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University of Otago Law Theses and Dissertations |
Last Updated: 25 September 2023
MANAGED RETREAT AT THE COAST – THE STRUGGLES OF RISING TIDES, SCIENTIFIC UNCERTAINTY AND UNSETTLED COMPENSATION
Imogene Jones
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago, Dunedin, New Zealand – Te Whare Wānanga o Ōtākou
October 2022
Acknowledgements
Firstly, I must give a massive thank you to my supervisor Ceri Warnock. You have been so patient with me this year. Your extra encouragement when I needed to dig in my heels and complete this dissertation was very much appreciated.
Thank you also to Mum and Dad. It’s not easy... but your advice has always been so vital when I need to cut through the nonsense!
Thank you to all my amazing flatmates and friends who have been with me since the beginning. Especially you Hannah Cross. None of you go unnoticed. If any of you ever read this dissertation, I seriously congratulate you.
I am also grateful to Ōtepoti for housing me over the last five years. Today I feel sentimental and sad to be leaving. But onwards and upwards we go...
Table of Contents
ABREVIATIONS:
CCAA: Climate Change Adaptation Act CPW: Coastal Protection Works
NBEA: National Built Environments Act PWA: Public Works Act
RMA: Resource Management Act
SCRCA: Soil Conservation and Rivers Control Act
Introduction
Managed retreat can be described as an adaptative strategy by which governments and communities plan and execute the movement of building and other assets deliberately away from zones at risk from natural or climate-induced hazards.1 The goal of enacting managed retreat legislation, is to plan for permanent pre-emptive retreat before these hazards can cause damage, rather than relying on a purely reactive approach.2 Managed retreat is an issue that is likely to be treated differently within the law based on a number of different contextual considerations. For example, natural disasters intensified by climate change can occur through several different mediums. Forest fires, inland flooding, hurricanes, earthquakes, tsunamis, heat waves and drought are all events that have the potential to make areas of our geographical landscape in New Zealand uninhabitable.3 They create the potential necessity for retreat and relocation. However, each different environmental event has vastly different impacts on human life. The impact of some natural disasters is short lived and do not create permanent changes to landscapes. In the wake of these events, the priority has usually been to rebuild, in the reassurance that such a disaster will not happen again for another century, - or at least for many decades to come. With the return period for disasters increasing, this presumption is now being tested.4
This research considers the most common example of retreat grappled with in the literature. In the context of managed retreat on the coastline, I am focusing this dissertation on the movement of assets and buildings away from the encroaching high tide. Specifically, this dissertation considers compensation solely for homeowner’s, rather than commercial properties. This topic is complex, multi-faceted and interdisciplinary. The term ‘managed retreat’ has also gathered
1 Iain White, Bruce Glavovic and Christina Hanna Managed retreat in New Zealand: revealing the terminology, approaches and direction of local planning instruments. Report for the National Science Challenge: Resilience to Nature's Challenges. (University of Waikato, New Zealand, 2017)
2 Judy Lawrence, Jonathan Boston, Robert Bell, Sam Olufson, Rick Kool, Matthew Hardcastle, and Adolf StroombergenImplementing Pre-Emptive Managed Retreat: Constraints and Novel Insights. 6:66–80 (2020) 3 MCDEM National Hazardscape Report. (Officials’ Committee for Domestic and External Security Coordination Department of the Prime Minister and Cabinet, 2007)
4 World Meteorological Organization "Weather-related disasters increase over past 50 years, causing more damage but fewer deaths " (2021) <https://public.wmo.int/en/media/press-release/weather-related-disasters- increase-over-past-50-years-causing-more-damage-fewer>
controversy surrounding it in the media.5 For these reasons, I found researching this topic fascinating. I channelled my energy into looking at existing use rights, liability, and compensation in more detail as these appeared to be the most difficult issues. As many ideas overlap, I then weaved this dissertation in an order that made coherent sense to me. Only by the conclusion, should they paint my full hypotheses.
Resource Management Law in New Zealand is currently undergoing its largest reforms since the introduction of the Resource Management Act in 1991 (RMA).6 That very Act is being repealed, and by the end of 2022 our current government intends to reshape the entire system through the release of the new Natural and Built Environments Act (NBEA) and Strategic Planning Act Bills set to pass in 2023.7 The Climate Adaptation Bill will also be introduced to Parliament by the end of 2023, dealing specifically with the process of managed retreat.
The research aims to explore questions, considerations, and gaps in the literature relevant to the application of ‘managed retreat’ in our current and future resource management system. This dissertation considers when the costs of managed retreat might fall on local government, as well as considering the potential in law to compensate for implementing adaptation strategies that introduce land-use controls. There has been consensus among the commentators that some form of public compensation is necessary, likely through a central fund to help finance relocation and retreat.8 Whilst the question of compensation considers who pays and on what basis; it necessarily has a policy focus that must be informed by the current avenues available to compensate homeowners affected by adaptation strategies.
5 Anna Mulkern "Managed retreat: Unpopular, expensive and not going away" (11 May 2021)
<https://www.eenews.net/articles/managed-retreat-unpopular-expensive-and-not-going-away/>
6 Ministry for the Environment "Resource management system reform" (2022)
<https://environment.govt.nz/what-government-is-doing/areas-of-work/rma/resource-management-system- reform/>
7 Ministry for the Environment Draft national adaptation plan. (April 2022) at 31.
8 Jonathan Boston and Judy Lawrence Climate Change Adaptation Funding Instruments (WP17-05, Institute for Governance and Policy Studies, 2017) ; and Report of the Resource Management Review Panel New Directions for Resource Management in New Zealand [RMA Report] (Ministry for the Environment, June 2020)
Specifically, this research focuses on understanding managed retreat as a concept, homeowners’ perspective, and where government liability to compensate falls under our current resource management system.
In chapter one, I introduce the concept of managed retreat, explore case studies of retreat at the coast, and describe some of the most pressing legal issues concerned with managed retreat. I explain why I have narrowed my focus to compensation and local liability specifically.
Chapter two introduces managed retreat from the perspective of the homeowner. I describe the importance of ‘public buy-in’ for any policy choices that legislatures choose to make and consider how experts communicate risk and uncertainty.
Chapter three focuses on managed retreat from the perspective of government. If we wish to minimize or reduce our government’s fiscal responsibility to pay for all aspects of adaptation, it is important to identify their current legal obligations to compensate. I explore this issue in the context of extinguishing private property rights and distinguish between how the law has treated ‘new developments’ versus ‘existing developments’ in the context of compensation. I also consider the issue of maintaining coastal protection works.
Furthermore, in chapter four I unpack the concept of the LIM Report. I consider how the LIM may need to be reformed to be better utilised as a strategy to communicate risk, reduce moral hazard and achieve equitable burden sharing.
