Coastal land development
Abstract
New Zealanders have always had a strong relationship with the coastal environment and there is increasing demand for the subdivision, use and development of coastal space and resources. The complex nature of the coastal environment means that managing the effects of coastal land development is challenging. If not managed proactively, coastal land development pressures can lead to adverse effects, both on land and within the coastal marine area.
This guidance note aims to assist resource management practitioners understand the issues associated with coastal land development and help address the challenges of management by:
- providing guidance on defining the coastal environment
- outlining roles and responsibilities within the coastal environment and the need for integrated management
- outlining the issues arising from coastal land development and identifying methods to manage the effects
- providing best practice examples for managing the effects of coastal land development, including statutory and non-statutory methods
- directing practitioners to relevant case law and further information sources.
This guidance note focuses on subdivision, use and development pressures on the landward part of the coastal environment and methods to manage the issues and effects arising from these pressures. These include:
- preserving the natural character of the coastal environment
- protecting coastal landscapes
- maintaining coastal biodiversity
- maintaining and enhancing public access
- recognising and providing for the special relationship of tangata whenua with the coastal environment
- identifying and protecting coastal historic heritage
- managing coastal hazards.
Some of the 'flow-on effects ' of coastal land development on the coastal marine area are discussed, including competition of space driven by coastal land development, and coastal water quality. There is however a wide range of coastal management issues within the coastal marine area itself that are not directly addressed. Important coastal marine area issues that are outside the scope of this guidance note but could be usefully covered in future guidance material include development and use of ports and marinas, dredging and sand extraction, reclamations/declamations, and marine energy generation. There are alternative sources of information currently available on aquaculture and the Foreshore and Seabed Act 2004.
Guidance note
Introduction
Defining the coastal environment
Roles and responsibilities in the coastal environment
Achieving integrated management of the coastal environment
Coastal environment: issues, effects and management methods
Introduction
Managing the effects of coastal land development on the wider coastal environment is complex. This is primarily due to the nature of the coastal environment, which involves an inextricably linked relationship between the coastal marine area and adjacent coastal land. The subdivision, use and development of coastal land coastal land will invariably result in flow-on effects to the coastal marine area.
The integrated nature and national importance of the coastal environment is recognised in the New Zealand Coastal Policy Statement 1994, which provides the national policy framework to manage the coastal environment under the Resource Management Act (RMA). The New Zealand Coastal Policy Statement 1994 has been reviewed and the Department of Conservation has prepared and publicly notified the Proposed New Zealand Coastal Policy Statement 2008 (Proposed NZCPS).
Note that this guidance note will be reviewed in the future to reflect the changes made to the New Zealand Coastal Policy Statement.
There are a number of factors that add to the complexity of managing coastal land development including:
- the difficulties in defining the coastal environment
- the complex nature of coastal land development issues that often cross areas of jurisdictional responsibility and require integrated management
- the wide range of effects that may be generated by coastal land development, with potential to adversely affect all the matters of national importance identified in s6 of the RMA.
Given the complexity of coastal management in the wider coastal environment this guidance note provides an overview of coastal land development issues and identifies methods to manage these. The specific issues associated with coastal land development addressed in this guidance note include:
- preserving the natural character of the coastal environment and protection from inappropriate subdivision, use and development
- protecting coastal landscapes from inappropriate subdivision, use and development
- maintaining coastal biodiversity
- maintaining and enhancing public access to and along the coast
- recognising and providing for the special relationship of tangata whenua with the coastal environment
- identifying and protecting coastal historic heritage from inappropriate subdivision, use and development
- managing coastal occupation and associated competition for space
- managing water quality in the coastal marine area
- managing coastal hazards.
There are many important coastal management considerations within the coastal marine area that are outside the scope of this guidance note. While development within the coastal marine area is outside the scope of this guidance note, it is important to consider the potential conflict with coastal marine area activities resulting from coastal land development.
Defining the coastal environment
Defining the coastal environment is important to manage the wide range of coastal development issues and effects, and to understand the roles and responsibilities within the coastal environment. The RMA does not define the 'coastal environment ' but the s6(a) reference to the coastal environment specifically includes the coastal marine area, which is defined in s2 of the RMA.
The challenge in practice is defining the inland boundary of the coastal environment. This will generally need to be determined on a case-by-case basis relative to the issue being addressed. Policy 1 of the Proposed NZCPS 2008 provides a useful list of key components that form part of the coastal environment.
