2019 Litigation Forecast - Increased environmental enforcement on the horizon

There are three areas which we expect will be a particular focus for environmental litigation throughout 2019:

  1. Increased Resource Management Act 1991 (RMA) enforcement action by local authorities;
  2. Litigation concerning infrastructure and housing projects; and
  3. Litigation on the correct interpretation of requirements relating to the storage and use of hazardous substances. The Government’s proposed changes to the statutory regimes ruling climate change, water and urban development are likely to materialise over the next 12 months, leading to extensive business engagement and debate on what those changes mean for the future direction of New Zealand. However, the changes may be at too early a stage to give rise to much litigation within the next year – litigation to challenge or interpret any changes will be a feature of subsequent years.

Increased RMA enforcement

The Government has been clear in its expectation of local authorities being more proactive in cracking down on environmental offending. Through the Budget 2018, it proposed a new RMA Enforcement Oversight Unit (Unit) to improve the consistency, effectiveness and transparency of council enforcement decisions. At this stage it is uncertain what shape the Unit will take, however the relatively low level of funding earmarked ($3.1m over four years) suggests its scope will be narrow. The increased focus on enforcement is likely to result in greater use by local authorities of prosecutions and other RMA enforcement mechanisms (such as abatement notices and enforcement orders) in the coming year.

The increased focus on enforcement is likely to result in greater use by local authorities of prosecutions and other RMA enforcement mechanisms (such as abatement notices and enforcement orders) in the coming year.

The Ministry for the Environment has also released in-depth guidance to local authorities on RMA compliance, monitoring and enforcement in an effort to improve the consistency in how local authorities undertake those functions.

Litigation affecting infrastructure and housing projects

Auckland is to receive a $28b boost over the next 10 years to overhaul its transport infrastructure as a result of the Government and Auckland Council jointly funding the Auckland Transport Alignment Project (ATAP). As part of this, $1.8b of funding has been committed to developing rapid transit from the city to the Auckland Airport, and along the northwest corridor, in the next 10 years.

The Budget has also allocated a further $369m in capital expenditure and $234m in operational expenditure to assist in building more state and public housing. Crown Infrastructure Partners has been allocated $300m over the next 10 years for investment in water and road infrastructure to support the increased housing supply.

Many if not all of these projects will require designations and resource consents, and various other statutory authorisations (with the consequential need for public hearings and, potentially, appeals) and/or public acquisition of land (and associated rights of objection to the Environment Court).

Determining the correct interpretation of hazardous substances controls

With the change in responsibility for hazardous substances controls in workplaces from the Environmental Protection Authority to WorkSafe New Zealand now bedding in, and the relevant hazardous substance controls now largely consolidated under the Health and Safety at Work (Hazardous Substances) Regulations 2017, we are beginning to see some material differences in how the new regulator is requiring controls to be applied in practice. This has the potential to lead to litigation, either enforcement action or (potentially) judicial review to seek to obtain clarity on what is required.

More regulations and policy changes to come

There has been a flurry of discussions, consultations and hints from the Government regarding legislative changes in the environmental sector throughout 2018. Changes are beginning to be implemented, however we expect these changes will gain momentum in 2019 as the Government approaches the beginning of its third year in office.

Litigation in relation to these changes is more likely to be a feature of subsequent years, rather than something we see in 2019.

These changes are focused on three pillars in the environment sector: climate change, water and urban development.

Climate Change 

The independent Climate Change Commission and proposed Zero Carbon Bill dominates the Government’s focus on climate change. Over 15,000 submissions were received by the Ministry for the Environment on the proposals for the Bill, and it's likely that many changes are being made behind the scenes before the Bill is introduced to the House. The 2018 Budget allocated money to revamp New Zealand’s emissions trading scheme, with widespread changes announced in December 2018 by the Government. Further changes are expected to be announced in early 2019. These changes will be provided for in an amendment Act expected in the second half of 2019.

Water 

A multi-agency three waters review has begun, investigating and reporting on the allocation and quality of drinking water, storm water and waste water. This review will take into account the recommendations of the Havelock North inquiry (where legal reform was recommended) and involve extensive cooperation between councils, iwi and all stakeholders with an interest in three waters services. The Government has announced that the necessary works to improve wastewater infrastructure that discharges to freshwater across New Zealand will cost between $1.4b and $2.2b.

Urban development

The Government’s new Urban Development Authority (UDA) is poised to facilitate the redevelopment of widespread areas of land, and it may act as the regulator of private developers. The UDA, along with the establishment of an independent infrastructure entity, is likely to support the delivery of major infrastructure projects across the country.

Read the full Litigation Forecast

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