Finally, chapter five pulls all previous considerations together. I hypothesize that while public compensation must be high in the wake of the Climate Change Adaptation Act (CCAA), this could be decreased over time by implementing a process of regulatory creep in the legislation. As public buy-in increases over time, public compensation can gradually decrease in response. While it may be appealing to tailor each managed retreat strategy on a case-by-case basis, I argue that some level of certainty will be vital for homeowners.
1. Understanding Managed Retreat
1.1. MOVING FROM MITIGATION TO ADAPTATION
The most recent IPCC report released in April 2022 has unfortunately confirmed that the state of the earth’s environment is in a worse predicament than previously predicted. Earth’s temperatures have now reached 1.1 degrees Celsius above pre-industrial levels (based on the years 1850-1900) and we are on track to exceed the crucial 1.5°C Paris ‘target’9 before the year 2030.10 Warmer temperatures consequentially result in melting ice caps and rising sea levels, which have now risen approximately 24 centimetres globally since 1880 and are accelerating.11 Due to these concerns, the IPCC has promoted a shift from primarily using ‘mitigation’ tools to respond to climate change, towards also embracing ‘adaptation’ strategies and combining the two in complementarity wherever possible.12
Mitigation strategies focus on the root cause of climate change effects, such as reducing greenhouse gas emissions to slow the progression of temperature rises globally.13 In contrast, adaptation tools are used to combat the effects of climate change and emissions. At the coast, hazard adaptation may constitute the building of sea walls that act as protective buffers for
9 Conference of the Parties, Adoption of the Paris Agreement, U.N. Doc. FCCC/CP/2015/L.9/Rev/1 (Dec. 12, 2015). See Article 2(a) that establishes the goal to limit the earth’s temperature to 1.5°C above pre-industrial levels to “significantly reduce the risks and impacts of climate change.”
IPCC 2022: Summary for Policy Makers. (ed) In: Climate Change 2022: Impacts, Adaptation,
and Vulnerability. Working Group II contribution to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (In Press ed, Cambridge University Press )
11 Global sea level trends calculated by Australia’s Commonwealth Scientific and Industrial Research Organization and the National Oceanic and Atmospheric Administration. See: United States Environmental Protection Agency "Climate Change Indicators: Sea Level " (2021) <www.epa.gov/climate-indicators/climate- change-indicators-sea-level#ref4>
12 R.J.T. Klein, S. Huq, F. Denton, T.E. Downing, R.G. Richels, J.B. Robinson, F.L. Toth "Inter-relationships between adaptation and mitigation " in O.F. Canziani M.L. Parry, J.P. Palutikof, P.J. van der Linden and C.E. Hanson (ed) Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, Cambridge, UK, 2007)
13 Tony Matthews Climate Change Adaptation in Urban Systems: Strategies for Planning Regimes (Griffith University 2011) at 3
coastal assets, offering temporary relief from rising seas.14 Adaptation aims to positively protect local communities through creating more resilient and safer urban and coastal spaces.15
New Zealand is no stranger to applying adaptation principles in the context of the New Zealand Coastal Policy Statement (NZCPS).16 A common example is the use of the adaptive management as part of a precautionary approach in the context of resource consenting and uncertain environmental effects.17 The addition of 6(h) to the RMA in the 2017 amendments, classifying the ‘management of significant risks from natural hazards’ as a matter of national importance, signals the shift we are seeing in this space.18
The Climate Change Response (Zero Carbon) Amendment Act 2019 enacted policies to better reflect the global need to move towards adaptation. It provided for the creation of the National Climate Change Risk Assessment (NCCRA) report, that is intended to reflect the most significant climate risks affecting New Zealand over the next six years.19 The NCCRA was released in 2020, and the issues highlighted were to offer guidance for creating the Climate Adaptation Plan, released in August 2022.20 Ten of the most of significant risks (rated by the urgency of the need to address them) included: ‘risks to buildings due to extreme weather events’; ‘risks to social cohesion and community wellbeing from displacement’ created by climate change impacts, and ‘risks to governments from economic costs associated with lost productivity, disaster relief expenditure and unfunded contingent liabilities due to extreme events and ongoing, gradual changes’.21
14 B. Hayward "Nowhere Far From the Sea: Political Challenges of Coastal Adaptation To Climate Change in New Zealand." (2008) 60 Political Science 47 at 52
15 Matthews, above n 13, at 5.
16 New Zealand Coastal Policy Statement 2010
17 Sustain Our Sounds Inc v New Zealand King Salmon Company Ltd [2014] NZSC 40, see [107] and [129] –
[140]
18 Simpson Grierson Councils’ Ability to Limit Development in Natural Hazard Areas (Local Government New Zealand Feb 2018) 29 at [7]
19 Ministry for the Environment National Climate Change Risk Assessment for Aotearoa New Zealand: Main report – Arotakenga Tūraru mō te Huringa Āhuarangi o Āotearoa: Pūrongo whakatōpū. (August 2020)
20 Ministry for the Environment Aotearoa New Zealand’s first national adaptation plan (Ministry for the
Environment, 2022)
21 Ministry for the Environment, above n 19. See table 1.
This report confirms that much of the worst impacts of climate change are to our built environments, and the flow on consequences and effects it has on our economy, individuals and communities. The draft Adaptation Plan, reflected the need to address these concerns by making managed retreat a topic of priority.22 Creating this legislative framework is vital to prevent exacerbating existing social inequalities, especially where more than 675,000 people in New Zealand live in flood prone areas, with this exposure continuing to increase in coming decades.23
1.2. PRE-EMPTIVE VS REACTIVE RETREAT
Pre-emptive retreat requires the movement of assets away from hazards before an event or disaster occurs that destroys these assets. Reactive retreat is the relocation of assets and people once the intolerable damage has already occurred.24 As managed retreat is an adaptation strategy, it can be applied to a wide variety of problems and environments, and therefore the way in which it is ‘managed’ is also inherently contextual. One of the strongest distinctions can be made between reactive retreat response to disasters, or pre-emptive strategies that respond to damage expected through risk probabilities. I explain the distinctions below using case studies.
The ‘Awatarariki Managed Retreat Programme’25 as coined by the Whakatāne District Council, has both pre-emptive and reactive retreat elements. It is considered the ‘test case’ example of retreat in New Zealand.26 In 2005, intense rainfall caused debris flows that destroyed 27 homes and damaged 87 other properties along the Awatarariki fan head that sits between the beach and Matatā main township.27 Initial assessments after the disaster led engineering experts to approve the building of mitigation measures, specifically a debris dam. However, seven years
22 Ministry for the Environment, above n 7; see also: Ministry for the Environment Adapt and thrive: Building a climate-resilient New Zealand. (April 2022)
23See: R Paulik, Craig, H and Collins, D. New Zealand Fluvial and Pluvial Flood Exposure. (NIWA, 2019) – This was data from 2013, calculated from the number of “usual residents” exposed to flood risks.