The Courts have also defined the coastal environment in a number of ways:
- "What constitutes the coastal environment will vary from place to place and according to the position from which a place is viewed. Where there are hills behind the coast, it will generally extend up to the dominant ridge behind the coast." (Source: Northland Regional Planning Authority v Whangarei County (1977) A4828 (TCPAB))
- "An environment that is a complex, diverse, and a fragile ecological and environmental system, which included inland lakes, dunes, and a wetland area that were all contiguous with, or close to, the actual coastline." (Source: Coutanche v Rodney DC W94/93 (PT)).
Practitioners have used a number of different methods to define the coastal environment. Whatever method is used, policy statements and plans should include a clear and transparent definition of the coastal environment that can be easily interpreted and applied. It is useful to provide robust criteria to define the coastal environment as well as depicting the boundary of the coastal environment on relevant planning maps.
Roles and responsibilities in the coastal environment
The Minister of Conservation, regional councils and territorial authorities all have responsibilities under the RMA for managing coastal development. These functional responsibilities and the hierarchy of RMA coastal planning documents are depicted in Figure 1: Integrated management of the coastal environment - roles and responsibilities under the RMA. The linkages between RMA documents are important to understand the role and responsibilities of these agencies within the coastal environment.
Figure 1: Integrated management of the coastal environment - roles and responsibilities under the RMA
Text description of image: This figure shows the boundaries of different agencies responsibilities in the coastal environment and the relevant RMA planning documents. The New Zealand Coastal Policy Statement and regional plans (coastal environment) encompass the wider coastal environment whereas regional coastal plans are limited to the coastal marine area which extends from mean high water springs to the outer limit of the territorial sea. Regional policy statements state objectives and policies across the coastal environment whereas regional and district plans state objectives, polices and rules on coastal land above mean high water springs.
Minister of Conservation 's responsibilities
The Minister of Conservation 's statutory functions under the RMA are set out in section 28. These functions are:
- preparing and monitoring the New Zealand Coastal Policy Statement
- approving regional coastal plans and regional coastal plan changes
- making decisions on applications for coastal permits for 'restricted coastal activities '
- making decisions relating to recognised customary activities under Schedule 12.
New Zealand Coastal Policy Statement
The Department of Conservation, on behalf of the Minister of Conservation, prepares, administers and reviews the New Zealand Coastal Policy Statement (NZCPS). The existing NZCPS (1994) has been reviewed and the Department of Conservation has released the Proposed NZCPS 2008.
The NZCPS 1994 is an integral document to guide agencies involved in managing the effects of coastal land development. Section 56 of the RMA sets out the purpose of the NZCPS, which is to state policies to achieve the purpose of the RMA in relation to the coastal environment.
The NZCPS 1994 provides broad guidance as to the desired pattern of coastal development and regional and district councils are required to give effect to the NZCPS through their plans and policy statements (s62, s67 and s75 of the RMA). This includes the requirements to:
- identify scenic, recreational and historic areas, and landscape features that should be given special protection, and provide for their special protection (policy 3.1.2)
- recognise, protect and enhance the contribution open space makes to amenity values in the coastal environment (policy 3.1.3)
- define what form of development is appropriate in the coastal environment, and where it would be appropriate (policy 3.2.1).
When considering applications for resource consents decision-makers, including the Minister of Conservation (when dealing with restricted coastal activities), must have regard to relevant NZCPS policies.
The NZCPS 1994 has been incorporated into 1st generation plans and policy statements with varying degrees of success. An independent review of the NZCPS 1994 found that NZCPS policies have been implemented effectively in regional policy statements and regional coastal plans. However, the review found the NZCPS was only partially effective in influencing district plans, and was only generally referred to in resource consent applications.
Regional council responsibilities
The functions of regional councils are set out in s30 of the RMA. Regional councils are responsible for preparing and implementing regional policy statements and regional plans, including a mandatory regional coastal plan which covers the coastal marine area. Regional councils may incorporate the regional coastal plan into a regional plan that applies to the wider coastal environment (often referred to as regional coastal environment plans) to encompass the coastal marine area and any related part of the coastal environment (refer s64(2) RMA).
