1 Legal framework
1.1 Which legislative and regulatory provisions govern environment and climate regulation in your jurisdiction?
The key piece of legislation is the Resource Management Act 1991 (RMA). The RMA is currently under a comprehensive review. The act is intended to be repealed in its entirety and will be replaced by three new pieces of legislation. These reforms are discussed further in question 12. As regards to other legislation and regulations that apply to the use of natural resources in New Zealand and/or effects on the environment, the following is a non-exhaustive list of statutes which apply:
- the Biosecurity Act 1993;
- the Forests Amendment Act 1993;
- the Antarctica (Environmental Protection) Act 1994;
- the Maritime Transport Act 1994;
- the Hazardous Substances and New Organisms Act 1996;
- the Fisheries Act 1996;
- the Energy Efficiency and Conservation Act 2000;
- the Hauraki Gulf Marine Park Act 2000;
- the Local Government Act 2002;
- the Land Transport Management Act 2003;
- the Building Act 2004;
- the Walking Access Act 2008;
- the Waste Minimisation Act 2008;
- the Marine and Coastal Area (Takutai Moana) Act 2011;
- the Climate Change Response (Emissions Trading) Amendment Act 2008;
- the Climate Change Response (Emissions Trading Forestry Sector) Amendment Act 2009;
- the Climate Change Response (Moderated Emissions Trading) Amendment Act 2009;
- the Environmental Protection Authority Act 2011;
- the Local Government (Auckland Council) Act 2009; and
- the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.
This legislative regime is subject to change from time to time, depending on the policy direction of any particular government.
1.2 Which bilateral and multilateral instruments on environment and climate regulation have effect in your jurisdiction?
New Zealand is a party to a number of international treaties, covenants and agreements.
The Climate Change Response Act was enacted to implement New Zealand's obligations under the United Nations Framework Convention on Climate Change 1992 and has been amended to incorporate additional duties imposed by subsequent international treaties, being the Kyoto Protocol 2005 and the Paris Agreement 2015.
The following is a non-exhaustive list of the most prominent international agreements which are applicable to environment, maritime and climate change law in New Zealand:
- the Law of the Sea Convention 1982;
- the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972;
- the Convention on International Trade in Endangered Species of Wild Fauna and Flora 1975;
- the Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat 1975;
- the Vienna Convention for the Protection of the Ozone Layer 1985;
- the Montreal Protocol on Substances that Deplete the Ozone Layer 1987;
- the Convention on Biological Diversity 1993;
- the London Protocol 1996; and
- a number of conventions and treaties under the International Maritime Organization arising from the International Convention for the Prevention of Pollution from Ships 1973 (MARPOL), including the MARPOL Protocol 1978.
1.3 Which bodies are responsible for enforcing the applicable laws and regulations? What powers do they have? To what extent do they cooperate? What are the mechanisms for cooperation?
Environmental law duties: Administration of the RMA follows a hierarchical structure, with each level of government responsible for implementing different components of the act. Ministers holding environment and conservation portfolios must set national policies and standards; while regional councils and territorial authorities must adopt policies and plans at regional and district levels. Where lower-order plans come into effect before higher-order documents, the local authorities must ensure that their plans are consistent with their higher counterparts.
Regional and local authorities: Territorial authorities are also empowered to:
- control the use of land, including areas affected by natural hazards or contaminants;
- maintain indigenous biodiversity; and
- manage noise emissions.
Regional councils are responsible for managing air, coastal marine water, water – including its quality and quantity – and indigenous biodiversity by controlling the effects of activities on these environments. Both territorial and regional authorities have consenting functions to grant, monitor and review the permits they have issued.
Central authorities: The Environmental Protection Authority (EPA) (a central government body) has powers under the RMA to investigate and take enforcement action against breaches of the act. A number of other specialist authorities – such as Heritage New Zealand, Pouhere Taonga and the independent Freshwater Commission – also have specific powers under the RMA relating to their respective purposes. The RMA enables ministries as well as other authorities that provide public utilities and infrastructure to designate land to deliver their statutory functions.
Cooperation between authorities: The degree of cooperation between the different agencies when administering and enforcing the RMA is reconciled by the hierarchical nature of the act: the local and regional provisions must give effect to the authoritative national policy or standard. The RMA provides statutory mechanisms for where the different bodies' functions and powers overlap, such as the EPA's ability to intervene on a district or regional permit matter, or for a designation to surpass a district plan.
Climate change duties: The minister of climate change is warranted to administer the Climate Change Response Act (CCR) and holds a number of statutory duties, including:
- setting emissions budgets; and
- preparing emissions reduction and national adaption plans.
