New Zealand Law Society - The Proposed Managed Retreat and Climate Change Act & Local Authorities

The Proposed Managed Retreat and Climate Change Act & Local Authorities

As a country we have now reached a time where the hard work of various government and private organisations to research and identify the effects of climate change can be pulled together to create a cohesive understanding of the diverse and significant effects of climate change. The research indicates the effects of climate change for communities may be more far reaching than anticipated; including changes to primary production, reduction in biodiversity, impacts upon lower socio-economic members of the community, increased domestic violence and mental health issues, increased vulnerability of the elderly, children, women and the disabled and destruction or disconnection for Māori with their coastal taonga and kai moana.

These effects will have a significant impact upon vulnerable people within communities and in some cases entire communities. The interface between these communities and individuals and central government is and will remain local authorities. As a result local authorities must now consider what guidance and support they require from central government and how best to plan and implement managed retreat.

In February 2021 the Government announced it would repeal the Resource Management Act 1991 (RMA), replacing it with three new Acts:

  • Natural and Built Environments Act (NBA) – to provide for land use and environmental regulation (this would be the primary replacement for the RMA).
  • Strategic Planning Act (SPA) – to integrate with other legislation relevant to development, and require long-term regional spatial strategies.
  • Climate Change Adaptation Act (CCA) – to address complex issues associated with managed retreat and funding and financing adaptation.

Currently planning and implementing a response is challenging for local authorities given the present legislative framework and funding shortages:

  1. The current legislation is restrictive as to how these matters may be addressed under the Resource Management Act 1991 (RMA), Local Government Act 2004 (LGA) and the consenting process under the Building Act 2004 (BA) and the RMA.
  2. The statutory timeframes are not in alignment spanning anywhere from 10 to 100 years.
  3. There is limited capacity with respect to funding to support local assessment of risk and to implement measures to address the risks identified.
  4. There is ongoing tension within any community that is highlighted in the consenting process between individuals resourced sufficiently to protect themselves and those that cannot or the wider interests of the collective community.

The responsibility lies with local authorities to draw together these legislative requirements and powers to create a cohesive picture for their communities. This requires intensive resource input by authorities, in depth understanding of the vulnerable and important features of its community and environment and the ability to consult and communicate clearly and effectively over and over again during this period. The focus tends towards future use and development rather than existing uses and development that are now or in the near future at immediate risk.

The proposed CCA will assist local authorities to plan for those uses and development that are currently in place and at risk whilst also considering the implication for the wider community should these come to an end or need relocating.

Purpose of Climate Change Adaption Act

Presently there is little information to glean on what the CCA will provide. It is clear however that it must work in concert with the NBA and SPA to be effective in implementing managed retreat. The purpose of the CCA has been described as primarily to address the legal and technical issues associated with managed retreat and to fund some of that work. Managed retreat is a tool which requires careful planning for progressive withdrawal from areas that will be affected by climate change. It is focused on existing uses unlike many other planning and consenting processes that focus on proposed uses. A simple example of the proposed legislative combined approach would be the planning for transition of a coastal settlement to another more resilient location. This requires some support for resettlement of the home owners and key infrastructure (the CCA) but also the identification of a new area to settle together with the implementation of key infrastructure like roads, power, water and sewerage (the NBA and SPA).

The cost of implementing managed retreat for local authorities is twofold:

  1. the cost arising from undertaking the required local research and assessment to identify those areas, uses and activities which are at risk; and
  2. the cost arising from implementing the actions to withdraw its community from these areas and provide for them elsewhere.

Local Authorities are funded by their rate paying community and any investments they may have to supplement that source. Local authorities also charge for services they provide but these are based on recovering the reasonable costs of providing those services. It is essential that an additional funding stream is provided from a central source to ensure local authorities are in a position to implement managed retreat rather than leaving authorities to raise funds from ratepayers or user pay services that are already under strain.

The adaption fund proposed in the CCA will be geared to support local efforts to respond to climate change, presumably including local research, land acquisition, compensation, liability, insurance, securing key infrastructure and resources (for example Three Waters and flood protection) the extent to which it will assist local authorities in implementing managed retreat and to what degree local authorities will be left to manage these funds remains unclear.

Some indication of what the fund may support can be gleaned from the National Adaption Plan (NPA); a plan developed by central government to determine the approach to be taken in respect of climate change including the measures and indicators required to monitor the progress and effectiveness of that approach. The NPA is developed having regard to the risks identified in the National Climate Change Risk Assessment (NCCRA). The NCCRA is a central government assessment focused on identifying and prioritising the most significant and urgent climate change effects. The details of these are yet to be understood in the context of regional effects, in particular how diversely affected and resourced regional risks will be met.

Local authorities remain best placed as the interface between central government and their communities to consider the implications of the NPA, identify the local risks and plan for a cohesive, resilient future that maintains the values and character of their communities. The benefit of establishing a central fund to assist local authorities to do so and empowering them to use these funds cannot be understated. If the intention is to provide a consistent approach that lifts the wellbeing of our population generally then the disparity in financial and personnel resourcing in addition to the regional vulnerabilities posed by diverse local landscapes, populations and economies must be addressed.

There are however many questions left to be answered including;

  1. When will the CCA be passed? It seems although its development is to be in concert with the NBA and SPA there is no date yet identified, it may be as far away as 2023.
  2. What will the fund actually provide for? Options include research, consultation, the implementation of plans.
  3. Will the fund be directly administered from a central body or provided to regions to manage as they see fit?
  4. How will the balance be struck in prioritising funding when regard is had to the diverse impacts of risk, population density and affluence of communities to name a few key factors for consideration?

Regardless of the answers yet to come, it is clear that local authorities must now plan for a future that is resilient to climate change effects by addressing past and existing development and use. The CCA and its sister legislation will be the first and vital step to enable them to do so with the corollary being that the importance of regional differences and grassroots knowledge is reflected in the administration of this fund.

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