Territorial authority responsibilities
The functions of territorial authorities are set out in s31 of the RMA. Territorial authorities are responsible for preparing and implementing district plans to manage the effects from the use, development or protection of land above mean high water springs. Territorial authorities also may impose bylaws on land and the upper part of the coastal marine area down to mean low water springs under the Local Government Act 2002.
Roles and responsibilities in the coastal environment under legislation other than the RMA
There are a number of authorities who also have responsibilities for the coastal environment under legislation other than the RMA, including:
- Department of Conservation
- Land Information New Zealand
- Maritime New Zealand
- Ministry of Economic Development
- Ministry of Fisheries
- Ministry of Justice
- New Zealand Historic Places Trust
Achieving integrated management of the coastal environment
Coastal land development issues and effects often cross jurisdictional boundaries so it is important that practitioners can take an integrated management approach. This can be achieved through:
- regional policy statements
- incorporating a regional coastal plan into a regional plan that applies to the wider coastal environment (often referred to as regional plan: coastal environment or regional coastal environment plan)
- developing combined plans within one authority (eg, the Tasman Resource Management Plan, which combines both regional and district plan matters, and Horizon 's One Plan, which is a combined Regional Policy Statement, Regional Coastal Plan and Regional Plan)
- developing combined plans between local authorities (eg, the Proposed Wairarapa District Plan, prepared by Masterton, Carterton and South Wairarapa District Councils)
- developing complementary provisions in plans with a common boundary to address issues across the land/sea interface (eg, policy 4.2.45 of the Wellington Regional Coastal Plan has policies that recognise the design guides in the Wellington City District Plan for the Lambton Harbour Development Area)
- preparing non-statutory strategies that integrate the functions of regional councils and territorial authorities (eg, the Wairarapa Coastal Strategy)
- holding joint hearings on resource consent applications
- delegating functions, transferring powers and joint management agreements
- developing and implementing combined monitoring strategies, as described in the State of the Environment Monitoring Guidance Note
- preparing bylaws that complement regional and district plan policies
- holding joint forums of agencies involved with the coastal environment (eg, Hauraki Gulf Marine Park Forum)
- developing supporting legislation, such as the Hauraki Gulf Marine Park Act 2000, which provides for integrated management of the Hauraki Gulf across 21 statutes including the RMA, Conservation Act 1987 and Fisheries Act 1996
- engaging in community based forums such as the Whaingaroa Environment Centre, the Fiordland Marine Guardians and Kaikoura-Te Korowai o te Tai o Marokura, or collaborative initiatives, such as Shore Futures in Waikato.
Further information on integrated coastal management, including case studies, can be found in the Environmental Defence Society publication Beyond the Tide: Integrating the management of New Zealand 's coasts.
Coastal environment: issues, effects and management methods
Getting started
Developing an RMA response to coastal land development involves:
- defining the coastal environment
- gathering information
- consultation
- identifying and assessing coastal development issues and desired outcomes
- developing an appropriate resource management strategy
- developing objectives, policies and methods to address coastal development issues and achieve specified environmental outcomes.
Effective management of coastal land development issues requires an integrated approach, and this is particularly important in terms of potential flow-on effects into the coastal marine area. Coastal land development issues are associated with numerous effects and should not be considered in isolation of the wider resource management issues such as those listed in Greater Wellington 's Draft Regional Policy Statement.
Natural character of the coastal environment
Preserving the natural character of the coastal environment and protecting it from inappropriate subdivision, use and development is a matter of national importance under s6(a) of the RMA. Preserving indicates the need to maintain in the existing state which presents a challenge for practitioners as subdivision, use and development can significantly change the character of the coastal environment. Natural character is also closely linked to the protection of coastal landscapes.
Natural character always exists to some degree in coastal areas and can vary on a spectrum from pristine natural environment to highly modified coastal environments. New built forms and inappropriate coastal development can adversely affect natural character even in highly modified coastal landscapes. Particular consideration needs to be given to protect unmodified natural landscapes and to avoid the cumulative effects on natural character arising from sprawling or sporadic subdivision.
Particular natural character issues often encountered by practitioners when managing the effects of coastal land development, and the methods available to manage these, are set out in Table 1.
| Table 1: Natural character issues and management methods | ||
|---|---|---|
Issue |
||
Protecting elements of natural character important to tangata whenua |
||
Coastal landscapes
Protecting outstanding natural features and landscapes from inappropriate subdivision, use or development is a matter of national importance under s6(b) of the RMA. Coastal landscapes often have features with a strong natural character component which may make them outstanding and closely linked to the preservation of natural character under s6(a). Many coastal landscapes are also of particular significance to tangata whenua given their long and continued association with the coastal environment.