The minister also makes recommendations on the appointment of the Climate Change Commission.
The commission's functions are:
- to report and advise on emissions budgets and reductions; and
- to ensure that the target set by the CCR is appropriate.
Cooperation between agencies is facilitated under the CCR through distinct and segregated provisions defining the statutory functions.
1.4 What is the regulators' general approach to environment and climate regulation/action?
The regulators' approaches under both acts could be described as multifaceted. The regulators have numerous statutory functions, including assessing and reporting; but they also exercise influence by setting policies and targets. The proposal to repeal the RMA appears to retain this integrated approach in the replacement legislation.
The parliamentary commissioner's 2020 report noted that the regulators' current approach of collecting data should shift towards a standard, accurate environmental monitoring system. If adopted, this recommendation would improve the regulators' understanding of how New Zealand's policy direction is affecting environmental sustainability.
The regulator's approach under the CCR and towards climate change seeks to implement international treaty obligations and improve New Zealand's resilience to adapt to climate change. Unlike the RMA, most of the regulators under the CCRA are central government bodies and ministers, although recent amendments now require local authorities to consider the effects of climate change in their decision making too.
2 Environmental protection
2.1 What are the key features of the regulatory regimes that protect the following environmental assets in your jurisdiction? (a) Air; (b) Soil; (c) Fresh water; (d) Sea water; (e) Flora and fauna; and (f) Natural habitats and scenic landscapes.
The National Environmental Standards for Air Quality 2004 are a core set of regulations comprising interrelated standards. The standards:
- ban activities which discharge specific contaminants to the air;
- set standards for ambient air quality;
- require wood-burning devices to be of a certain design; and
- require large landfills to collect greenhouse gases.
Local authorities are responsible for monitoring and planning for air quality under the Resource Management Act 1991 (RMA).
National direction is also currently being developed to adopt the recent amendments to the RMA requiring local authorities to consider the effects of greenhouse gases. Whether these regulations will be set as national policy or constituent standards, or both, is yet to be confirmed; but the intent is to assist local authorities when making decisions about planning for and consenting to air discharge permits. The proposed national direction aims to set nationally consistent rules to phase out carbon-fuelled processes.
National direction is currently being developed for the management of highly productive land and soil quality under the RMA. The Ministry for Primary Industries is leading the development of this scheme with support from the Ministry for the Environment. The purpose of the proposed regulations is to provide national direction and standards. It is anticipated that the standards will:
- direct local authorities in how they consider the use of highly productive land within an area suitable for primary production; and
- protect such land from inappropriate use, development or subdivision.
National Environmental Standards for Storing Tyres Outdoors were recently passed and took effect on 20 August 2020. The purpose of these standards is to manage the adverse effects of storing large quantities of used tyres outside. All local and regional plans will need to be updated to be consistent with the new standards.
(c) Fresh water
Freshwater is protected by the RMA and national direction, being the National Policy Statement for Freshwater Management 2020 (NPSFM). The NPSFM requires that freshwater be managed in a way that gives effect to Te Mana o te Wai, which is Te Ao Māori or a view that encompasses the Maori world. Te Mana o te Wai prioritises the health and wellbeing of water bodies before all other needs, including the essential drinking needs of people. If Te Mana o te Wai is effectively implemented in decision making, then freshwater may be used for those other requirements to the extent that its quality is sustained. The NPSFM also aims to improve degraded waterbodies and maintain all others using environment bottom lines, which limit the ability to use freshwater beyond the criteria defined in the NPSFM.
The National Environmental Standards for Freshwater 2020 (NES-F) also implement the NPSFM by setting requirements for carrying out certain activities that pose risks to freshwater environments. Everyone must comply with the standards. All lower-order planning documents, such as regional or local plans, must be consistent with the NES-F.
(d) Sea water
The New Zealand Costal Policy Statement 2010 (NZCPS) is the only compulsory national policy statement under the RMA, which requires that an NZCPS be in effect at all times. The Department of Conservation is the leading agency responsible for managing and implementing the NZCPS with support from the Ministry for the Environment. Local authorities must ensure their planning instruments implement to NZCPS.
The NZCPS applies to all coastal environments, being the coastal marine area and islands within that area; and extends to landward areas, such as intertidal areas, estuaries, coastal wetlands, dunes and land at risk from coastal hazards. The NZCPS also applies to coastal vegetation and the habitats of indigenous coastal species and migratory birds. One of the NZCPS's policies is to adopt a precautionary approach if the effects of an application are uncertain, unknown or little understood, but could be significantly adverse. This policy has resulted in the decline of applications for coastal permits, including where the coastal environment was vulnerable to climate change.
