Decision-making framework

Resource Management Act 1991

Under section 12 of the RMA, a range of activities in the coastal marine area are restricted. No person may undertake the following activities unless they are allowed by a national environmental standard, a regional coastal plan as well as a proposed regional coastal plan (if there is one) or a resource consent: ²⁸⁰⁰

• Reclamation or drainage of the foreshore or seabed
• Construction, alteration or demolition of a structure in the coastal marine area
• Disturbance of the foreshore or seabed (e.g. by excavation or drilling) in a manner that is likely to have an adverse effect (except for lawfully harvesting a plant or animal)
• Deposition of substances that are likely to have an adverse effect on the foreshore or seabed
• Introduction of any exotic or introduced plant in, on, or under the foreshore or seabed
• Generally destroying, disturbing or damaging any part of the foreshore or seabed which is likely to have an adverse effect on historic heritage
• The occupation and use of space in the common marine and coastal area
• Carrying out activities within the coastal marine area

The regional coastal plan, required to be prepared by regional councils and approved by the Minister of Conservation, determines whether a major marine development in the coastal marine area will require consent, and what kind of consent will be required. In practice, all major developments in the marine area are likely to require resource consent, because of the potential significance of their effects. When considering a resource consent application, the consent authority must have regard to the actual and potential effects on the environment of allowing the activity (Section 104 RMA) including the provisions of the New Zealand Coastal Policy Statement 2010 (NZCPS) and applicable regional policy statement and regional coastal plan. 

New Zealand Coastal Policy Statement 2010

Several objectives in the NZCPS seek to ensure that major marine developments, along with other activities, do not compromise the protection of natural coastal resources. ²⁸⁰¹

The NZCPS contains a number of policies relevant to major marine developments. These policies attempt to strike an effective balance between providing for activities in the coastal environment and ensuring that important natural resources and community and cultural values are protected in doing so. It requires decision-makers to encourage consolidation of existing coastal settlements and urban areas where this will contribute to the avoidance or mitigation of sprawling or sporadic patterns of settlement and urban growth. ²⁸⁰²

Policy 6: Activities in the coastal environment

1. In relation to the coastal environment:
     a.  Recognise that the provision of infrastructure, the supply and transport of energy including the generation and transmission of electricity, and the extraction of minerals are activities important to the social, economic and cultural well-being of people and communities;
     b.  Consider the rate at which built development and the associated public infrastructure should be enabled to provide for the reasonably foreseeable needs of population growth without compromising the other values of the coastal environment;
     e.  Consider where and how build development on land should be controlled so that it does not compromise activities of nation or regional importance that have a functional need to locate and operate in the coastal marine area;

2. Additionally in relation to the coastal marine area:
     a.  Recognise potential contributions to the social, economic and cultural well-being of people and communities from use and development of the coastal marine area, including the potential for renewable marine energy to contribute to meeting the energy needs of future generations;
     d.  Recognise that activities that do not have a functional need for location in the coastal marine area generally should not be located there

The Department of Conservation has prepared a guidance note which provides detailed assistance to decision-makers on implementing Policy 6, which is specifically focused on coastal activities and addressing their impacts. Through this policy, the Department encourages local authorities to identify what activities have a functional need to be in the coastal marine area, and to provide for those activities in appropriate places by employing an efficient use of space. ²⁸⁰⁴  There is a direction in Policy 6 for decision-makers to consider “reasonably foreseeable needs” when determining the rate at which built development and associated public infrastructure should be provided for.

Port development

Policy 9 outlines the need to ensure development in the coastal environment does not adversely affect the efficient and safe operation of ports. It also requires councils to consider where, how and when to provide for the efficient and safe operation of ports in policy statements and plans. ²⁸⁰⁵  While focused on maintaining the natural state of the environment, the NZCPS seeks to ensure that urban waterfront development does not adversely affect the ability of the country’s national and international ports to operate and connect efficiently and safely with other ports and land-based transport modes, as well as to expand in a strategic manner.

Policy 9: Ports

1. Recognise that a sustainable national transport system requires an efficient national network of safe ports, servicing national and international shipping, with efficient connections with other transport modes, including by:
       a.  ensuring that development in the coastal environment does not adversely affect the efficient and safe operation of these ports, or their connections with other transport modes; and
       b.  considering where, how and when to provide in regional policy statements and in plans for the efficient and safe operation of these ports, the development of their capacity for shipping, and their connections with other transport modes.

The Department of Conservation has prepared a guidance note on implementing Policy 9, NZCPS 2010 Guidance note Policy 9: Ports. This is a valuable resource for any local authority incorporating provisions for port facilities into its planning documents and for submitters on such provisions. The guidance note recognises that a proactive and strategic approach to the management of activities and resources in and around ports is required in order to provide for their ongoing efficient operation and development. ²⁸⁰⁷  In addition, identifying and understanding the reverse sensitivity issues, and controlling the establishment of activities in the vicinity of ports, are necessary to minimise the pressure on local authorities to limit port activities. Identifying a buffer zone around ports, and then including policies and rules in that zone that provide for the operation of a port, are one way to manage reverse sensitivity issues.