24 Gibbs M.T. "Why is coastal retreat so hard to implement? Understanding the political risk of coastal adaptation pathways" (2016) 130 Ocean and Coastal Management 107
25 Whakatane District Council "Awatarariki Managed Retreat Programme " (2020)
<https://www.whakatane.govt.nz/residents/awatarariki-managed-retreat-programme>
26 Christina Hanna, Iain White and Bruce Glavovic "The Uncertainty Contagion: Revealing the Interrelated, Cascading Uncertainties of Managed Retreat. " (2020) 12(2) Sustainability 736
27 Awatarariki Residents Incorp v Bay of Plenty Regional Council and Whakatane District Council [2020] NZEnvC 215 at [3]
later the experts backtracked, realising this option was no longer viable. Finally, in 2019, the Council decided to move ahead with managed retreat due to the high risks that this now recalculated one in 40–80-year debris event would happen again soon, putting lives in the area at risk.28 At this point of time, most of the affected homeowners had rebuilt, roughly only ten years earlier.29 To secure homeowner support, the local Council decided to provide a financial incentive, and created a ‘voluntary’ property buyout system that had to be agreed to by a particular date deadline.30 Once that deadline was reached, Whakatāne District Council and the regional Bay of Plenty Council went ahead with making complimentary plan changes extinguishing the existing use rights of those within the dangerous ‘red’ zone.31 This had the effect of leaving those who did not ‘voluntarily’ sell their property to the Council, without compensation, and without the right to remain on their land. The red zone was to be converted from a residential zone to a ‘coastal protection zone’ from March 2021 per the District Plan.32
This example shows what could have been a simpler case of reactive retreat initiated directly after the disaster, becoming a social, financial, and political challenge. Scientific uncertainty, especially around assessing future risks and disaster probabilities, created limited options for those within the high-risk red zone. As managed retreat has been treated as a last resort option by Councils, it’s potential to reduce negative outcomes for homeowners if completed efficiently and promptly did not eventuate.33 The disaster led to a drawn-out process in which more stress was felt by those affected.34 However, the managed retreat programme went ahead regardless of public opinion due to the nature of the hazard risks. The Council did not want to carry liability for any potentially devastating effects of future hazard events, and the decision to make the plan changes was compatible with the Building Act 2004 (BA). 35 The Building Consent Authority cannot grant resource consents where buildings are in danger from natural hazards that creates
29 Hanna, White, and Glavovic, above n 26, at 11.
30 See more: Whakatane District Council, above n 25.
31 Report and Decisions of the Hearing Commissioners IN THE MATTER of the Resource Management Act 1991 AND IN THE MATTER of Proposed Plan Change 1 to the Whakatāne District Plan Proposed Plan Change 17 to the Bay of Plenty Regional Natural Resources Plan (2020) at [34] and [84] – [89]
32 Awatarariki Residents Incorp v Bay of Plenty Regional Council and Whakatane District Council above n 27 at
33 Boston and Lawrence, above n 8, at 77.
34 Zac Fleming "‘This is going to set a precedent’ - Council applying to evict homeowners " (2017 )
<https://www.rnz.co.nz/national/programmes/checkpoint/audio/201851000/this-is-going-to-set-a-precedent- council-applying-to-evict-homeowners>
35 See: Building Act 2004 s 71 – 74. See also, s 121: meaning of ‘dangerous building’.
a ‘high risk’ of loss of life, so any future resource consents would be in breach of the BA.36 Fifteen residents across nine properties took the Council to the Environment Court, alleging that extinguishing their existing use rights was ‘unfair and unreasonable’ under s 85 of the RMA.37 This process caused delays, but approximately six weeks out from the hearing data, the appeal was settled.38 After much debate, all but one remaining property owner agreed to the payout. Only one family, the Whalley’s, sought a one-year extension from the Environment Court, and this final family moved out of the red zone in March 2022.39 By the end of this saga, retreat was emphasised for the need to protect homeowners against future risk of disaster. Both reactive and pre-emptive elements were therefore present at different stages of the problem.
Other examples of managed retreat, fall within the classic example of a coastal ‘pre-emptive’ strategy problem, due to the risks of rising seas and coastal erosion. Notable examples include the challenges faced by Port Waikato at Sunset beach, Haumoana within the Hawkes Bay Coast, and Wainui beach in Gisborne.40
In the latter example, Wainui has undergone coastal protection works (CPW) since the 1920s, with the Council taking responsibility for the upkeep of sea walls and protective buffers. However, when the frequency with which these mitigation measures must be replaced continued to rise, along with costs, the Council resolved to discontinue those beach works in 1992. This was met with great opposition from residents, but it was upheld in Falkner that the common law right to the protection of property rights from the sea can be, and was, overruled by statute, specifically by the RMA.41 This included any ‘right’ for homeowners to undergo those protection works on their own accord. Despite winning in the High Court, the public pressure was too much, and the Council continue these CPW today.42 It is only now, after a number of storms continue to ravage the coastline, that the Council is considering managed
36 Hearing Commissioners, above n 31, at [131] – [137].
37 Awatarariki Residents Incorp v Bay of Plenty Regional Council and Whakatane District Council above n 27 at [13]
39 Macdonald N "Sad final farewares for Matata managed retreat fighters " (2022)
<https://www.stuff.co.nz/national/128203042/sad-final-farewells-for-matat-managed-retreat-fighters>
40 See Port Waikato Example: GHD Sunset Beach (Okarahia) Preferred Options for Managed Retreat (Waikato District Council 2016)
41 Falkner v Gisborne District Council, above n 41, at 632-633.
42 Gisborne District Council Wainui Beach Erosion Management Strategy. (2014) at 9-12
retreat options again.43 Importantly, Wainui is considered a surf break of ‘national significance’, providing stronger incentive to protect the beach ahead of private property. 44 A strategy for the next 100 years is beginning to take shape, but guidance from the CCAA will be vital to ensure progress on these matters.45
In Haumoana, the urgency of the problem is much greater, with storm surges having eroded homes to the point that some have been abandoned, others damaged immensely or swept into the sea, reducing the value of their properties.46 However, the saga has been ongoing since the 1970s, with homeowners continuing to call for seawalls and some taking defences into their own hands illegally. The Hastings District Council had agreed to protect 18 properties (the H18) from coastal erosion in the area, as long as all the residents agreed to pay 85% of the total costs across five years, the other 15% on the Council.47 When unanimous consent from homeowners could not be reached the Council had to put the 3.45-million-dollar project on hold.48 Whilst a strategy to combat the issue is now underway, progress is slow as there is contention as to how to proceed on every minor detail. For example, at one stage Raynor Asher KC was asked for recommendations as to whether coastal management (and therefore liability to pay) was a District Council or Regional Council responsibility.49 Continued delays have meant some property owners have moved on without compensation whilst others miss out on mitigation measures.