Aquaculture is a significant component of New Zealand's primary industries and is regulated by the National Environmental Standards for Marine Aquaculture 2020 (NES-MA) and regional coastal plans. The NES-MA are a set of national standards which replace regional rules for existing marine farms. The standards aim to ensure that existing operations meet environmental best practice and protect the environment when determining replacement permits. Proposals for new marine activities are not governed by the NES-MA; the applicable regional coastal plan will apply to such applications instead.
The Economic Exclusive Zone and Continental Shelf (Environmental Effects) Act 2012 (the EEZ Act) was enacted to promote the sustainable management of natural resources in the exclusive economic zone and continental shelf around New Zealand. The purpose of the EEZ Act is to promote the sustainable management of natural resources in the exclusive economic zone and continental shelf as well as protect this area from pollution and marine dumping.
The EEZ applies to the area of ocean extending between 12 and 200 nautical miles from the shore of New Zealand including the seabed and subsoil in this zone. The EEZ Act also covers the continental shelf of New Zealand out to the continental margin, except for the first 12 nautical miles from shore, as this coastal marine area is covered by the RMA (see above).
The Ministry for the Environment administers the EEZ Act. However, the Environmental Protection Authority (EPA) is responsible for the day-to-day management and operation of the EEZ Act. This includes duties such as monitoring, enforcement and making decisions on marine consent applications for activities regulated by the EEZ Act.
Where activities will be situated on both sides of the 12 nautical mile boundary, the EEZ Act provides for a joint decision-making procedure so that the EPA and Regional Councils can determine the application under the RMA and the EEZ Act as they apply to each area.
2.2 What are the key features of the regulatory regime that protects against environmental nuisances (eg, noise, odour and light pollution) in your jurisdiction?
The consenting process under the RMA addresses ‘effects on the environment'. This does not entirely displace the ability to pursue an action in tort (nuisance); however, such proceedings are not common.
2.3 What are the consequences of breach of these regulatory regimes?
Breach of any permitted activity rule/provision in statute and/or breach of a condition of a resource consent will lead to enforcement action against the consent holder, usually initiated by the relevant local authority.
3 Climate change/action
3.1 What are the key features of the regulatory regime governing greenhouse gas emissions in your jurisdiction?
New Zealand's target under the Paris Agreement is to reduce emissions by 30% below 2005 gross emissions (or 11% below 1990 emissions) for the period 2021–30. To support this climate change policy, the government made the following commitments:
- New Zealand is to become a world leader in climate change action;
- A new domestic emissions reduction target by 2050 was set into law with the Climate Change Response (Zero Carbon) Amendment Act in November 2019; and
- An independent Climate Change Commission was established in mid-December 2019 to advise the government on climate change mitigation and adaptation to progress towards the new 2050 target emissions budgets and implementation of a National Adaptation Plan.
Recent amendments to the main environmental legislation in New Zealand, the Resource Management Act 1991 (RMA), now require that decision makers take ‘climate change' into account; however, there is no specific reference under the relevant planning and environmental legislation to greenhouse gas emissions.
3.2 What emissions trading regimes are operational in your jurisdiction and what are their key features?
The New Zealand Emissions Trading Scheme (NZ ETS) began operation in 2008 (established by the Climate Change Response Act 2002) and continues to serve as a principal element of New Zealand's policy response to climate change. The scheme has limited application, in that participation is limited to specified activities in certain industry sectors. Specified activities must participate in the scheme, but others are optional, so people carrying out those activities can choose whether to participate. The NZ ETS is the key policy tool for reducing emissions and assisting New Zealand to meet its emission reduction targets and future emissions budgets.
In mid-2020, reforms were made to the NZ ETS to help New Zealand reach its greenhouse gas emissions reduction targets. These changes were intended to provide more certainty to businesses, make the scheme more accessible and improve its administration. The key elements are as follows:
- Support New Zealand's reporting and emissions reduction targets under the Paris Agreement;
- Set a cap in the NZ ETS guided by a provision emissions budget (this cap will decline over time as emissions budgets reduce in line with targets);
- Introduce auctions – the government may sell New Zealand emission units from within the cap. It can also set a confidential reserved price to ensure that units sold in a government auction are not significantly below their value in the secondary market;
- Establish price controls to prevent unaccepted low or high prices in the market, and implement a new cost containment reserve to replace fixed-price option price ceiling;
- Phase out industrial allocation at a rate of 1% each year from 2021 to 2030 (it will increase thereafter); and
- Improve the NZ ETS for forestry – for example, by including average accounting for some post-1989 forests and creating new permanent forestry activity, which will come into force on 1 January 2023.