Coastal land development may modify coastal landscapes through the construction of roads, tracks, buildings and structures and associated earthworks and vegetation clearance. Coastal landscapes can be particularly vulnerable to impacts from coastal development due to the high visibility of these landscapes from the sea, foreshore and skylines.
The challenge for practitioners is to define and evaluate coastal landscapes and provide for their appropriate level of protection in RMA policies and plans. The Environmental Defence Society 's publications Landscape Planning Guide for Peri-Urban and Rural Areas, and Community Guide to Landscape Protection under the RMA and the Landscape Guidance Note provide guidance on defining, managing and protecting landscapes.
Particular coastal landscape issues often encountered by practitioners when managing the effects of coastal land development, and methods available to manage these, are set out in Table 2.
Coastal biodiversity
Biodiversity occupies both the land and sea parts of the coastal environment. While the impacts of coastal development on terrestrial biodiversity are reasonably well known, there is much less detailed information on the impacts on marine biodiversity, including significant coastal marine habitats.
Pop-out: In this guidance note 'biodiversity ' is used as shorthand for the term 'indigenous biological diversity ' that is used and defined in the RMA.
All councils have the function of maintaining indigenous biodiversity, including coastal biodiversity, under sections 30 and section 31 of the RMA. Councils are also required to recognise and provide for the protection of significant indigenous vegetation and significant habitats of indigenous fauna, as a matter of national importance under s6(c). Biodiversity considerations also form an integral part of managing landscapes, natural character and in recognising and providing for the special relationship of tangata whenua with the coastal environment.
For general information on biodiversity see the Indigenous Biodiversity Guidance Note (currently being updated) and the Statement of National Priorities for Protecting Rare and Threatened Native Biodiversity on Private Land.
Particular coastal biodiversity issues often encountered by practitioners in managing the effects from coastal land development, and methods available to manage these, are set out in Table 3.
Public access
The ability to access and enjoy the coast is a significant contributor to people 's quality of life and sense of community well-being. New Zealanders have a close association with the coast and the Foreshore and Seabed Act 2004 (s7 and 8) gives every person access rights in, on and over the public foreshore and seabed, and rights of navigation within the coastal marine area.
The maintenance and enhancement of public access to and along the coastal marine area is also recognised as a matter of national importance in section 6(d) of the RMA.
Approximately two thirds of coastal areas that adjoin the foreshore (above mean high water springs) are either owned by the Crown (eg, national parks and reserves, marginal strips, and railway land) or by local authorities (eg, esplanade reserves, public recreation reserves and road reserves), according to the Foreshore Project Final Report 2003 LINZ. Approximately one third of coastal land is in private ownership. Public access can be restricted by coastal land development and increasing competition between different users to occupy space within the coastal environment. Given the high demand for coastal land development, practitioners need to ensure that public access to and along the coastal marine area is maintained and enhanced where possible. It is also useful for councils to identify situations where public access to the coast is inappropriate (eg, for habitat protection, public safety, security).
Particular public access issues often encountered by practitioners in managing coastal land development effects, and methods available to manage these, are set out in Table 4.
Special relationship of tangata whenua with the coastal environment
Tangata whenua have a special relationship with the coastal environment that centres on their role as kaitiaki of the coast, and their associated traditional and cultural values with the coastal environment. The role as kaitiaki involves a responsibility to ensure that the mauri of the coastal environment is protected, and that coastal resources are sustained for future generations to enjoy.
The coast has always been highly valued by tangata whenua due to the wealth of resources it offers. This is reflected in early patterns of settlement and the number of sites and areas of importance to tangata whenua located within the coastal environment. Tangata whenua take a holistic and integrated management approach towards the coastal environment. This concept is known as ki uta ki tai: from the mountains to the sea.
The relationship of tangata whenua with the coastal environment is specifically recognised in Part II of the RMA in s6 (e), 6(f), 6(g), 7(a) and 8
The NZCPS 1994 recognises that tangata whenua are kaitiaki of the coastal environment as one of the general principles for the sustainable management of the coastal environment. The Consultation with Tangata Whenua Guidance Note provides guidance on recognising kaitiakitanga in RMA consultation and decision-making process and the benefits of using consultation with tangata whenua to identify their significant issues in the coastal environment. Key issues to tangata whenua with respect to the coastal environment, and policies to address those issues are often set out in iwi management plans.