Legislation is needed to prevent further retreat being managed in an ad hoc manner, replacing this with clear, certain, and directive provisions that will enable councils and homeowners to prepare for climate change adaptation effectively.50 Councillors are waiting for national
43 Gilbertson GM "‘Managed retreat’ still an option for Gisborne beach houses hit by large waves " (2019)
<https://www.stuff.co.nz/dominion-post/news/115677599/managed-retreat-still-an-option-for-gisborne-beach- houses-hit-by-large-waves>
44 See: New Zealand Coastal Policy Statement 2010, Policy 16 and Schedule 1
45 The Wainui Erosion Strategy considers the medium term (20-30 years) and the long term (100 years) for different sections of the beach, and includes trigger points for the implimentation of different strategies to combat coastal erosion
46 K Newman "Cape View Protection (part 1) - Lost homes have history " (2022)
<www.savethecapecoast.org.nz/single-post/cape-view-protection-part-1-lost-homes-have-history>
47 Craig Cameron "Report to Council: Haumoana Seawall Protection - H18 " (Paper presented at the Hastings
District Council: Council Meeting, 2022) at 1.2
49 Raynor Asher Review and Recommendations for the clifton to tangoio coastal hazard strategy joint committee
(HBRC, 2021)
50 Hanna, White and Glavovic, above n 26, at 9.
direction through the CCAA’s substance, and many have chosen to ‘sit on their hands’ in the process.51 The CCAA has the potential to solve many of these complex issues where careful consideration is made of the legal options realistic to the NZ context. The focus must be on pre- emptive retreat, to reduce exposing communities to hazard risks, and reduce the complications and inequities that uncertainty of strategy creates.
1.3. DETERMINING THE LEGAL ISSUES
Highlighting the examples above introduces the reader to some of the issues that must be contemplated in creating managed retreat legislation – however, those examples are only a small part of the puzzle. The whole Resource Management System was reviewed in 2020, by the Randerson Panel.52 The Report highlighted several different issues that the Panel recommended be dealt with through the CCAA legislation, including: the review of s 85 and existing use rights; issues of national direction; responsibilities and liabilities; funding mechanisms, and compensation.53 This section will briefly survey many of the other contentious legal issues within this subject field to show the scope and complexity of coastal adaptation issues.
The inconsistency and infrequency of terms referring to managed retreat is the most basic problem found within the RMA. Only half of RMA planning instruments refer to ‘managed retreat’, and often many different terms are used, such as ‘relocation’, ‘managed realignment’, ‘withdraw’, ‘soft engineering’ and so on.54 They are also primarily found in instruments that apply to coastal hazards alone (i.e., the NZCPS), and these terms are most often never defined further. It is no wonder that managed retreat has been referred to as a ‘black box’, a complex conundrum with very little yet understood, and with little guidance on how it should be applied.55 Even with the establishment of the CCAA on the horizon, the preference to use alternative terms to ‘managed retreat’ continues, likely because of the negative connation’s that
51 Hanna, White and Glavovic, above n 26.
52 Randerson Panel, above n 8.
53 Catherine Iorns "Reform of the Rules for the Rising Seas" (2021) 52 Vict. U. Wellington L. Rev. 837
54 White, Glavovic and Hanna, above n 1, at 3.
55 Lawrence J. Owen S., Ryan E., Kench P., Bell R., Rennie H., Blackett P., and Schneider P. "Anticipating
Staged Managed Retreat at the coastal margins.” ( 2018) (Coastal Management) Planning Quarterly 8
have been associated with the strategy by resistant homeowners.56 Some level of certainty, however, should be favoured. The first step in reforming the law will be defining managed retreat to ensure its purpose as a ‘precautionary’ and ‘proactive’ strategy are captured.57
National direction also needs to be clearer. There needs to be enough detail within national legislation that the subordinate planning instruments are consistent with one another, such as through homogenised hazard assessments, criteria and labels for spatial overlays and hazard zones.58 National direction could ensure planners utilise 100-year projections for the effects of climate change in strategies to better equip communities with the tools to adapt to changing environments.59 An important problem is deciding who has the responsibility to deal with natural hazards, as both regional and territorial authorities share this overlapping jurisdiction.60 As alluded to in the Hawkes Bay Coast example, there can be much confusion between whether adaption planning (and funding) should come from district or regional councils, or through collaboration.61 No councillor wants to take on the responsibility of telling homeowners they must move on from their communities and home, and bear the brunt of potential litigation and costly court action.62
This problem with litigation was also present in the Matatā case, particularly around existing use rights. Section 85 of the RMA provided homeowners with too hopeful an avenue that they
56 In July 2022, consultants Tonkin and Taylor preffered the term ‘planned retreat’ in their report for the Clifton to Tangoio Coastal Hazards Strategy joint committee: Sharpe M "Cost of retreating from Hawke’s Bay Coast put at $2 billion, but who pays is not decided " (2022) <https://www.stuff.co.nz/environment/climate- news/129249105/cost-of-retreating-from-hawkes-bay-coast-put-at-2-billion-but-who-pays-is-not-decided>
57 Taylor BM Fletcher CS, Rambaldi AN, Harman BP, Heyenga S, Ganegodage KR, Lipkin F, McAllister RRJ Costs and coasts: an empirical assessment of physical and institutional climate adaptation pathways: Final Report (NCCARF, 2013) 59 at 2.4.1 on page 13
58Hearing Commissioners, above n 31, at [36]. Each regional/territorial authority creates its own assessments for creating hazard zones. See also this discussion paper: Ministry for the Environment National Planning Standards: Zones and overlays - spatial layers in plans: Discussion paper C (2017) The new Strategic Planning Act should play a part in dealing with this issue.
59 Randerson Panel, above n 8, at [6] – [40] of chapter 6: Climate Change and Natural Hazards
60 Grace E; France-Hudson B; Kilvington M Managing existing uses in areas at high risk from natural hazards: an issues paper (GNS Science 2018) 10 p at 2.2 See also s 30 and s 31 RMA.
can prevent adaptation measures from moving ahead. Section 85(1) makes it clear that interests in land can be altered by provisions in plans, and “shall be deemed not to be taken or injuriously affected”. This means that there is no right to compensation for a regulatory taking.63 I discuss that further in chapter three. However, s 85(2) also creates an avenue to challenge plan provisions where they render an interest in land “incapable of reasonable use”. If an application to the Environment Court is made under s 85(3), this also requires an additional limb of the test be met, specifically that the provision places “an unfair and unreasonable burden” on persons interested in the land per s 85(3B).64 However, the focus is on whether the public interest (fulfilling the statutory purpose) in extinguishing the existing use rights is reasonable, rather than focusing on the homeowners property rights in isolation.65 Remedies under s 85(3A) include the prohibitory provision being repealed or modified or the local authority acquiring the land under the Public Works Act 1981 (PWA) through agreement with the homeowner. In the slim chance that they are successful under s 85(3B) grounds, they have the power to refuse acquisition under s 85(3A), which would jeopardize a potential managed retreat policy.