New regulations came into force in 2020 to implement the legislative amendments. The regulations specify the operation of the government auctions and the overall unit limits. The regulations further prescribe how successful bidders pay for the emission units and transfer processes within the Registry (Climate Change (Auctions, Limits, and Price Controls for Units) Regulations 2020).
The New Zealand government has recently proposed to introduce a new piece of discrete legislation titled Climate Change Adaptation Act. Very little is known about this proposed legislation, but it is understood that the legislation will primarily address the legal and technical issues associated with managed retreat and prescribe how that work will be funded.
3.3 How prominently does renewable energy feature in the energy mix in your jurisdiction? What regulations and other measures have been put in place to promote the use of renewable energy?
New Zealand has the third-highest rate of renewable energy (as a portion of primary supply) in the Organisation for Economic Co-operation and Development, after Norway and Iceland. Approximately 40% of primary energy comes from renewable energy sources in New Zealand. Approximately 80% of electricity comes from renewable energy, primarily hydropower and geothermal power.
New Zealand's target is zero emissions by 2050 and the focus is on a move to a low-emissions economy. The government recognises that renewable energy is a key part of this and is encouraging New Zealand as a whole to transition to increased use of renewables; however, there is no clear pathway as to how this may (or will) occur. The legislation outlined in questions 3.1 and 3.2 is designed to encourage New Zealand to transition to a low-emissions economy, with the government sector and utilities encouraged to lead the way.
3.4 What regulations and other measures have been put in place to promote greater energy efficiency in your jurisdiction?
In addition to the measures set out in questions 3.1–3.3, the Energy Efficiency and Conservation Act was passed in 2000 and established the Energy Efficiency and Conservation Authority (EECA). The purpose of EECA is to encourage and promote energy efficiency measures. EECA was established by statute to work with businesses, government, local government, communities and individuals to integrate energy efficiency and renewable energy into their everyday activities. EECA also provides an advisory service for commercial and industrial users of energy, including energy audits.
3.5 What other initiatives have been rolled out in your jurisdiction to combat climate change and its effects? How are those effects typically manifesting in your jurisdiction at the present time?
The inclusion of ‘climate change' in the RMA, which sets out the consent framework for land, air and water consents, is an important recognition by the New Zealand government of the importance of climate change and the need to take it into account in decision making in New Zealand.
3.6 What impact is Covid-19 likely to have on climate action in your jurisdiction?
It is unlikely to have a direct impact; but the effect of having various lockdown levels has generally made communities more aware of their surrounding environments and more conscious of the impacts that everyday activities may have on them. The New Zealand government declared a ‘climate emergency' in December 2020, which reflected the general consensus both in Parliament and in the community to commit to long-term action to reduce emissions.
4 Environmental permits and approvals
4.1 What environmental permits and approvals are required in your jurisdiction, and when are these typically required?
Resource consents are required under the Resource Management Act 1991 (RMA) to authorise activities that are not identified as permitted activities in the relevant district plan or regional plan. Resource consents include:
- land use consents (under Sections 9 and 13 of the RMA) to authorise the use of land or the bed of a lake or river in a manner which contravenes a district rule, regional rule or national environmental standard:
- subdivision consents (under Section 11 of the RMA) to authorise the subdivision of land that is not expressly allowed by a rule in a district plan or national environmental standard;
- coastal permits (under Section 12 of the RMA) to authorise any reclamation, structure, deposit or disturbance of the foreshore or seabed within the coastal marine area that is not expressly allowed by a rule in a regional coastal plan or national environmental standard;
- water permits (under Section 14 of the RMA) to authorise the taking, use, damming or diversion of any water in a manner that contravenes a regional rule or national environmental standard; and
- discharge permits (under Section 15 of the RMA) to discharge contaminants to water or land unless the discharge is expressly allowed by a regional plan or national environmental standard.
4.2 What is the process for obtaining environmental permits and approvals? If a permit or approval is refused, can the decision be appealed?
An application for resource consent can be made to the district council or the regional council that administers the district or regional plan under which the resource consent is required. The application must be accompanied by an assessment of environmental effects. The council will determine whether the application will be publicly notified. If the application is publicly notified, submissions can be lodged and a hearing held. The council will issue a decision and the applicant and any submitters have a right of appeal to the Environment Court against that decision (Part 6 of the RMA).
4.3 What is the duration of environmental permits and approvals?
The duration of land use consents is unlimited, unless specified in the consent. The duration of other types of consent is a maximum of 35 years or the time specified in the consent (Section 123 of the RMA).