Port zones in district plans and regional coastal plans are one mechanism that can be used to address the needs of a port (and where, how and when to provide for the port) as part of an integrated and strategic approach to the management of the coastal environment. ²⁸⁰⁸  The Port Zone provided in the Bay of Plenty Proposed Regional Coastal Plan 2014 provides for the current operational needs of the Port of Tauranga as a matter of priority while “limiting the effects of those activities on cultural values and the environment”. It also provides for the “future expansion and operational needs of the Port of Tauranga and its shipping channels” in “appropriate locations, having regard to the potential adverse effects on the environment”. ²⁸⁰⁹

Reclamation

Reclamation is generally discouraged by Policy 10 of the NZCPS, unless this results in regional benefits. The NZCPS directs that reclamation be avoided in the coastal marine area unless land is not available, the activity can only occur in the coastal marine area, there are no practicable alternative methods to provide for the activity, and the reclamation will provide significant regional or national benefit. ²⁸¹⁰  The Bay of Plenty Proposed Regional Coastal Plan recognises that reclamation, which is identified in the Outline Development Plan Port of Tauranga, is appropriate in terms of specific Port Zone policies and Policy 10 of the NZCPS, “provided that any adverse effects are appropriately managed, including by use of off-site mitigation”. ²⁸¹¹

Particular care will be needed to determine which parts of a marine development need to be located at the land-water interface, and what the safety and efficiency effects would be of alternative locations. ²⁸¹²  Where a reclamation is considered suitable, the design and form of the structure should have regard to the effects of climate change and sea-level rise and avoid the use of contaminated materials. De-reclamation of redundant land is encouraged only where it would help restore the natural character and provide for more public space.

Policy 10: Reclamation and de-reclamation

1.  Avoid reclamation of land in the coastal marine area, unless:

     a.  land outside the coastal marine area is not available for the proposed activity; 
     b.  the activity which requires reclamation can only occur in or adjacent to the coastal marine area;
     c.  there are no practicable alternative methods of providing the activity; and
     d.  the reclamation will provide significant regional or national benefit.

3.  In considering proposed reclamations, have particular regard to the extent to which the reclamation and intended purpose would provide for the efficient operation of infrastructure, including ports, airports, coastal roads, pipelines, electricity transmission, railways and ferry terminals, and of marinas and electricity generation.

4.  De-reclamation of redundant reclaimed land is encouraged where it would:

     a.  restore the natural character and resources of the coastal marine area; and
     b.  provide for more public open space.

Protecting indigenous vegetation and fauna

An applicant for a major development will need to show that there will be no adverse effects on indigenous vegetation and fauna which are threatened, at risk or naturally rare. In relation to other indigenous species and ecosystems, an applicant must show that significant adverse effects have been avoided and other adverse effects have been avoided, remedied or mitigated.

Marine biosecurity is an important issue for ports and marinas, because of the type and number of vessels arriving from overseas and from other New Zealand ports, which can be a significant source of non-indigenous marine organisms. The Department of Conservation’s policy guidance recommends that in policies and plans, providing for ports will have to be integrated with managing the risk of any release and spread of harmful aquatic organisms. ²⁸¹⁴

Protecting outstanding natural character, features and landscapes

The NZCPS requires adverse effects on outstanding natural features and landscapes and areas of the coastal marine area with outstanding natural character to be avoided. This effectively means that major marine developments will not be able to proceed in locations identified as areas of outstanding natural landscapes and features in the coastal environment and should instead be directed to localities where the natural character or landscape values of the area have already been compromised. This is supported by the recent Supreme Court decision that plan changes must give effect to policies 13(1)(a) and 15(a) of the New Zealand Coastal Policy Statement and avoid adverse effects on outstanding natural landscapes. ²⁸¹⁵

Protecting water quality

Policy 23, in addition to addressing the general management of discharges, specifically addresses what is required for managing discharges from ports and other marine facilities. A consent authority will consider whether the structure (both its construction and operation of activities on it) will have adverse effects on water quality, and that where relevant, tidal flushing rates are adequate to ensure that pre-existing water quality is maintained or enhanced in the vicinity of the development.

The NZCPS directs decision-makers to have particular regard to avoiding significant adverse effects on ecosystems and habitats and minimising adverse effects on the life-supporting capacity of water as a result of discharges of contaminants. ²⁸¹⁶  Research in the Auckland region, on the release of contaminants during dredging, indicates that including policies that “require adverse effects to be minimised within a specified mixing zone, and avoided beyond the mixing zone, would provide more guidance to applicants and decision makers”. ²⁸¹⁷

Coastal hazards

The extent to which a major marine development will affect and be affected by coastal processes, including natural hazards, erosion and inundation, will also be considered by a consent authority. The NZCPS requires that applications avoid land use changes or development which would increase the risk of adverse effects from coastal hazards. 

Managing public access

The NZCPS directs decision-makers to maintain and enhance public walking access to, along and adjacent to the coastal marine area, including by avoiding, remedying or mitigating any loss of public walking access resulting from subdivision, use or development. ²⁸¹⁸  As a result, applicants will need to carefully consider how public access to the coastal marine area can be provided for despite the development. There are specified circumstances when imposing restrictions is appropriate. Within some parts of a port, restricting public access along the waterfront may be necessary to protect public health and safety, or to ensure a level of security consistent with port activities. In such cases, applicants may need to identify opportunities to enhance or restore public access in other areas of the coastal marine area, or provide connecting access around the development, if such access cannot be provided in the development itself. ²⁸¹⁹

Cumulative effects

When considering applications to undertake development of structures in the coastal marine area, the consent authority will need to consider the cumulative effects of allowing development in the coastal marine area, in recognition of the fact that it may well be the impact of several small structures in the coastal marine area, taken together, that has the most effect on the natural character or landscape values of the area.

Last updated at 2:11PM on February 25, 2015