Other important legislation to consider when providing for the special relationship of tangata whenua includes:
-
the Foreshore and Seabed Act 2004 which provides a mechanism to protect recognised customary activities in the public foreshore and seabed
- the Fisheries Act 1996 which provides for the establishment of taiapure, mataitai reserves, and temporary closures (eg, rahui) as required (see the Ministry of Fisheries website for more information).
Particular issues often encountered by practitioners in managing the effects of development on the special relationship of tangata whenua with the coastal environment, and methods available to manage these, are set out in Table 5.
Coastal historic heritage
Coastal areas have been favoured places for settlement since humans arrived in New Zealand. Consequently much of the country 's historic heritage is located within the coastal environment, both on land and within the coastal marine area.
Examples of coastal historic heritage include landscapes (eg, Young Nicks Head in Gisborne), structures (eg, ship wrecks, lighthouses), places (eg, Ship Cove in Marlborough Sounds) and sites of significance to Maori (eg,wahi tapu, coastal pa) and other archaeological sites.
The Historic Heritage Guidance Note provides general guidance that is relevant to protecting coastal historic heritage including identifying historic heritage places, assessing heritage values and best practice methods to protect historic heritage (such as the use of incentives, regulatory controls and mapping).
Particular coastal historic heritage issues often encountered by practitioners in managing the coastal land development effects, and methods available to manage these, are shown in Table 6.
Table 6: Coastal historic heritage issues and management methods |
||
|---|---|---|
Issues |
||
Regional policy statements |
Community approaches and joint initiatives |
|
Regional policy statements |
Community approaches and joint initiatives |
|
Occupation and associated competition for space
Coastal development is often accompanied by increasing competition between different users for occupation of space within the coastal environment. This is a particular issue within the coastal marine area as most of it is in Crown ownership (public foreshore and seabed) and people expect it to be available for public use and enjoyment.
As populations and development pressures increase, practitioners may face issues associated with increased demand for space for buildings, structures, and facilities, both on land and within the coastal marine area. This demand comes from the need to support recreational activities (eg, walking, swimming, surfing, kayaking, jet skiing and boating), commercial activities (eg, ports and aquaculture), and infrastructure (eg, roading, seawalls, stormwater outfalls, and marine energy generation).
Where coastal development uses and activities are not compatible or are not managed proactively and effectively, the result is competition for space and increasing conflict within the coastal environment. This may restrict public access to varying degrees, impact on natural character and coastal landscapes, increase natural hazards, affect coastal historical heritage, impact on coastal biodiversity and the special relationship of tangata whenua with the coastal environment.
Particular coastal occupation and competition for space issues often encountered by practitioners in managing coastal land development effects, and methods available to manage these, are set out in Table 7.
Water quality
Coastal land development can have a significant impact on water quality and ecosystems in the coastal marine area if discharges to the coast are not well managed. Discharges may impact on the mauri (life essence or life-supporting capacity) of water in the coastal environment, and the cultural relationship that tangata whenua have within the coastal marine area. The Surface Water Quality Guidance Note provides guidance on maintaining surface water quality which is particularly important in terms of the flow-on impacts on coastal water quality.
This guidance note focuses on three types of discharges from coastal land development and the impacts on coastal water quality:
- contaminants - sediment from vegetation clearance and earthworks (see the Earthworks Guidance Note) and heavy metals/toxins
- wastewater, including sewage
- stormwater.
These discharges can either be point source or non-point source.
Particular coastal water quality issues often encountered by practitioners in managing coastal development effects, and methods available to manage these, are set out in Table 8.
Coastal hazards
Coastal erosion, coastal flooding, and tsunami are all natural coastal processes which become hazards where they pose a threat to human property and/or life. The risk from coastal hazards is being exacerbated from sea-level rise (linked to climate change) and increasing development at the coastal margins.
This guidance note provides an overview of:
- how coastal development can exacerbate coastal hazard risk
- options for managing coastal hazards
- how coastal hazards can impact on coastal values.