4.4 What, if any, requirements and restrictions apply to the transfer of environmental permits and approvals?
Land use consents and subdivision consents attach to the land and need not be formally transferred. Coastal permits can be transferred to another person by written notice to the council that granted the permit. Water permits can be transferred to any owner or occupier of the site in respect of which the permit is granted, by written notice to the council that granted the permit. A discharge permit can be transferred to any owner or occupier of the site in respect of which the permit is granted, or to any person if the transfer is permitted by a regional plan (Sections 134 to 137 of the RMA).
4.5 What ongoing rights and obligations apply to the holder of an environmental permit or approval?
The holder of a resource consent must comply with the conditions of the resource consent, which may include monitoring and reporting requirements.
4.6 What are the consequences of breach of an environmental approval or permit?
The council may issue an abatement notice for breach of the conditions of a resource consent; or any person may apply to the Environment Court for an enforcement order requiring a consent holder to comply with the conditions of a resource consent (Sections 314 and 322 of the RMA). Contravention of an abatement notice or enforcement order is an offence (Section 338 of the RMA).
5 Waste management
5.1 How is ‘waste' defined and regulated in your jurisdiction? Does the regime vary depending on the type of waste involved?
p>Legislation: The Resource Management Act 1991 (RMA) is New Zealand's main act which regulates waste management. The RMA provides an effects-based regime and provides the framework for managing the effects of activities involving waste in the environment (ie, landfills, cleanfills). Under the RMA, both central and local government can set rules to control the effects of activities involving waste.
Other relevant legislation includes:
- the Local Government Act 2002, under which local government provides for solid waste collection and disposal;
- the Litter Act 1979, under which local government abates and controls litter; and
- the Waste Minimisation Act 2008 (WMA), which encourages a reduction in the amount of waste generated and disposed of in New Zealand.
Under the WMA, there are three sets of regulations:
- the Waste Minimisation (Calculation and Payment of Waste and Disposal Levy) Regulations 2009, which covers the calculation and payment of the waste disposal levy;
- the Waste Minimisation (Microbeads) Regulations 2017, which ban the sale and manufacture of certain products containing plastic microbeads; and
- the Waste Minimisation (Plastic Shopping Bags) Regulations, which ban retailers from selling or providing single-use plastic shopping bags to customers.
Definition of ‘waste': The RMA defines ‘waste or other matter' as "materials and substances of any kind, form, or description".
The WMA defines ‘waste' as:
- anything disposed of or discarded;
- including a type of waste that is defined by its composition or source (eg, organic waste, electronic waste, or construction and demolition waste); and
- including any component or element of diverted material, if the component or element is disposed of or discarded.
The Litter Act defines ‘litter' as "any refuse, rubbish, animal remains, glass, metal, garbage, debris, dirt, filth, rubble, ballast, stones, earth, or waste matter, or any other thing of like nature".
Differing regimes: If material meets the definition of ‘waste' or ‘litter' under the relevant act (above), the rules and obligations under the respective act will apply.
5.2 What key rights and obligations apply to waste operators in your jurisdiction? What are the consequences of breach?
Waste operators have rights and obligations under the RMA, the Litter Act and the WMA.
RMA: Waste operators must hold resource consent from local government for the activity involving waste. Operators must at all times comply with:
- the conditions of any resource consent prescribed by local government;
- any other applicable rules in the relevant district and/or regional plans; and
- any relevant national environment standard prescribed by central government.
If a waste operator breaches any of the above, the operator (either personally and/or the company responsible) may be exposed to enforcement action and possibly monetary fines or imprisonment, depending on the extent of breach and associated environmental harm.
WMA: Under the WMA, waste disposal facility operators must pay levies and must comply with any waste-related bylaws made by the local authority under the act. There are also various record and reporting requirements.
5.3 Are any producer responsibility regimes applicable in your jurisdiction?
In New Zealand, producer responsibility (called ‘product stewardship') is generally voluntary; however, under the WMA, the government can declare a waste stream as a priority product. A ‘priority product' is a product that:
- will or may cause significant environmental harm when it becomes waste; or
- affords significant benefits from reduction, reuse, recycling, recovery, or treatment of the product; and
- can be effectively managed under a product stewardship scheme.
A priority product must have a product stewardship scheme; and all producers, brand owners, importers, retailers and consumers of that product must participate in that scheme.
6 Hazardous substances
6.1 What are the key features of the regulatory regime governing hazardous activities and substances in your jurisdiction?
The following statutes regulate hazardous substances and hazardous activities in New Zealand:
- the Hazardous Substances and New Organisations Act 1996 (HSNO);
- the Health and Safety at Work Act 2015, which includes the Health and Safety at Work (Hazardous Substances) Regulations 2017 (HSW); and
- the Resource Management Act 1991 (RMA).