Section 85 has potentially offered too optimistic an avenue to challenge plan-making before the courts, only for these appeals to fail.66 There have only been three successful applications using s 85 since 1991, showcasing that the s 85(3B) threshold has been a tough one to meet.67 Franck,68 a case considering the natural hazard risk of erosion, and followed in the Matatā Hearing Commissioners reasoning,69 determines that residential occupation in a high-risk zone cannot constitute a ‘reasonable use’ of land.70 Therefore, whilst inquiries under s 85(3) by homeowners in a similar context will be fruitless, any hazard risks short of a “high risk” may create leeway for homeowners, which could prevent pro-active retreat provisions from moving ahead.71 Despite the problems with the s 85 tests and remedies, the s 85(1) safeguard remains an important statement of law, asserting that private property rights are not absolute, and
63 Randerson Panel, above n 8, at [15] of Chapter 5: A more responsive system to bias
64 Awatarariki Residents Incorp v Bay of Plenty Regional Council and Whakatane District Council above n 21 at
[13]
65 Hastings v Auckland City Council [2001] EnvC A068 at [98].
66 Randerson Panel, above n 8, at [16] of Chapter 5: A more responsive system to bias
67 See: Hastings v Auckland City Council, above n, Steven v Christchurch City Council [1998] NZEnvC 91; [1998] NZRMA 289, and
Mullins v Auckland City Council PT Decision No A35/96
68 Francks v Canterbury Regional Council [2005] NZRMA 97 (HC)
69 Hearing Commissioners, above n 31, at [127].
70 Francks v Canterbury Regional Council, above n 68, at [74]-[75].
71 Randerson Panel, above n 8, at [84] of Chapter 6: Climate change and natural hazards
excluding the presumption of compensation for a regulatory taking. It will likely remainessential in some form in its replacement in the NBEA.72
There has also been confusion as to whether the PWA can be used for managed retreat processes. The Whakatane District Council received advice that they could not use the PWA provisions,73 potentially because there was no ‘public work’ aspect to the extinguishing of property rights. However, the Report of the Hearing Commissioners noted that s 85(3A), a newly inserted provision of the Resource Legislation Amendment Act 2017, demonstrated Parliamentary intent to make the PWA available as an alternative route.74 As already noted, this would require compensation as expressed in the PWA, meaning that the homeowner is only entitled to what they would receive on the open market.75 This would mean hazard risks would be considered in the valuation, but future public works would not. Considering the complexities of adaptation, the PWA does not provide the necessary flexibility for councils who may want to strike a different bargain with homeowners to reduce moral hazard, such as sharing in the cost of retreat.76 Using the PWA may also result in less compensation for homeowners as the true value of the home may be severely reduced in the event of extensive coastal erosion. This may have the effect of making relocation not financially feasible for some homeowners.77
The Randerson Panel suggested s 85 be reviewed, alongside s 10 which prevents territorial authorities from extinguishing existing use rights.78 In the Matatā example, s 30(1)(c) of the RMA had to be utilised by the Regional Council subject to s 20A, in order to extinguish the existing use rights, by making a residential activity a prohibited activity.79 This extra level of bureaucracy will need to be altered in the future NBEA to ensure more flexibility and efficiency for territorial authorities. In the context of funding seawalls, continuous CPW potentially creates a legitimate expectation for homeowner that this funding and protections will continue
72 Randerson Panel, above n 8, at [94] of Chapter 6: Climate change and natural hazards
73 Hanna, White and Glavovic, above n 26, at 7.
74 Hearing Commissioners, above n 31, at [104].
75 Toitu Te Whenua: Land Information New Zealand Guide for Landowners: What to expect when your land is acquired under the PWA 1981 (2021)
76 Hanna, White and Glavovic, above n 26, at 10.
77 Hearing Commissioners, above n 31, at [39] and [125].
78 Randerson Panel, above n 8 at 157.
79 Hearing Commissioners, above n 31 at [34].
into the future.80 Other changes will therefore be necessary to protect Councils from this type of exposure to liability. I also discuss these legal concerns deeper in Chapter Three.
It is also important to note that with the restructure of the resource management system, will come a stronger governing relationship in collaboration with Māori.81 This means that mātauranga Māori will be considered in assessing the best available science, consultation and input will be sought at all stages of planning, and Māori will take a role in protecting their taonga and whenua. Iwi have a great deal of ancestral knowledge in relation to our environment, and the creation of Iwi Management Plans that deal with hazard risks should be considered a crucial resource for planners.82 It will be vital that Māori give their recommendations on adaptation strategies. In the Matatā example, the clearance of the homes within the red zone was going to have positive benefits for local Māori, as the coastal urupā (burial sites) would no longer be disturbed, and their ancestors could finally rest in peace.83 However, in contrast, there will be inevitable complications where the extinguishing of existing use rights affects Māori land use. These issues will need to be carefully considered by policy makers and Māori in the drafting of the new system.
Overall, the Randerson Panel established that better integration of climate change concepts is needed within the RM system. The new system should also enable adaptation and be forward thinking within planning, considering our environment 100 years or more into the future. Whilst this brief review has touched lightly on some of the issues most relevant to the progression of managed retreat legislation, they could all be looked at individually with much more depth.
80 Severinsen G and Peart R Strategic Planning Act and Funding. (Environmental Defence Society, 2021) p 43. 81 Ministry for the Environment Adapting to Climate Change in New Zealand. Recommendations from the Climate Change Adaptation Technical Working Group. Climate Change Adaptation Group. (2018)
82 Saunders W.S.A Setting the Scene: The Role of Iwi Management Plans in Natural Hazard Management. (GNS Science Consultancy Report, 2017) 34 ; Saunders W. S. H. Kaiser L.H. "Vision Matauranga research directions: opportunities for iwi and hapu management plans." (2021) 16(2) Kotuitui: New Zealand Journal of Social Sciences Online. 371
83 Hanna, White and Glavovic, above n 26, at 12.
This discussion will now turn to compensation. This is arguably one of the most challenging issues to tackle, as compensation can be considered the ‘final step’ in the design of managed retreat policy and will therefore be influenced by many different variables.
