Water Services Act 2021 set to transform water safety in Aotearoa

Parliament has passed the Water Services Bill, which received royal assent on 4 October 2021. The aim of the Water Services Act 2021 (WSA) is to implement the Government’s comprehensive reforms to the regulatory system for drinking water and to improve the regulation and performance of wastewater and stormwater networks. It repeals and replaces Part 2A of the Health Act 1956 and commences 4 October 2023, or earlier by Order in Council.

The main purpose of the WSA is to ensure that drinking water suppliers provide safe drinking water to consumers by way of a drinking water regulatory framework that is consistent with internationally accepted best practice. The WSA’s additional purposes are to:

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Native Title and Freshwater Rights

Te Whānau a Kai Trust v Gisborne District Council [2021] NZEnvC 115

This appeal raised significant questions of law concerning the jurisdiction of the Environment Court and whether native title extends to freshwater.

Te Whānau a Kai appealed the Gisborne District Council’s decision in respect of submissions on the proposed Gisborne Regional Freshwater Plan (Freshwater Plan). The appeal sought amendments to the Freshwater Plan to recognise the customary (including proprietary) interests of Te Whānau a Kai in freshwater within its rohe, and by so doing, that its interests in those waters be taken into account in all decision making. The key issues and the Court’s findings are summarised below.

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Welcome Guidance from the High Court on Development Contribution Policies

As Councils throughout New Zealand are acutely aware, it is a constant struggle to find sufficient funding to support development, particularly in greenfields areas where there is either no, or insufficient, existing infrastructure. Generally, Councils must construct a patchwork quilt of funding sources in order to provide important services, including requiring payments from developers. One such way that this is achieved is via development contributions. Development contributions are an important but complex funding tool available to Councils via the Local Government Act 2002 (LGA). They can only be required to be paid in accordance with a development contributions policy (DCP), which must be set and amended in accordance with the (often not entirely clear) requirements of the LGA. Until recently, there has been little guidance from the Courts regarding the implementation of DCPs since the 2008 decision in Neil Construction Ltd v North Shore City Council [2008] NZRMA 275.

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Two-month extensions for Annual Reporting and Audit Time Frames

The Annual Reporting and Audit Time Frames Extensions Legislation Bill (the Bill) has been passed by the House and will come into force when it receives royal assent. The Bill amends the Crown Entities Act 2004 (CEA) and the Local Government Act 2002 (LGA02) by extending, for the 2020/21 and 2021/22 financial years, the time frames provided in relation to audits of Crown entities, with end-of-year balance dates of 30 June, and the annual reporting requirements of local authorities and council-controlled organisations.

 Crown entities

Crown entities, under the CEA, must provide their audit reports to the Auditor-General within 3 months after the end of the financial year. This deadline is extended by the Bill for Crown entities (and organisations subject to provisions of the CEA), with end-of-year balance dates of 30 June. For the 2020/21 and 2021/22 financial years their audit reports must be provided to the Auditor-General by the close of 31 December.

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First exposure draft of the replacement to the Resource Management Act released

The Government has released its long awaited first exposure draft of the Natural and Built Environments Act (NBA), the proposed replacement to the Resource Management Act 1991 (RMA) as part of its wider reforms touted as a ‘once-in-a-generation’ opportunity.

This release follows the Government’s February 2021 announcement to reform New Zealand’s resource management system by repealing the RMA and replacing it, in addition to the NBA, with:

• Strategic Planning Act (SPA) to integrate with other legislation relevant to development, and require long-term regional spatial strategies; and

• Climate Change Adaptation Act (CAA) to address complex legal and technical issues associated with managed retreat and funding and financing adaptation.

This article outlines the exposure draft of the NBA and the process to follow.

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High Court gives Proposed East-West Link the Green Light

Royal Forest and Bird Protection of New Zealand Inc v New Zealand Transport Agency [2021] NZHC 390

In February 2017, the New Zealand Transport Agency (NZTA) formally notified its proposal to construct, operate and maintain a new four-lane arterial road to connect State Highway 20 in Onehunga with State Highway 1 in Penrose / Mt Wellington -  commonly referred to as the proposed East-West Link (EWL). The land subject to the EWL is ecologically significant, particularly as a habitat for sea birds, and the activity, as a whole, was considered to be non-complying.

A Board appointed by the Ministers for the Environment approved the resource consent applications and Notices of Requirement, but the  decision was appealed by the Royal Forest and Bird Protection Society of New Zealand (RFB) and Ngāti Whātua Ōrakei Whai Maia Limited (Ngāti Whātua) with the support of Te Kawerau Iwi Tribal Authority, (collectively referred to as the Appellants).

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