The HSNO, the HSW and the RMA all play a role in managing risk to human life and health from hazardous facilities.
RMA: The RMA is an effects-based regime and provides the framework for managing the effects of activities in the environment, including the management of hazardous activities and substances.
Under the RMA, district and regional plans can include provisions to manage the effects relating to hazardous substances/hazardous activities. Anyone wishing to establish a hazardous facility will most likely be required to obtain a resource consent from the district and/or regional council, and must comply with any conditions of consent imposed.
HSNO: The HSNO regulates the management, disposal, classification, packaging and transport of hazardous substances. The Environmental Protection Authority (EPA) is responsible for approving and classifying all hazardous substances for use in New Zealand under the HSNO legislation. The controls imposed by the EPA manage the risks of hazardous substances and safeguard people and the environment. The EPA is responsible for approving pesticides, household chemicals and other dangerous goods under the HSNO legislation.
HSW: The HSW legislation aims to secure the health and safety of workers, workplaces and communities. Worksafe New Zealand is responsible for establishing workplace controls for hazardous substances and is the principal enforcement and guidance agency in workplaces. The HSW legislative regime sets out specific requirements/obligations, but does not generally prescribe how compliance must be achieved.
6.2 What key rights and obligations apply to operators of hazardous sites in your jurisdiction?
Operators of hazardous sites must comply at all times with:
- the conditions of any resource consent prescribed by local government;
- any other applicable rules in the relevant district and/or regional plans;
- any relevant national environment standards prescribed by central government;
- the requirements under the HSNO relating to the management, disposal, classification, packaging and transport of hazardous substances; and
- the requirements under the HSW.
6.3 What reporting requirements apply to environmental accidents in your jurisdiction?
Under the HSNO, every person in charge of a substance involved in an incident resulting in death, or a notifiable injury or illness as defined by Section 23 of the Health and Safety at Work Act 2015, or serious environment damage must, unless an enforcement officer attended the incident, report that incident to an enforcement officer. There is an exception if the incident must be reported under any other act. There are also additional reporting requirements for crown entities.
Under the HSW, a person conducting a business or undertaking must notify the regulator of notifiable events (defined in the Health and Safety Work Act 2015). Environmental accidents may fall within the definition of ‘notifiable events' under the HSW.
If workers have concerns about an unsafe or unhealthy work situation, they are entitled to raise their concerns with WorkSafe. WorkSafe will send an inspector to the site only if the work situation could lead to a person's death or cause a very serious injury or illness.
6.4 What is the process for investigating environmental accidents in your jurisdiction?
Investigations may arise under the HSNO, the HSW or the Health Act 1956. Investigations typically arise as a result of a complaint/notification of an environmental accident.
If an investigation is carried out, the person conducting the investigation will necessarily need to decide whether further action is required. Such further action can include:
- further investigation;
- referral to other authorities; or
- a requirement that particular precautionary measures be put in place.
6.5 What are the potential consequences of breach of the regulatory regime governing hazardous activities and substances – both for operators themselves and for directors, managers and employees?
- Prosecution (fines and/or imprisonment);
- Referral to other regulatory authorities; and
- A requirement that precautionary measures be put in place.
7 Contaminated land
7.1 What are the key features of the regulatory regime governing contaminated land in your jurisdiction?
The Resource Management Act 1991 (RMA) provides the main legislation framework for regulation of contamination, supplemented by other statutes such as:
- the Hazardous Substances and New Organisms Act 1996;
- the Health Act 1956;
- the Health and Safety at Work Act 2015; and
- the Building Act 2004.
The RMA regulates contamination by:
- control of the discharge of contaminants into the water, land and air through regional plans;
- the resource consenting process, which regulates changes in land use, subdivisions and soil disturbance for potentially contaminated land under the National Environmental Standard of Assessing and Managing Contaminants in Soil to Protect Human Health; and
- enforcement mechanisms such as abatement notices, enforcement orders and offences.
7.2 Who bears the liability for the clean-up of contaminated land? Can such liability be excluded or subcontracted/delegated?
Abatement notices and enforcement orders may be brought against a party requiring:
- the cessation of the discharge of contaminations; or
- the clean-up of contamination.
Parties may also be prosecuted for more serious breaches of the RMA. Unlike other jurisdictions, the polluter, current owners and occupiers may all potentially be held liable for contamination under the RMA, and there is no defence for ‘innocent owners'.
