The mosaic of national policy statements is set to increase further with the release of the proposed National Policy Statement for Natural Hazard Decision-making (“NPS-NHD”). The NPS-NHD is the first of two stages in a phased work programme aimed at improving the management of natural hazard risks. The second stage involves comprehensive National Direction for National Hazards, which is to be developed over the next one-to-two years.
The NPS-NHD is open for submissions until 20 November 2023. The Ministry for the Environment anticipates that further Cabinet decisions and a final NPS-NHD will be issued later this year. That seems overly optimistic particularly if the election results in a change of government and priorities in the first 100 days.
The NPS-NHD has a single objective:
“That the risks from natural hazards to people, communities, the environment, property, and infrastructure, and on the ability of communities to quickly recover after natural hazard events, are minimised.”
Poor drafting has been a feature of recent national policies statements and that continues with the NPS-NHD and the objective should be recast to improve clarity.
Beyond that, the objective sets an admirable goal but one which all councils should have already been cognisant of given it is a function of all territorial authorities under s31 of the RMA to control any actual or potential effects of the use, development, or protection of land for the purpose of the avoidance or mitigation of natural hazards.
Seven policies underpin the objective and are the ‘engine room’ of the NPS-NHD. The policies are directive in nature and, in some instances, are akin to rules. These include:
When making planning decisions, decision-makers are to determine the level of natural hazard risk - high, moderate, or low. Given a ‘planning decision’ is defined to include a decision on “a resource consent”, some refinement to the policy is needed to avoid every resource consent applicant for a “new development” being required to undertake an assessment when there may be little need to do so or a more efficient macro basis to determine risk (Policy 1).
When determining natural hazard risk, decision-makers are to consider the likelihood and the consequences of a natural hazard event occurring, tolerance to a natural hazard event, including the willingness and capability of those who are subject to the risk to bear the risk of that natural hazard (including its cost) and any indirect risks associated with it. Again, some materiality or direction when this is required would be helpful to avoid the cost of unnecessary assessments (Policy 2).
Planning decisions must ensure that in areas of high natural hazard risk, new development is avoided unless the level of risk is reduced to at least a tolerable level. What is tolerable is left is for others to define. The policy also provides for rather torturous alternative pathway provided that the new development is not a new hazard-sensitive development (e.g. residential), there is a functional or operational need for the new development to be located in the area of high natural hazard risk with no practicable alternative locations for the new development and the risk is reduced to as low as reasonably practicable. In areas of moderate natural hazard risk, mitigation measures are to be taken to reduce natural hazard risk to new development as low as reasonably practicable and in areas of low natural hazard risk, new development is enabled (Policy 5).
The most effective natural hazard mitigation measures are adopted to reduce natural hazard risk over the life of any proposed new development, provided the natural hazard mitigation measures do not exacerbate natural hazard risks in other areas. Where possible nature-based solutions are preferred over hard-engineering solutions and comprehensive area-wide measures are preferred over site-specific solutions (Policy 6).
Natural hazard risk must be a matter of control for any new development that is a controlled activity and a matter of discretion for any new development that is a restricted discretionary activity (Policy 4).
Curiously, the implementation part of the NPS-NHD is devoid of direction and detail, and simply notes that the only two matters contained within the implementation part of the NPS-NHD are non-exhaustive. The two matters relate to best information requirements and an acknowledgement that natural hazard risk is a matter that must be discussed with tangata whenua. Given the purpose of the NPS-NHD, the implementation section is poorly lacking.
It is worth noting the following definitions proposed by the NPS-NHD:
“New hazard-sensitive development” means a new development relating to residential dwellings, marae, education, community, emergency and health facilities. New development is broadly defined to capture both new buildings/structures and infrastructure and their extension/replacement.
A “natural hazard” has the RMA definition but also includes natural hazards arising from the effects of climate change. It is not immediately obvious what that adds to the RMA definition.
Definitions of high and moderate natural hazard risk relate to whether a risk is “intolerable” or “not intolerable”, however what is “intolerable” or “not intolerable” is not provided but would clearly be helpful in practice.
Quite remarkable and highly questionable, the NPS-NHD is excluded from the preparation of intensification planning instruments. Some councils like Auckland Council have placed their IPI process on-hold whilst it works through the consequences of natural hazards – in Auckland’s case the January floods. Timing and expediency appear to have won over sound resource and risk management practice.
The proposed NPS-NHD is available here.
Please get in touch with one of the team if you would like to know more or are interested in making a submission on the NPS-NHD.