Natural and Built Environment Bill Reform Series: Aquaculture and Coastal Matters
Limited changes to coastal matters in the NBE Bill
Coastal provisions in the Natural and Built Environments Bill (NBE Bill) have seen limited change from those in the Resource Management Act 1991 (RMA). However, overarching changes to the existing regime might see previously underutilised tools come into greater use. Aquaculture continues to have bespoke provisions which apply to some plan preparation and consent application processes.
Coastal Matters
Financial incentive tools for managing activities in the coastal marine area (CMA) already exist under the RMA. Although they have lacked consistent application, the NBE Bill looks set to retain them. This includes:
- Coastal occupation charges are subject to s 120 of the NBE Bill and repeat the RMA provisions. This requires a regional planning committee to consider whether a coastal occupation charging regime should be included in a plan, having regard to the extent to which public benefits are lost or gained, and to private benefit obtained, from occupation. A charge cannot be levied unless it is provided for in the relevant plan. Proceeds from charging for occupation must be used only for “promoting the sustainable management of the coastal marine area”.
- Royalties for the removal of shingle, shell, or other natural material are covered in s 240 of the NBE Bill, which remains similar to the RMA equivalent. This requires any condition of consent for removal to include a condition requiring payment of rent/royalties for the extraction (the amount being dependent on regulations and any relevant authorisation held).
- The current tendering process in the RMA for managing competition for occupation of coastal space is retained in the NBE Bill. It is possible that this tendering process will be more readily utilised as a result of long term spatial planning. This planning could create a sense of scarcity and generate greater competition leading to a need for an allocation method and tendering of authorisations. Councils could also look to use the tendering process to achieve the best outcomes for the environment.
Resource consent is still required for a number of coastal-related activities, such as dumping and incinerating in the coastal marine area.
Aquaculture
Aquaculture is treated as a bespoke sub-set of coastal matters under the RMA and this is set to continue into the NBE Bill. The NBE Bill proposes that non-commercial aquaculture activities may now be a permitted activity in plans, however these activities must be registered through a Permitted Activity Notice. Additionally, plans may prescribe aquaculture zones, but these may be limited by customary, recreational and commercial fishing reserves.
Under the NBE Bill, the Minister is also instilled with greater authority. They may now: direct multiple aquaculture activities be heard together; suspend receipt of applications (with consultation); recommend regulations amending plans; and, make decisions on allocating authorisations.
The Bill proposes changes to align with the Fisheries Act 1996. This includes the recognition of aquaculture zones in plans, and rules relating to activities in these areas. The NBE Bill also includes the ability to request a change to the area or rules applying to any aquaculture zone in a plan, with any request to be made to the Ministry for the Environment. Requests may only be made within short timeframes of 30 working days following either: decisions being made on a notified plan, or amendment of a plan following new regulations coming into force.
General themes from submissions include:
- Concern at the lack of hierarchy and potential conflict with no mechanism currently in the draft NBE Bill provisions to reconcile potential conflicts.
- Concern at the lack of integration across the wider legislative framework such as the National Policy Statement on Urban Development as well as the SP Bill and Climate Change Adaption Bill that makes up the suite of changes.
- EDS considers that while the Coastal Environment requires additional management the provisions in the Bill, primarily allocation methods for coastal space and resources should be integrated more closely into provisions concerned generally with the allocation of resources.
- EDS are also concerned at the lack of hierarchy in the System Outcomes, the, currently the lack of hierarchy could allow plan makers to choose to provide new housing and infrastructure in vulnerable coastal landscape as a priority rather than climate resilience. EDS are concerned at the lack of legal push and insufficient political drivers to dissuade that possible outcome. EDS recommend more directive provisions when it comes to plan making, consenting and review/cancellation of existing consents and use rights.
- EDS recommend a more general polluter pays principle when it comes to determining who pays for cleaning up waterways and the coastal environment.
- EDS supports the restriction in the NBE of the removal of natural material from all coastal marine area and supports the recognition of public interest in private marine title.
- EDS supports the broadening of restrictions on harmful substance discharge in coastal marine area from the narrow aquatic life in the RMA to “life”.
- EDS are concerned that the lack of jurisdiction the NBE as currently drafted has on the discharge of harmful substances, at a minimum EDs consider drafting sho0uld be amended to make it plain that the NPF and NBE plans have jurisdiction to control discharges in the coastal marine area even if they are provided for as default permitted activities.
- EDS are concerned at the tension created between the NBE Bill and the New Zealand Coastal Policy Statement which has protections based on the legal direction to recognise natural character that has been removed from the NBE Bill and only references protection of outstanding natural character.
Want to know more?
Please contact a member of our Environments, Planning and Natural Resources Team if you would like to know more.
PDF version: here.