In practice, however, contaminated sites generally will not give rise to liability for past or current owners and occupiers in the absence of any significant effects unless or until an application is made for consent to a new land use activity or for rezoning of the site in issue.
7.3 How is liability determined in cases where multiple parties have contributed to the contamination?
Responsibility for administering the planning and enforcement regime is assigned to regional councils and territorial authorities. In the event of proceedings being issued under the RMA, the issue of liability is one of evidence and fact in any particular case.
In addition, the Ministry for the Environment provides policy guidance and administers the Contaminated Sites Remediation Fund, which helps regional councils, unitary authorities and territorial authorities to fulfil their obligations for contaminated land managed under the RMA. This provides an annual funding pool for the remediation of contaminated sites that pose a risk to human health and the environment.
7.4 Can individuals bring proceedings against polluters, landowners and/or occupiers where they have been affected by contamination? If so, which court/tribunal is competent to deal with such proceedings?
Where the RMA provides a course of redress to potential litigants, actions in tort or common law are not available. As noted in question 7.2, there is no defence for ‘innocent owners'. If an owner/occupier is held responsible by for remedying contamination by a regional or district council, then under the RMA it may recover their costs from the original polluting party (if it can be identified and is still in existence).
8 Reporting, auditing and disclosure
8.1 Are any public registers of environmental information maintained in your jurisdiction? If so, what are they, who can access them and how? What possibilities exist for third parties to access environmental information and what is the process for doing so?
Territorial authorities hold all permits, consents and licences granted for land use matters, and those relating to air, water and coastal activities. The consents held form part of the public record and copies maybe requested by the public.
8.2 What environmental reporting requirements apply to companies in your jurisdiction?
There are currently no legal requirements for environmental reporting in New Zealand. Financial reporting of environmental matters is current proposed in legislation, but is unlikely to come into force before 2025.
8.3 Are companies in your jurisdiction subject to environmental audit requirements?
Only on a voluntary basis, unless required as part of obligations by parent companies/entities based in other jurisdictions.
8.4 When and how must environmental issues be disclosed (eg, in the event of the potential sale of land or a merger or acquisition)?
The standard forms of agreement for the sale and purchase of property require details of any notices received from territorial authorities and warranties/indemnities for breaches of legislation (which may include the failure to obtain the necessary environmental consents or permits). Commercial agreements usually contain similar requirements
9.1 What environmental and climate taxes are applicable in your jurisdiction?
The ETS is currently the primary regime which incorporates aspects of taxation in respect of climate change impacts relating to forestry. Specific environmental and climate taxes may be introduced through legislative reforms in the future (see section on climate change).
9.2 Are any exemptions or incentives available?
See section on Climate Change.
9.3 What strategies might parties consider to mitigate their environmental and climate tax liabilities?
See section on Climate Change.
10.1 What types of environmental insurance arrangements are put in place in your jurisdiction? Is there any mandatory environmental insurance in your jurisdiction? How sophisticated is the environmental insurance market? What, if anything, is excluded from insurance cover?
There is no specific regime in relation to environmental harm/adverse effects, in the context of the Resource Management Act. However, consent holders and/or those carrying out activities which may be subject to a pollution incident, may potentially seek additional insurance cover to meet the costs of such incident should they be prosecuted and fined for breach of a resource consent or the Resource Management Act.
10.2 What are the ‘green finance' arrangements in your jurisdiction? To whom do they apply? What, if any, obligations do they impose? Who is responsible for monitoring, enforcing and reviewing such arrangements in your jurisdiction?
The author is not aware of any such formal statutory arrangements.
11.1 In which forums are environmental and climate change disputes heard in your jurisdiction?
The Environment Court is a specialist court which hears disputes relating to:
- appeals against applications for resource consent; and
- appeals against provisions of district or regional plans;
The district court hears disputes relating to:
- appeals against abatement notices;
- applications for enforcement orders or interim enforcement orders; and
- prosecutions for offences under the Resource Management Act 1991.
11.2 What issues do such disputes involve?
In general terms there are two types of dispute in the context of the Resource Management Act 1991 and related domestic legislation (such as the EEZ Act): prosecution for an offence (i.e., breach of resource consent or breach of the Act); or an appeal or challenge to the grant of a consent for an activity. A party may also make an application for a "declaration" from the Environment Court, in circumstances where there is uncertainty as to the meaning of provisions of a plan, terms and conditions of a resource consent, and other similar matters. The process followed in making a decision by a regulatory authority may also be challenged by way of judicial review in the High Court.
11.3 What defences and indemnities are available, both for corporates and for individuals?
In the context of prosecution (which this relates to), the principle of strict liability applies. Accordingly, there are limited (if any) defences or indemnities available to an offender. However, a plea in mitigation can cite efforts to remediate the harm caused by the incident and other related actions in response to the incident.
