No action on rising seas without law change

Coromandel property owners and buyers will soon get a heads-up about sea level risk. But councils say they need a law change before they can properly implement long-awaited government guidance on rising seas, reports Eloise Gibson.

People considering buying property on the Coromandel Peninsula may notice something new if they request a land information report: a pointer to an online simulator showing potential future flooding.

A Thames lawyer and campaigner, Denis Tegg, has persuaded Thames-Coromandel District Council to include a link in all future LIM reports alerting people to a Waikato Regional Council tool showing how flooding may affect properties after sea level rise.

LIMs will include a link to the flooding tool, along with a disclaimer that the council can't vouch for the accuracy of the results.

The decision comes after the council announced in February that it will consider a potential sea level rise of 1.88m by 2150 before approving any major new infrastructure, in line with the Ministry for the Environment’s new, updated guidance on rising seas.

The 1.88m will be incorporated in Thames-Coromandel District Council's 2018-2028 Long Term Plan, however, a council spokeswoman told Newsroom it won’t re-think projects that have already been consented and approved for funding. That includes the $6.5-million-dollar refurbishment of Whitianga town centre, which Waikato Regional Council's simulator shows may be flooded from the sea in future.

A more contentious, and possibly litigious, issue remains unsolved: how to incorporate the updated Ministry guidance on sea levels into planning rules applying to private housing developments, in Coromandel and elsewhere.

Councils were relieved to see the new guidance published, after they asked for government help to devise more sea-level-proof planning rules and combat legal challenges from affected property owners.

The guide was published in December.

But, while councils say it’s helpful, some are calling for a law change and/or clearer direction from the Government before they’ll feel confident applying the guidance.

More law please, say councils 

Thames-Coromandel Mayor Sandra Goudie called for greater help in February when her council announced it would adopt the 1.88m test for major infrastructure. "Central government needs to take the lead and set the direction, including providing mechanisms to help local governments financially," she said. "So much of this type of risk is directed and controlled through a national legislative framework and small councils like ours will need help."

When Newsroom asked for more details, a council spokeswoman said: “We continue to advocate for strong direction from central government as currently there is a lack of guidance from Ministry for the Environment on how their new projections should be applied …. A clear stance on what sea level rise councils should work to (rather than in the form of guidance) would provide certainty around issues relating to liability.”

The call for more and stronger guidance was supported by the president of Local Government New Zealand, the body representing councils. As Mayor of Dunedin, Dave Cull is also in charge of arguably New Zealand’s most at-risk city from sea flooding.

Cull says the Government needs to legislate if councils are going to succeed at incorporating sea level guidance in planning rules. Last year, his organisation joined several individual councils in lobbying the Environment Ministry to release the guidelines, after they were held up for a year, partly by Ministers’ fears of over-zealous application by councils.

Cull says the release of the guidance is very positive but on its own it’s too weak to allow councils to prepare well.

“The guidance has come out late but it is still very welcome. But I would agree [with Goudie] that there’s more needed, more guidance on how to use the guidance if you like. There’s still a lot of thinking and decision-making to be done about developing clear adaptation plans. We still need clarity around roles and responsibilities, including fiscal responsibility. If we have to retreat, who pays …. these are unanswered questions at the moment,” he says.

The Whitianga coastline, close to the town centre, which is set to get a $6.5 million refurbishment despite predictions the area will flood. Photo: Joe Dowling

“The next thing we need is a legal framework that supports councils to make tough planning and adaptation decisions, whether it’s around what you have to do with an existing development or how you deal with proposed developments. At the moment, in the absence of a really good, robust legal framework, councils are still at risk of litigation on behalf of developers or appeals to the Environment Court that can overturn really sound and prudent council decision-making,” says Cull. “It’s even more problematic when the house has been there for quite some time and the council moves to include hazard information on the LIM, they are really at risk of litigation from disgruntled homeowners. We need some legislative change.”

Cull says the Government needs to remove councils’ discretion about whether to act. “So that we’re not just allowed to take into account coastal hazard – we are required to.” And while he acknowledges that, arguably, legal instruments like the New Zealand Coastal Policy Statement already require councils to do this, he says they aren’t working. “Regardless of how it’s expressed it is clearly not strongly expressed enough because it can be too easily challenged. For whatever reason it’s not robust enough,” says Cull.

LIM battle

Kapiti and Christchurch councils faced challenges to their scientific evidence when they added sea level warnings to LIMs, in 2013 and 2015, respectively. When Kapiti placed an intentionally cautious warning line on people’s LIMs, local landowners challenged it through a judicial review in the High Court. The council then reconsidered whether the risk maps it was using were sufficiently scientifically robust, and withdrew the warnings.

The strategy recommended in the new guidelines is for councils to consult with their communities more thoroughly before taking steps affecting properties, like altering planning rules. But once the consultation is done, and a decision has been made, councils needs to be empowered to enforce it, says Cull.

Right now there seems no immediate prospect of development rules changing. Meanwhile, new developments are happening. Last year Newsroom reported that new developments, each involving dozens or hundreds of homes, were going ahead in the Coromandel after considering between 0.5m and 1m of sea level rise, a low level compared with what was then proposed in the guidance.

It’s still unclear how big a development needs to be before the more conservative/higher sea level consideration suggested in the guidance applies - in other words, how many homes are needed before a development goes from being considered a minor “infill” proposal to a major “greenfields” development. The distinction matters, because the guidance says that major new “greenfield” developments should be placed well away from the risk zone, and tested against the higher end of the range of sea level estimates (which is where the 1.88m comes in).

In the Coromandel the new LIM notes won’t contain any information specific to a property; they will simply include a pointer and a web link to the regional council flooding simulator, should people want to use it.

Tegg won the concession after successfully poking holes in the external legal advice that the council had received from law firm Brookfields. Brookfields had concluded there was no need to include any information about the regional council tool on LIMs because future coastal erosion was already covered on the district’s planning maps.

Brookfields acknowledged the existence of the regional council flooding tool was the kind of hazard information the council was required to disclose, even though the district council had not designed the tool, and the risks it displayed weren’t certain. But the law firm said the council didn’t need to refer to the tool, because the district planning maps would already have alerted people to the risks of flooding.

On the basis of that legal advice, the council decided not to act.

But, after consulting the Ombudsman, Tegg wrote to the council pointing out that only river flooding and coastal erosion were included on its planning maps. There was no reference to inundation from the sea, which affected different parts of the district, meaning people in places such as the Matarangi and Whangapoua estuaries, Whitianga township and swathes of Tairua could be unaware that their properties might be at risk of flooding with seawater unless they saw the regional council coastal inundation tool.

This week, the council told a now-pleased Tegg that future LIMs will include a pointer to the regional council’s online tool, where curious potential buyers and homeowners can add up to 2m of sea level rise to today’s maximum storm surges and see on a map what could happen. According to the council the "notation will appear under the heading "General Planning and Property Information: Other agencies" in future LIM reports and will tell people that “Waikato Regional Council holds and administers a ‘Coastal Inundation Tool’ for the Waikato region….to attempt to identify those areas in the Waikato region that may be subject to coastal inundation.”

It will include the disclaimer that: The Thames-Coromandel District Council makes no representation as to the completeness, accuracy or otherwise of any information or data provided by the Coastal Inundation Tool, or its use. The pointer will also link to the regional council's own disclaimer, explaining, in essence, that the simulation is a rough guide only.

The district council also confirmed the move to Newsroom.

Tegg said the council’s change of heart was “very welcome.”

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