolution, and due diligence. Rowan has appeared at council hearings and as junior counsel in cases before the Environment Court and High Court in relation to resource consents, plan reviews, plan changes, enforcement and judicial review. 

Rowan Ashton

 

We had the pleasure of sitting down with Vicki and Rowan recently to discuss key challenges and opportunities facing the industry today.

You can find the full Q&A below.

What kind of matters do you deal with in your environmental law team?

Our team deal with a wide range of environmental and public law issues including:

  • Obtaining resource consents and plan changes for property development, infrastructure and mineral extraction activities
  • Acting for submitters regarding proposed resource management policies plans and consents
  • Treaty and Maori law issues including marine and coastal area applications
  • Environmental due diligence
  • Advising local authorities on complex environmental issues and
  • Advising central government bodies on proposed legislative and policy changes

What are some of the key trends and developments in environmental law having an impact right now?

Water issues continue to predominate and present challenges for environmental law, including:

  • Fresh water quality
  • Drinking water provision and
  • Water ownership and taxes

A close second in terms of key trends is the need to enable and facilitate urban development. A number of initiatives have been promoted in this area:

  • National Policy Statement for Urban Development Capacity 2016 – this directs local authorities to provide sufficient development capacity in their resource management plans, supported by infrastructure, to meet demand for housing and business space
  • The development of the Auckland Unitary Plan has provided significant capacity for the intensification of urban development as compared to legacy planning documents
  • The Housing Accords and Special Housing Areas Act 2013 provides a more enabling and streamlined consenting and plan changes in districts identified as having housing supply and affordability issues
  • Proposed legislation to establish Urban Development Authorities which would be endowed with statutory powers to undertake urban renewal and development projects

Do you see a change in courts attitudes in this area of the law?

Case management in the Environment Court has become increasingly proactive with a much greater focus on ensuring matters are progressed promptly. The Environment Court’s mediation service continues to be effective with the significant majority of cases before the Court being resolved in this way.

What impact do you think the new NZ Government might have on the environmental regulations?

The Ministry for Primary Industries has been split into four new divisions: Fisheries New Zealand, Forestry New Zealand, Biosecurity New Zealand and New Zealand Food Safety. Fisheries and Forestry will now be subject to specific ministerial oversight which will likely bring greater focus in these areas.

The introduction of a Zero Carbon Bill (to be consulted on in 2018) and the establishment of an independent Climate Commission have the potential to significantly affect environmental regulation in the long term.

The government has indicated an intention to repeal aspects of the Resource Legislation Amendment Act 2017 that limit rights of submission and appeal on certain resource consent applications.

In terms of fresh water, no resource rentals for water will imposed in this term of parliament, a royalty on bottled water exports is expected, and amendments to the National Policy Statement for Freshwater Management are in store. Some changes following on from the Havelock North Water Inquiry Stage 2 report are also expected.

What’s one tip you would give to your peers in the industry for case reading - if you had to choose one.

Environmental case law is often highly context specific. Be careful in construing a ratio arising from a case and be alive to the sometimes subtle factual distinctions. As with all case law it is important to keep on top of the reading.

Are there any environmental law issues coming in the future that you think practitioners should keep on their radar?

The first regional applications for customary marine title (“CMT”) under the Marine and Coastal Area (Takutai Moana) Act 2011 will be heard by the High Court in 2018. The effect of these applications is already being felt with those seeking resource consents in areas subject to CMT applications being required to seek the views of the CMT applicants prior to lodgement of applications. Once a CMT order is made the holder of the order has (inter alia) a right of veto over resource consent applications in the subject area.

Another environmental issue to keep on the radar is the Building (Earthquake-prone Buildings) Amendment Act 2016. It categorises New Zealand into three seismic risk areas and sets time frames for identifying and taking action to strengthen or remove earthquake-prone buildings. We consider that many earthquake prone buildings will have historic heritage and economic issues that will create difficulties in complying with the requirements of the Act. Proactive planning will be needed to meet these challenges. 

You can hear more from Vicki and Rowan at the Environmental and Planning Reforms and Updates seminar, being held on Wednesday 21 March at the Stamford Plaza Auckland.

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