11.4 How are environmental disputes resolved?
The majority of cases before the Environment Court are resolved through alternative dispute resolution, such as mediation by Environment Court Commissioners.
11.5 Have there been any recent cases of note?
At a high level, the most significant decisions of the Environment Court in recent years involve consideration of whether, in the context of both a "plan change" (under Schedule 1 of the RMA), and a resource consent application (under part 6 of the RMA), the decision maker may have recourse to Part 2 of the RMA.1 That is, the fundamental sections of the RMA that set out the purpose of the RMA. In that regard, the RMA provides for central government direction on matters of national importance in the form of "National Policy Statements" and the "Coastal Policy Statement". The question which arose (first in the context of a plan change), is whether there are certain "environmental bottom lines" in such national policy documents and, if so, can or should a decision maker look beyond those policy statements and apply an "overall broad judgement" pursuant to Part 2 of the RMA.
In short, in the context of a plan change, recourse to Part 2 may be appropriate where there is uncertainty, incompleteness, or invalidity within the higher order (national or regional) policy documents. See: Environmental Defence Society Incorporated v The New Zealand King Salmon Co Limited  NZSC 38.
In the context of an application for resource consent, the Court has upheld that where a higher order document had already given substance to Part 2, it may not be necessary or appropriate to have recourse to Part 2. That is, the phrase "subject to Part 2" in section 104(1) did not give a direction to apply Part 2 in all cases, but only in certain circumstances. Such circumstances include where a plan has not been "competently prepared" and recourse must be had where one of the caveats in the NZSC decision above are in play. RJ Davidson Family Trust v Marlborough District Council  NZCA 316.
More recently, the Court of Appeal has held that the effect of s 30(2) RMA is that a regional council may control fisheries resources in the exercise of its s 30 RMA functions including those listed in s 30(1) (d) provided it does not do so to manage those resources for Fisheries Act 1996 purposes. Attorney-General v Trustees of the Motiti Rohe Moana Trust  NZCA 532. That is, whether a regional council may consider effects on fisheries its preparation of a regional coastal plan. The Environment Court's final determination of the content of the relevant plan is recorded in: Motiti Rohe Moana Trust & Ors v Bay of Plenty Regional Council  NZEnvC 050.
1. This is due to the wording of section 104 of the RMA which states, inter alia, "subject to Part 2".
12 Trends and predictions
12.1 How would you describe the current environment and climate change landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
The current government target of zero net emissions by 2050 means that there is large central government-led focus on enabling the necessary steps in terms of transitioning to a low-emissions economy over time. A long-term commitment to combating climate change has been indicated. Substantial changes to New Zealand's framework planning and environmental legislation has been proposed and one of the main reasons is to respond to the challenge of addressing climate change.
The Resource Management Act 1991 (RMA) is to be repealed in its entirety and replaced by three new pieces of legislation:
- the Natural and Built Environments Act (NBEA)
- the Strategic Planning Act; and
- the Managed Retreat and Climate Change Adaptation Act.
This is the biggest reform of environmental regulation and legislation in New Zealand since the passing of the RMA in 1991.
The New Zealand government was expected to have released an ‘exposure draft' of the NBEA by June 2021. However, this is now expected late July/August 2021. Consultation will then follow on all the draft bills which will be prepared in parallel.
The reforms aim to:
- simplify processes;
- provide stronger national direction;
- focus on ‘natural environmental outcomes' and less on subjective amenity matters; and
- pursue better urban design.
The role of local and function of local councils will be consolidated in relation to district and/or regional plans (currently a key feature of environmental regulation in New Zealand under the RMA).
A number of well-established legal principles, based on the RMA, will no doubt be tested following the entry into force of the new statutes. The role of mana whenua (Maori) will be enhanced and the principles of the Treaty of Waitangi (Te Tiriti) will be the subject of a national policy state on how those principles will be upheld.
Questions remain as to the practical implementation of the new legislation once it is passed into law and its interface with other legislation that is relevant to environmental decision making (eg, the Local Government Act 2002 and/or other environmental legislation as summarised above).
It is anticipated that the new acts will become law at some point in 2022, with a staged transition for implementation to follow.
13 Tips and traps
13.1 What are your top tips for smooth environmental and climate change compliance in your jurisdiction and what potential sticking points would you highlight?
For any transaction in New Zealand that involves potential property development or industries which emit air or water, we recommend that specialist legal advice be obtained and that a comprehensive environmental due diligence be carried out to inform any decision making about the proposal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.