Climate adaptation legislation - what we know

In the wake of significant floods and cyclones Gabrielle and Hale, what could have been pre-emptive adaptation planning, for many, is now post-disaster adaptation. The enormous impact severe weather events have had on New Zealand in 2023 exacerbates the need for climate change adaptation and expedites its importance.

What we know

While the Select Committee has strengthened the Natural and Built Environment Bill (NBA) to refer to the reduction in greenhouse gas emissions to assist New Zealand to meet the target set under the Climate Change Response Act 2002, the NBA and Spatial Planning Bill (SPA) are still relatively toothless instruments. With limited references to climate change in either, the bulk of any specific outcomes and climate protection mechanisms have been tied to subsidiary planning instruments and the Climate Change Adaptation Bill (CAA). Nevertheless, a few key takeaways may be drawn out of both bills to set the expectations for what is to come.

■ The NBA clearly identifies climate change as one of its primary objectives and shifts the resource management architecture from an effects-based approach to an outcomes-based approach. The eminence of climate change as an objective is promising, but without a clear view of the specific outcomes sought, it is difficult to make an accurate judgement on how well it may succeed.

■ Climate change issues aren’t specifically set out as a function and duty of territorial authorities, regional councils, and unitary authorities under the NBA. The Select Committee considers the reference to avoiding the risks arising from ‘natural hazards’ is deemed sufficient. A specific reference to climate change and adaptation would help clarify that the functions of local authorities include addressing climate change-related matters.

■ Existing land-use consents are no longer guaranteed protection. A consent can be reviewed or altered – including for the duration of the consent – if there are exceptional circumstances where it is necessary to adapt to the effects of climate change or to avoid, mitigate, or reduce risks from natural hazards. At this stage, it is unclear whether ‘exceptional circumstances’ will only arise from immediate harm, or if the term could be applied to future harm anticipated over a longer timeframe. We anticipate it will apply to harm over a longer period, to provide flexibility in responding to emerging threats.

■ The Select Committee has recommended adding references to the emissions reduction plan (ERP) and national adaptation plan (NAP) within the provisions relating to Natural and Built Environment Plans. This aligns with the position under the RMA and is particularly important given the ERP and NAP both refer to key actions relating to the RMA system.

■ The interaction between the NBA and the CAA remains unclear both on land acquisition under the Public Works Act 1981 to enable managed retreat (or for other climate-related reasons) and on compensation.

■ The main climate-change function provided by the SPA will be in the strategic directions contained in the Regional Spatial Strategies (RSS). An RSS must provide for strategic direction both on major infrastructure to address the effects of climate change and on areas appropriate for climate adaptation.

■ The relationship between RSS and CAA remains to be seen. But we anticipate spatial planning will involve consideration of two things: future development and pre-emptive areas that will be subject to relocation from high-risk natural hazard areas to low-risk areas – managed retreat.