1.4. THE PROPOSED ADAPTATION FUND
The Randerson Report has suggested that the most significant issues to address in relation to managed retreat, is funding and compensation mechanisms.84 There is strong push from some commentators, who suggest funding for managed retreat must come from public entities.85 The Climate Change Adaptation Technical Working Group suggested that this burden should be shared by businesses, investors, citizens, homeowners, iwi, government, and insurance.86 As the EQC deals with reactive disaster relief, we need new mechanisms and institutions to deal with government funding for precautionary adaptation strategies. The Insurance Council has also made it clear that they cannot be left with the burden alone.87
The Randerson Panel endorsed the proposals made by Lawrence and Boston, LGNZ, EDS and the Productivity Commission.88 In order to help fund pre-emptive manage retreat, they agreed that there must be a central government fund that can help compensate for this strategy publicly. This fund would operate much like the EQC natural disaster fund, but it would be its own stand- alone fund, a - ‘Climate Change Adaptation Fund’ - that would be used to pay for adaptation costs before disaster strikes.89
More clues are provided in the National Adaptation Plan, which indicates that the government is considering funding adaptation measures through the new Climate Emergency Response Fund (CERF).90 The current CERF, per the 2022 Budget, was funded through New Zealand’s
84 Randerson Panel, above n 8 at [88] of Chapter 6.
85 See: Jonathan Boston Funding Climate Change Adaptation: The case for public compensation in the context of pre-emptive managed retreat (Ministry for the Environment, Wellington 2019)
86 Climate Change Adaptation Technical Working Group, above n 81, at 44-46.
87 Insurance Council of New Zealand Protecting New Zealand From Natural Hazards. An Insurance Council perspective on ensuring New Zealand is better protected from Natural Hazards (October 2014)
88 Randerson Panel, above n 8, at [89] of Chapter 6.
89 Jonathan Boston and Judy Lawrence "Funding Climate Change Adaptation: the case for a new policy framework " (2018) 14(2) Policy Quarterly 40 on page 47
90 Ministry for the Environment Aotearoa New Zealand’s first national adaptation plan (Ministry for the
Environment, 2022) at 90.
Emissions Trading Scheme (ETS) revenue and was focused on reducing emissions in transport, agriculture, and energy.91 However, future Budgets may set aside funding for adaptation. Government is also considering using the Sovereign Green Bond programme to provide financing for adaptation and other climate change initiatives.92 The Adaptation Plan also discusses the development of home flood insurance options, so that insurance remains accessible and affordable for communities.93
As there is potential for some type of climate change adaptation fund to be given effect to by Parliament, assurance has been provided that central government will contribute somehow to adaptation projects. We have an idea of likely funding mechanisms but not answers as to how any fund will specifically be utilised. Will funding be split between local government and central government? Will funding be sporadic or consistent? What might be the public/private split between homeowners and any form of government? When might governments not compensate at all, or limit their liability within the CCAA? Does private insurance have any role at all? The Randerson Panel also endorsed Boston and Lawrence’s suggestions that the fund should be utilised to achieve goals of long-term cost minimization and equitable burden sharing.94 This means that the costs of adaptation should be shared intergenerationally among society. It will be interesting to see how policymakers interpret these goals.
When executing the proposed funding mechanisms, there may also be a need to deal with issues of current government liability where these exist. Decisions will need to be made as to whether current liabilities increase in some circumstances or are minimized. These ideas will be discussed further in Chapter Three.
91 New Zealand Government Climate Emergency Response Fund (Beehive, May 2022) 15 at 7.
92 At 15.
93 Ministry for the Environment, above n 90, at 87.
94 Randerson Panel, above n 8, at [91] of Chapter 6.
Homeowners
2.1. PUBLIC RESISTANCE TO ADAPTATION
As alluded to in the examples discussed in the previous chapter, homeowners have generally been resistant, or downright outraged by the controversial suggestion that they must ‘give up’ their property rights and move elsewhere in response to hazard risks. New Zealanders’ attitudes towards acting on climate change issues in general is less urgent than other countries globally, with only 62% in agreement that individuals must act now, or they will be failing future generations.95 As climate change has progressed over time, the impacts of rising temperatures have been felt so gradually they are often unnoticed by society at large. In contrast, the forced relocation of communities due to hazards exacerbated by climate change, creates drastic consequences for individuals. Lehmann described managed retreat as the “surrender in the battle against climate change” executed through a “radical realignment in the way we live”.96 For reasons like these, local government has advocated for managed retreat to be considered a ‘last resort’ option within adaptation.97
The 2018 Census exhibits the trend that most homeowners tend to spend upwards of 10 years or more in their properties.98 New Zealanders also tend to share a long-term view when investing in property. Comparing properties to urban dwellings, we often share stronger attachments to beachside properties, which may be enjoyed intergenerationally, purchased for the purpose of rest and relaxation, amenity values, or as a permanent place for retirement. This can exacerbate the feeling of displacement when homeowners are forced to move on, likely to
95 See the (EECA) Energy Efficiency and Conservation Authority 2021 quarterly climate change survey: Gen Less "How New Zealanders feel about what we’re doing on climate change" (2021)
<https://genless.govt.nz/stories/how-new-zealanders-feel-and-what-were-doing-on-climate- change/#:~:text=EECA's%20quarterly%20consumer%20monitors1,t%20becoming%20any%20more%20urgent
96 Lehmann R.J. Perverse Incentives and Preparing for Managed Retreat: The Case to Reform the NFIP
(International Center for Law and Economics, 2021) at 6.
97 Crosby S "Managed retreat framework should be developed by councils" (2022)
<https://www.lgnz.co.nz/news-and-media/2022-media-releases/tmanaged-retreat-framework-should-be- developed-by-councils/>
98 Stats NZ "Housing in Aotearoa: 2020. " (2020) <https://www.stats.govt.nz/reports/housing-in-aotearoa-2020>
places that do not share those desired coastal characteristics.99 This is a universal experience. We only need to look as far as Byron Bay, the sought-after popular holiday destination on Australia’s East Coast to understand this sentiment is shared elsewhere. Homeowners have been caught in a litigious ‘legal storm’ to fiercely protect their existing use rights from managed retreat, creating a path of dependency on high-cost alternative of protective buffers, and sea walls, as the Byron Shire Council opted to avoid a policy of acquisition and compensation.100
It is not particularly surprising that resistance is present to the threat of managed retreat. However, upholding connections with the coast must be weighed against the importance of public safety and the intergenerational costs of maladaptation. When maladaptation occurs in the coastal context (i.e. through a local government’s constant repair of failing sea walls), this is an example of homeowners participating in what the insurance literature has described as ‘moral hazard’. This is a term that describes the action of “creating loss inducing behaviour”, but it increases in frequency where policy disincentivises consumers from reducing their risks.101 When compensation policy falls entirely on governments, homeowners do not bear the financial consequences of living in a risk prone area. This problem was cleverly highlighted in a recent opinion piece of the New York Times, titled “we will all end up paying for someone else’s beach house”.102 Barker, an economist critical of the ‘moral hazard’ theory, stated: 103
...by proving that helping people has harmful consequences, the economics of moral hazard
justify the abandonment of legal rules and social policies that try and help the less fortunate.
