Seven tree-related changes to the Auckland Council District Plan

In January 2012, section 152 of the Resource Management (Simplifying and Streamlining) Act 2009 will come into effect – a section which intends to remove blanket tree protection provisions from District Plans.

In response to the Amendment Act, Auckland Council has notified seven plan changes to the Papakura, Manukau, Franklin, Waitakere, Rodney, North Shore City and Isthmus sections of the Auckland Council District Plan. These plan changes seek to protect trees that are currently dealt with under the blanket tree protection provisions, by expanding the Schedule of Notable Trees containing significant trees or groups of trees in each of the above sections of the Auckland Council District Plan. The Schedule of Notable Trees currently lists 3,960 trees, and the plan changes will add a further 1,800.

The purpose of the plan changes is to ensure that the tree schedules continue to represent the most significant trees and groups of trees in the District, and are the result of several months of fieldwork assessing trees that were publicly nominated in 2010.

Due to the time-consuming nature of the nomination process, and the concurrent amalgamation of the various District Councils into one Unitary Authority for Auckland, the final decision on these plan changes will not be reached before section 152 of the Amendment Act comes into effect. In light of this, Auckland Council has successfully applied to the Environment Court for a declaration that these seven plan changes should take immediate effect. The declaration was sought to avoid the possibility of there being a period between 1 January 2012 and the time at which the plan changes would come into effect (estimated to be 6 to 9 months away) during which it would be legal to fell trees that were previously covered by general tree protection provisions, and nominated (but not yet scheduled) under one of the seven new plan changes.

Submissions on the plan changes noted above close on Friday 17 February 2012. Please contact one of the ChanceryGreen team if you would like assistance in drafting a submission, or require further information or advice about tree protection provisions.

Council workstream considers effect of recent Environment Court case

On a related note, the effect of the Amendment Act on blanket tree protection provisions has been tested by a recent Environment Court decision.

In Re Auckland Council, the Court held that ‘A group of trees... specifically identified’ in the Amendment Act was sufficiently broad, and would serve to capture a number of classifications provided for in existing District Plan provisions. In turn, this meant the trees protected by current provisions would potentially remain protected after the Amendment Act comes into effect in January 2012 (despite the Amendment Act’s apparent intention to remove blanket tree protection provisions completely). For further information on the Court’s decision in Re Auckland Council, click here.

As a result of the direction taken by the Environment Court, Auckland Council has established a workstream to assess the impact of the Amendment Act changes to the general tree protection provisions in the various sections of the Auckland Council District Plan.

We understand that this workstream has produced a table setting out Auckland Council’s position as to whether general tree protection rules will remain in force or not after 1 January 2012 (in light of Judge Jackson’s direction in Re Auckland Council). The table is likely to be used by Council planners in order to provide consistent advice as to which general tree protection rules will survive when section 152 comes into effect. We understand that the various sections of the Auckland Council District Plan will be amended in accordance with this recent direction from Council (as has already occurred in the Isthmus section).

Given the above, our advice to tree owners is to ‘check before you chop’, as unlisted trees on private land may still be protected.

Hydraulic fracturing (fracking) has been the subject of moratoriums in some countries, and has featured in domestic media headlines over recent months. In the wake of debate amongst the mining industry and environmentalists, Taranaki Regional Council has released a ‘Hydrogeologic Risk Assessment of Hydraulic Fracturing for Gas Recovery in the Taranaki Region’.

Fracking has been used worldwide for over sixty years to increase the rate at which oil or gas can be extracted from subterranean natural reservoirs. It works by creating fissures in deep underground rock formations, in order to access petroleum, natural gas, shale gas, or coal seam gas reserves. An emulsion of water, sand and chemical agents is pumped into the target formation, and the chemical agents keep the sand in suspension in the fluid throughout the pumping process. When the chemical agents break down, the fluids are removed and the sand remains to keep the fissures open and increase the flow characteristics of the rock.             

The Report examined the use, and assessed the effect, of 43 fracking activities undertaken at 28 wells in the Taranaki region during the period from 2000 to mid 2011. It concludes that there is no evidence of negative environmental impacts at these well sites as a result of the fracking processes utilised.

The fracture fluids used in the fracking operations undertaken in the region during the period reported typically involved 2% chemical additives and 98% water and sand. The Report considered that whilst most of the chemicals used in these fracture fluids are toxic in pure (concentrated) forms, they are safe in the highly diluted levels used for fracking.

Despite finding no evidence of adverse effects at the well sites assessed, the Report acknowledged that fracking poses a low risk of adversely affecting the environment, so should be subject to regulatory controls to ensure its ongoing safety in relation to freshwater aquifers. To this end, the Report recommended that the following controls be implemented on a local level:

• Satisfactory methods for well design, installation and operation to be used by the petroleum hydrocarbon industry, as well as quality control checks to ensure well installation integrity;
• Depth limits to ensure that fracking occurs significantly below freshwater aquifers (i.e. at thousands of metres below ground level, in comparison to freshwater depths at hundreds of metres below ground level);
• The use of natural petroleum hydrocarbon reservoir seals that trap the hydrocarbons in place;
• The use of substantial thicknesses and multiple layers of relatively low permeability geologic seals between the petroleum hydrocarbon reservoir and any freshwater aquifers; and
• Operational management and monitoring measures implemented by the petroleum hydrocarbon industry and regulation and monitoring (including sampling and auditing operational data) implemented by the Council.