More detail on coastal hazards and climate change, and methods to avoid or reduce coastal hazard risk, can be found in the Coastal Hazards and Climate Change Manual and the Natural Hazard Guidance Note (under development).
Coastal development can exacerbate coastal hazard risk if buildings, structures and activities are located too close to the coastal margins, potentially occupying hazard zones and interfering with natural coastal processes and defenses. This is a particular issue for practitioners as many people want to live close to the coastal edge, increasing the pressure for private buildings and associated infrastructure in potential hazard zones. This pressure for high value development makes it difficult for local authorities to use either land-use planning (land-use rules to control the direction of development) or market instruments (eg, acquisition) to avoid the risk from such coastal hazards.
The best options for managing coastal hazards are based on avoiding buildings and infrastructure in coastal hazard zones. However, many parts of the coast that are susceptible to coastal hazards are already developed. Where these areas are in private ownership there is often little ability for councils to adopt the preferred option of avoidance as property owners are reluctant to relocate.
A significant coastal hazard issue for practitioners relates to existing use rights under section 10 of the RMA. This provision allows property owners to construct a replacement building on the same site provided the effects of the new building/use are the same as or similar to the existing building/use. However reliance on section 10 to safeguard existing use rights does not extend to uses of land managed through regional plans for the purposes of controlling hazards or restricting the use of the coastal marine area under s12 of the RMA. As such, an integrated approach to manage existing use rights in coastal hazard zones may be required to deal with circumstances where a person wishes to rebuild in hazard zones.
Where development takes place in coastal hazard zones there is likely to be pressure for hard structures to protect private properties. These coastal hazard structures include seawalls, groynes and dykes which impact on other values such as amenity, public access, and natural character. Many private property owners believe it is within their rights to protect their property (common law property rights) despite having adverse effects on adjacent public land.
For more information on coastal hazards and methods (including best practice examples) to manage coastal hazard risk see the Coastal Hazards and Climate Change Manual and Natural Hazard Guidance Note.
Best practice examples
The following are best practice examples of plan provisions and other techniques to manage the issues and effects associated with coastal land development.
Natural character of the coastal environment
Coastal landscapes
Coastal biodiversity
Public access
Special relationship of tangata whenua with the coastal environment
Coastal historic heritage
Occupation and associated competition for space
Water quality
RMA provisions
Section 2 Interpretation - includes relevant definitions
Section 5 Purpose
Section 6 Matters of national importance
Section 9 Restrictions of use of land
Section 10 Existing use rights
Section 12 Restrictions on use of coastal marine area
Sections 15, 15A, 15B and 15C Discharges of contaminants into the coastal marine area
Section 28 Functions of Minister of Conservation
Section 30 Functions of regional councils under this Act
Section 31 Functions of territorial authorities under this Act
Section 56-58 New Zealand Coastal Policy Statements
Section 64 Preparation and change of regional coastal plans
Section 64A Imposition of coastal occupation charges
Schedule 1 Part 19 Ministerial approval of regional coastal plan
Schedule 12 Controls in relation to a recognised customary activity
Case law
Defining the coastal environment
Natural character of the coastal environment
Coastal landscapes
Coastal biodiversity
Public access
Special relationship of tangata whenua with the coastal environment
Occupation and associated competition for space
Water quality
Coastal hazards
Related guidance notes
Climate Change
Consultation for plan development
Consultation for resource consents
Consultation with Tangata Whenua
Delegations and Transfers
Earthworks
Esplanade Reserves, Esplanade Strips and Access Strips under the RMA
Frequently Asked Questions about Cultural Impact Assessments
Historic Heritage
Indigenous Biodiversity (currently being updated)
Landscapes (currently being updated)
Natural Hazards (under development)
Plan Development Process
Policy and Plan Effectiveness Monitoring
Renewable Energy (under development)
Structure Planning
Structuring and Organising Regional and District Plans
Subdivision
Surface Water Quality
Writing Provisions for Regional and District Plans
Relevant publications
General
Natural character of the coastal environment
Coastal landscapes
Public access
Relationship of tangata whenua with the coastal environment
Coastal historic heritage
Coastal hazards
Current challenges in practice
What is considered to be 'appropriate ' versus 'inappropriate ' development
The RMA refers to protection of the coastal environment from 'inappropriate ' subdivision, use and development (s6) as a matter of national importance. The challenge facing practitioners is how to articulate and subsequently determine what, when or where development is 'inappropriate '. There are a number of Environment Court cases (in the Environment Waikato Natural Character document) that have discussed this issue, but to date there has been no definitive guidance on this issue.