Examples such as the United States National Flooding Insurance Programme (NFIP) has been criticized for offering low premiums to wealthy coastal homeowners with sea views, providing a stronger incentive to move into harm’s way – rather than out of it.104 One Houston home has
99 SEM Bloomfield "Stepping Back: a look at managed retreat in NZ" (Paper presented at the In Rajagopalan, P. & Andamon, M. M. (Ed.), Engaging Architectural Science: Meeting the Challenges of Higher Density : 52nd International Conference of the Architectural Science Association (ANZAScA), 2018) at page 553
100 Frohlick M/F. Smith T.F. Jacobson C. Fidelman P. Carter R.W. Baldwin C. "Towards adaptive coastal management Lessons from a legal strom in Byron Shire, Australia." (2019) 179 Ocean and Coastal Management 101 Connelly L Rowell D "A History of the Term “Moral Hazard” " (2012) 79(4) Journal of Risk and Insurance 1051
102 Wilkinson F "We Will All End Up Paying for Someone Else’s Beach House" (2022)
<https://www.nytimes.com/2022/08/08/opinion/climate-change-beach-house-erosion.html>
103 Baker T "On the Genealogy of Moral Hazard" (1996) 75(2) Texas Law Review 237
104 Chris Nicoll "Climate Induced Coastal Flooding: Spreading and Governing the Risk" (2020) NZBLQ 26 109
at 117
received 16 pay outs from the NFIP over the course of many years, totalling seven times the value of the original property. The NFIP holds no requirement that retreat occurs when homeowners are handed these pay-outs either. There are currently very little policies barring homeowners from constructing in flood-prone areas. The United States strict adherence to private property rights principles has meant the government must resort to buying out properties through Federal Emergency Management Agency (FEMA) funding.105 FEMA demolishes these flood prone properties to convert the land to open spaces, but this method is a slow and expensive solution.106
There is concern for moral hazard where the entirety of the financial burden of adaptation is placed on governments. Within the New Zealand debate, it is also agreed that the most just outcomes are created through equitable burden sharing between homeowners and government. What ‘equitable burden sharing’ looks like will be unique to each circumstance, but in some circumstances, it may place less burden on government compared to the compensation remedies of the PWA (as discussed in chapter one). Therefore, it is an important inquiry to assess whether the government has the current ability to undergo managed retreat policies without the promise of compensation.
Both sub-chapters 2.2 and 3.1 consider what I have discovered to be two of the major issues regarding public resistance to adaptation. Firstly, I consider the role of science communication in hindering the progress of risk management policies. Secondly, I consider whether the rights- based arguments made by litigants carry any jurisprudential weight.
2.2. COMMUNICATING RISK AND UNCERTAINTY
One of the underlying social issues that has hindered progress on adaptation so far, has been a lack of public understanding of science. Homeowners struggle to grasp the severity of climate induced ‘risks’, especially because of their uncertainty, reliance on probabilities and seemingly ‘fortune telling’ nature. This lack of understanding, or trust in the science or the council experts, leads to homeowner resistance to adaptation, especially where they are potentially grieving the
loss of their home, community and assets.107 Commonly, this leads to homeowners battling it out with councils directly, or through the courts, when their values and interests do not align with the decided adaptation plans.
The root of much resistance is differences in risk perception.108 Kettle and Dow state that the stronger the risks perceived, the stronger the support for action, with this being influenced by the magnitude and nature of the perceived risk.109 A good example of this is the Whalley families situation at Matatā. As their home was one of three to miraculously survive the debris flow of 2005, escaping the structural damage the neighbouring houses received, this created a false sense of safety and the illusion that the risks to their lives and assets were minimal.110 Furthermore, communities do tend to have higher risk tolerances before a natural disaster, compared with directly after a natural disaster. This means public buy-in will always be a challenge for councils when trying to take action pre-emptively.
The issue with communicating probability data also rests in the language used. For example, when a property owner is told that the risk of a disaster event occurring is a 1 in 100 year chance, they minimize that risk as only occurring once in a lifetime.111 However, if they were told that they have a 1 in 5 chance of experiencing a natural disaster in the next 25 years, this will help the public have a better understanding of the severity of the issue at hand.112 Rethinking the way in which we share sensitive information is therefore critical to mitigating public response.
If new legal mechanisms and planning techniques can help bridge the gap between public understanding and these climate change issues, this should logically result in more trust, more public buy-in, and less uncertainty for homeowners. The benefit for local government may include less inefficiencies, wasteful litigation, and potentially less liability to pay the full price
107 Ministry for the Environment Coastal Hazards and Climate Change. Guidance for Local Government.
(December 2017) at 183
109 Nathan P. Kettle and Kirstin Dow "The Role of Perceived Risk, Uncertainty, and Trust on Coastal Climate Change Adaptation Planning" (2014) 48(4) Environment and Behavior 579
110 See: Affidavit of Rick Whalley, Rachel Whalley and Pamela Whalley (December 5th 2020)
111 Insurance Council of New Zealand, above n 87, at 9.
112 Nicoll above n 104, at 124.
of adaptation and managed retreat. In order to achieve equitable burden sharing, all parties must be on board.
One example of a step already taken to make hazard data publicly available, is the establishment of the NZ SeaRise Programme and public website.113 The website provides sea level rise data based on the IPCC climate change projections out to the year 2300, for every 2km of coastline in New Zealand. This data is coupled with vertical land movement (VLM) data that shows the movement of land upwards or downwards in mm/year. The data is presented through interactive maps and infographics and is available through both a public and separate planning portal. Tools like this website help increase consumer agency, education, and participation in planning long-term adaptation solutions.
New Zealand’s ‘first’ adaptation plan (which will be revised every six years to reflect each new National Climate Change Risk Assessment) was released in August 2022.114 Chapter three considers the issue of ‘enabling better risk-informed decisions’ and provides further insight into the solutions by which the government aims to achieve this.115 The plan also highlights that the solutions provided will result in reduction of maladaptation as well. Some of the solutions discussed include providing the public with the latest climate projection data specific to the New Zealand context, designing information portals to hold this data alongside other natural hazard risk information, as well as improving the hazard information available on Land Information Memorandums (LIMs). This focus on ensuring communities have access to technical data is the necessary work that will ensure the gap in public understanding is closed. Ensuring that there is clear guidance provided within the CCAA as to the collection of the “best available science” data, will also help in minimizing uncertainty. This availability of information should also reduce liability within decision-making.
113 NZ SeaRise: Te Tai Pari O Aotearoa (2022) <www.searise.nz>
114 Ministry for the Environment, above n 20.
3. Council Liability to Compensate for Adaptation
In this chapter, I will firstly consider whether there is a ‘right’ to private property in New Zealand that would prevent councils from extinguishing existing use rights. I will also consider whether councils can legally stop the maintenance of coastal protection works when they wish to begin a process of managed retreat. Finally, I will consider how councils can restrict new development and extinguish the existing use rights of existing development when implementing a managed retreat policy. These topics are relevant to the execution of retreat. Specifically, this chapter considers whether councils have the legal power to bring this strategy into effect, and whether they owe potential liabilities to homeowners for doing so.