 It remains to be seen whether TRC will further endorse the Report’s recommendations with amendments to its Regional Plan.

In light of recent media attention, the Council also sought legal advice, and ultimately determined that from August 2011, resource consents must be sought under Rule 44 of the Fresh Water Plan for all subsurface fracturing discharges to land beneath the Taranaki region. Fracking is therefore considered a discretionary activity in the Taranaki region, and the Council has indicated that resource consents for fracking are likely to be processed on a non-notified basis.

Please contact one of the ChanceryGreen team if you would like further information or advice regarding fracking.

As part of Phase II of the Government’s work programme on resource management reform, a Technical Advisory Group (TAG) is focusing its investigations on sections 6 and 7 of the Resource Management Act 1991 (RMA).

TAG Objectives

The stated aims of the Phase II RMA reform work programme are to:

• provide greater central government direction on resource management;
• avoid duplication of processes under the RMA and other statutes;
• improve the quality and efficiency of Maori participation in RMA processes; and
• improve the economic efficiency of the RMA in general, without compromising its ultimate environmental objectives.

The TAG is required to provide an evidential basis for its advice to the Minister to show how any identified problems create undesirable outcomes. Its final report must also provide information on the cost of problems, and the costs and benefits of any recommended changes.

Review Timeframes

 Ministry officials were to have provided a set of proposals to the TAG by 31 October 2011. The TAG will meet fortnightly until March 2012, when it will report to the Minister.

The TAG is also scheduled to meet certain deadlines during the review period, including:

• identifying problems and substantiating evidence by 30 November;
• identifying key options to resolve identified problems by 21 January; and
• fully developing recommendations by 29 February.

 Once the TAG report has been provided in March 2012, its members will remain available to the Minister for the Environment to provide oral advice until the end of June 2012.

Sections 6 and 7 of the Resource Management Act 1991

The TAG will reflect on sections 6 and 7 in light of their application over the 20 years since the RMA was enacted. Specifically, the group is tasked with considering whether and how these sections could be amended to:

• incorporate various older statutory provisions relating to soil, drainage and rivers into the RMA;
• improve the clarity and consistency of interpretation through clear and modern drafting; and
• reconsider recommendations relating to sections 6 and 7 arising from urban and infrastructure reviews and Phase I of the RMA reforms.

There will also be particular focus on whether sections 6 and 7 could give greater attention to the management of issues resulting from natural hazards, a question that has specifically arisen in the wake of the Christchurch earthquakes.

Urban and Infrastructure Technical Advisory Groups

The TAG will give particular attention to recommendations that arose from the Urban and Infrastructure TAG reports released in July and August last year.

The Urban TAG Report found that the RMA places a low emphasis on urban priorities. The Report pointed out that only one of seven matters of national importance under section 6 and only two of eleven other matters under section 7 have a direct bearing on the built environment. The Report argued that the RMA’s focus on avoiding adverse effects leaves it prone to discourage the changes that are often desirable and necessary in an urban context – a context in which change and development are inherent characteristics.

The Infrastructure TAG made similar findings, and recommended that section 6 be amended to add a specific reference to the development and operation of regionally and nationally significant infrastructure. It further recommended that this new national significance test for infrastructure be applied as the qualifying criterion for a proposed ‘project consent’. The project consent represents an ‘envelope approach’ to development, which would allow projects of national or regional importance to gain one multifaceted project consent for the entire proposal, in the place of the various consents and permits that would otherwise be required.

Building Competitive Cities

In addition to the Urban and Infrastructure TAG Reports, in October last year the Ministry for the Environment prepared the Building Competitive Cities Report, which was not wholly consistent with the prior TAG Reports. It stated that “there is no empirical evidence to suggest that a lack of express recognition of infrastructure in sections 6 and 7 of the RMA is frustrating infrastructure development” and that “there was disagreement among infrastructure providers, decision-makers and stakeholders as to the value or need to include reference to infrastructure in sections 6 or 7”. The place of urban priorities within the RMA is therefore still uncertain, but will be under the spotlight as part of the current Tag review.

Conclusion

It remains to be seen whether sections 6 and 7 of the RMA will be subject to amendment following the TAG Report due to be released in March next year. The TAG will no doubt be assessing how sections 6 and 7 could best meet the Act’s sustainable management purpose, in tandem with the need to respond to modern resource management issues in the year 2012 and beyond.

View our presentation on how the New Zealand Emissions Trading Scheme related to Forestry.

Read the presentation slides from the AUT lecture on Climate Change and Emission Trading presented by Karen Price.

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