Definition of 'preservation ' versus 'protection '
The RMA states that the 'preservation of the natural character of the coastal environment ' and the 'protection ' of it from inappropriate subdivision, use and development is a matter of national importance (s6). Determining exactly what 'preservation ' or 'protection ' means is a challenge for practitioners, as it is not defined in the RMA and there is little case law to provide guidance. The Environment Waikato Natural Character document provides a good starting point for practitioners to define and implement these concepts.
Coastal occupation charges
The RMA enables regional councils to apply coastal occupation charges to activities occupying space within the coastal marine area. Section 401A of the RMA states that where no provision for coastal occupation charges has been made in a regional coastal plan, each regional council must include a statement or regime on coastal occupation charges, in accordance with s64A. This applies to the first regional coastal plan or regional coastal plan change notified after 30 June 2007.
Section s64A requires regional councils to carry out an assessment of the extent to which public benefits of the coastal marine area are lost or gained and the extent to which private benefits are obtained by coastal occupation. Many regional councils have been reluctant to implement a plan change including a coastal occupation charging regime due to uncertainties in the interpretation of the legislation and concerns about appeals through the Schedule 1 RMA plan change process.
Common law property rights
Case law has established that common law property rights relating to the use of land, and the right to protect property from the sea (coastal hazards), are subject to the purpose and principles of the RMA (refer Falkner vs. Gisborne District Council [1995] AP1/95) . The effect of this is that any coastal erosion management works must obtain all necessary statutory approvals, and must be consistent with the purpose of the RMA and with the objectives and policies in relevant RMA plans. The challenge for practitioners is to educate landowners that they cannot protect their properties with unauthorised protection works and that management options based on risk avoidance (eg, relocation) are more sustainable in the long term than protection works.
Acknowledgements
This guidance note was prepared by Beca Carter Hollings & Ferner Ltd, in conjunction with Robin Britton and NIWA.
The team acknowledges the input of many stakeholders in the development of this guidance note and would like to thank the following contributors:
Paul Hardy (Department of Conservation), Tony Seymour (Te Puni Kokiri), Sean Isles (Greater Wellington Regional Council), Leigh Robcke (Thames Coromandel District Council), Neil Taylor (Waikato District Council), Megan Tyler (Auckland City Council), Kath Coombes (Auckland Regional Council), Jane Johnston (Local Government New Zealand), Bruce Thompson (Waimakiriri District Council), Emily Thomson (Kapiti Coast District Council), and Gavin Ide (Hawke 's Bay Regional Council).
Other people contacted in the preparation of the guidance note include:
Piotr Swierczynski (Greater Wellington Regional Council), Neil Jackson (Tasman District Council), Steve Markham (Tasman District Council), Pere Hawes (Marlborough District Council), Tania Bray (Marlborough District Council), Heather McNeil (Whangarei District Council), Rob Gerard (Environment Canterbury), Rosalind Wilton (Environment Waikato), Bronwyn Graham (Environment Southland), James Lambie (Horizons/Greater Wellington Regional Council), Barry Knox (Dunedin City Council), Kathy Tohill (Tasman District Council), and Trevor Cullen (North Shore City Council).
Contributors from the Ministry for the Environment include Amanda Moran, Craig Mallett, Ginny McLean, Greg Vossler, Jerome Wyeth, Kate Sedgley, Nicky Blackman, Richard Hills and Viv Smith.
This guidance note was peer reviewed by Sandra McIntyre and Dyanna Jolly with final input by Gina Sweetman and Gen Hewett of MWH.
Definitions
Coastal environment definitions
Bed
The bed is defined in s2 of the RMA as meaning:
"In relation to the sea, the submarine area covered by the internal waters and the territorial sea".
Coastal marine area
The coastal marine area is defined in s2 of the RMA as meaning:
"The foreshore, seabed, and coastal water, and the air space above the water -
(a) Of which the seaward boundary is the outer limits of the territorial sea:
(b) Of which the landward boundary is the line of mean high water springs, except that where that line crosses a river, the landward boundary at that point shall be whichever is the lesser of -
(i) One kilometre upstream from the mouth of the river; or
(ii) The point upstream that is calculated by multiplying the width of the river mouth by five".
Exclusive Economic Zone
Exclusive Economic Zone (EEZ) is an area of sea and seabed beyond and adjacent to the Territorial Sea. The outer limit of the EEZ cannot exceed 200 nautical miles from the Territorial Sea baseline (from the Territorial Sea and Exclusive Economic Zone Act 1977 ).
Foreshore
The foreshore is defined in s2 of the RMA as meaning:
"Any land covered and uncovered by the flow and ebb of the tide at mean spring tides and, in relation to any such land that forms part of the bed of a river, does not include any area that is not part of the coastal marine area".
Low-water mark
Low-water mark means the line representing the intersection with the shore of the plane of the Lowest Astronomical Tide (LAT) (from the Territorial Sea and Exclusive Economic Zone Act 1977 ).
Mean High Water Springs
"The average of the levels of each pair of successive high waters during that period of about 24 hours in each semi lunation (approximately every 14 days) when the range of tides is greatest." (From New Zealand Almanac, Maritime Transport Division).
Further information on defining Mean High Water Springs (MHWS) is including in the Coastal Hazards and Climate Change Manual.
Mean Low Water Springs
"The average level of each pair of successive low tides during the 24 hours of each semi lunation when the range of tides is at their smallest." (From New Zealand Almanac, Maritime Transport Division).
Territorial Sea
Territorial Sea is an area of water not exceeding 12 nautical miles in width, which is measured seaward from the Territorial Sea baseline, typically the low-water mark (from the Territorial Sea and Exclusive Economic Zone Act 1977).
Restricted Coastal Activity
A restricted coastal activity is defined in s2 of the RMA as meaning:
"Any discretionary activity or non-complying activity which, in accordance with s68, is stated by a regional coastal plan to be a restricted coastal activity, and for which the Minister of Conservation is the consent authority".
Maori definitions
Hapu : clan, tribe, subtribe - section of a large tribe
Source: Maori Dictionary www.Maoridictionary.co.nz
Iwi : tribe, nation, people, race
Source: Maori Dictionary www.Maoridictionary.co.nz
Iwi authority : the authority which represents an iwi and which is recognised by that iwi as having authority to do so
Source: s2 of the RMA
Kaimoana : seafood, shellfish
Source: Maori Dictionary www.Maoridictionary.co.nz
Kaitiakitanga : the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Maori in relation to natural and physical resources; and includes the ethic of stewardship.
Source: s2 of the RMA
Mahinga kai : garden, cultivation - the customary gathering of food and other natural materials, and the places where those resources are gathered
Source: Maori Dictionary www.Maoridictionary.co.nz
Mana Whenua : traditional status, rights and responsibilities of hapu as residents in their rohe
Source: Parliamentary Commissioner for the Environment
Mataitai : a reserve on a traditional fishing ground under the Customary Fishing Regulations (Kaimoana Customary Fishing Regulations 1998)
Source: www.fish.govt.nz
Mauri : life principle, special nature
Source: Maori Dictionary www.Maoridictionary.co.nz
Rahui : to put in place a temporary ritual prohibition, closed season, ban, reserve
Source: Maori Dictionary www.Maoridictionary.co.nz
Runanga : council, tribal council, assembly
Source: Maori Dictionary www.Maoridictionary.co.nz
Taiapure : local fishery under the Fisheries Act 1996
Source: www.fish.govt.nz
Tangata Whenua : means the iwi, or hapu, that holds mana whenua over a particular area. For the purpose of this guidance document, the term tangata whenua has been used to apply to both singular tangata whenua groups and multiple tangata whenua groups.
Source: s2 of the RMA
Taonga : valued resources, assets, prized possessions both material and non-material
Source: www.pce.govt.nz
Tikanga : means correct procedure, custom, habit, lore, method, manner, rule, way, code, meaning, reason, plan, practice, convention
Source: Maori Dictionary www.Maoridictionary.co.nz
Wahi Tapu : sacred and spiritual places. Wahi Tapu is defined in the Historic Places Act as sites and places sacred to Maori people in the traditional, religious, ritual or mythological sense. Wahi tapu can be tangible or intangible, and each iwi, hapu or whanau will determine what a wahi tapu is to them.
Whanau : extended family, family group
Source: Maori Dictionary www.Maoridictionary.co.nz