3.1. ‘RIGHTS-BASED’ ARGUMENTS AND THE LAW OF TAKINGS
There are commentators in the literature that argue that any policy on managed retreat must prefer a ‘conservative’ rights-based approach to property ownership.116 These arguments are also commonly raised by injured parties within case law. They state that there is a common law right to the protection of private property, and secondly, if private property must be taken, there must be ‘just compensation’ made for the loss created.117
As previously mentioned, the litigant in Falkner submitted that there is a common law right to the protection of property from the incoming sea by the Crown. 118 However, Barker J in Falkner asserted that whilst the common law is in force, it will not apply if affected by statute.119 He argued that to apply the common law duty as ‘absolute’, would be an approach that “manifests a narrow 19th century preoccupation of proprietary rights, out of keeping with the more holistic policy concerns of sustainability and environmentalism popular today”.120 Specifically, Barker J emphasised that the RMA represents a ‘clear policy shift’ towards a public model of regulation, and that the Act was “not about the vindication of personal property
116 Catherine Iorns and Jesse Watts Adaptation to Sea-level Rise: Local Government Liability Issues (Deep South
National Science Challenge 2019) 234 at 67
117 See: Ryan Kathleen "Should the RMA include a Takings Regime" (1998) 2 NZJEL 63
118 Falkner v Gisborne District Council, above n 41, at 632-633
rights, but about the sustainable management of resources.” 121 Section 85 was not directly applicable in the context of Falkner, the case being concerned with the negative actions of the Council, choosing to stop protective works, rather than positive actions of retreat specified in a plan change provision. However, Barker J made his concerns about future managed retreat policies clear. He suggested legislatures should consider inserting a provision within the RMA that would compensate for loss of value in land, modelled off s 19 of the United Kingdom Coast Protection Act 1949.122 In that Act, landowners could make application to the to the Coastal Protection Authority (CPA) to gain resource consents to undergo their own CPW.123 If consent is refused, the CPA absorbs future risk, and s 19 entitled homeowners to full compensation to the amount that their property interests were damaged or depreciated as a result of the declined application. This issue will be considered more closely in sub-chapter 3.2.
The dominant paradigm in the English system of property ownership organizes land in geographical space, prioritizing individual ownership that can be exercised to the exclusion of all others, and emphasising privileges with few social obligations.124 The theory underpinning this understanding of property is known as classical liberalism. It has been heavily criticized for being synonymous with environmental destruction. In the context of weak regulation, Burdon argues there is little incentive for private property owners to consider the public and social good of caring for their environment, causing them to exploit their resources.125 However those who advocate for private property ‘rights’ believe it facilitates ‘conservation’, as individuals (rather than communities) are incentivised to protect and enhance the value of their property.126
Whilst the liberalist theory is the most common understanding of property amongst laypeople, there are differing opinions as to its significance in dictating the legal landscape. For example, Barton argued that land use regulation “has a proper place in the scheme of things,” 127
122 At 633.
123 Coast Protection Act 1949 (UK), s 16
124 France-Hudson "Surprisingly Social: Private Property and Environmental Management " (2017) 29(1) Journal of Environmental Law 101 at 105.
125 Peter Burdon "What is Good Land Use? From Rights to Relationship" [2010] MelbULawRw 25; (2010) 34 MULR 708, at 713-715. 126 Bryce Wilkinson A Primer on Property Rights, Takings and Compensation (New Zealand Business Roundtable, 2008) at 12.
127 Barry Barton "The Legitimacy of Regulation " (2003) 20 (3) NZULR 364
challenging Joseph’s assertions that private property rights must be upheld within planning and environmental management.128 The crux of Josephs argument is that environmental preservation and property rights are not competing principles and can both be upheld within the RMA system.129 For example, where environmental controls are necessary, property rights are still enforceable, and the community must compensate for the loss of rights as a consequence of regulation. Joseph looked to several common law principles and other western jurisdictions to make the argument in favour of a regulatory taking’s doctrine in New Zealand. This dissertation does not wish to cover those arguments here. However, he uses his argument to suggest that private property should only be restricted or taken in the most limited of circumstances, adhered to through a presumption against takings, and more importantly, that if there is a taking, there be a right to ‘just compensation’.130 I will now consider whether this type of ‘rights’-based argument may be upheld by the Courts based on the current law.
Firstly, our New Zealand Bill of Rights Act 1990 does not specify a constitutional right to private property, as integral to the rights of liberty and life. However, section 28 does state that any “existing right or freedom” found outside NZBORA is not repealed simply because it is not found within the four walls of NZBORA. This provision has been used to argue that there is a presumption to just compensation for a regulatory taking found in Magna Carta, and s 28 justifies that this is a right upheld in New Zealand law.131 Counsel for the ARI (Awatarariki Residents Incorporated) in the Matatā example, relied on the Supreme Court Waitakere City Council v Estate Homes Limited 132 decision to make this argument.133 Section 28 and Magna Carta’s potential relevance were raised by the Court of Appeal in that case.134 However, the Estate Homes judgement is extremely complex, and it’s principles do not necessarily advance a litigants interests.
128 Phillip Joseph "The Environment, Property Rights and Public Choice Theory" (2003) 20(4) NZULR 408
132 Waitakere City Council v Estate Homes Ltd [2006] NZSC 112
133 See: Hearing Commissioners, above n 31, at [101].
134 Estate Homes Ltd v Waitakere City Council [2005] NZCA 271; [2006] 2 NZLR 619
In undergoing statutory interpretation, the Court of Appeal recognised that ch 29 Magna Carta 1297, still part of the laws of New Zealand, shared a competing principle with s 85(1).135 Whilst ch 29 implies just compensation for a regulatory ‘taking’, s 85(1) is clear in its intent that no interest in land is ‘taken’ in a legal sense. The Court of Appeal then tried to reconcile those two principles to construe the statutory provisions in light of a presumption of compensation for a regulatory taking. In that example, they found that the designation for an arterial road did amount to a regulatory taking. However, the Supreme Court overruled this decision on the basis that there was no ‘taking’ in that context.136 This ruling was based on what I distinguish as a factual understanding of a regulatory taking, as there was no ‘absence of choice’, preventing those with an interest in land from utilising their property.137
The Supreme Court appeared to leave it open as to whether a regulatory taking in a legal sense could ever be found. The judgement implied that where the ‘absence of choice’ is present, and a factual taking is found, “the principle of statutory interpretation applied by Court of Appeal in this case can be invoked”.138
As was raised in the GNS Report on regulating existing uses, and as I strongly agree:
“It is difficult to think of a situation under the RMA where a situation like that contemplated by the Supreme Court would eventuate in the resource consent context, and certainly such an approach to provisions in plans seems categorially ruled out by the clear words of s 85(1).”139
Section 85(1) of the RMA states that an interest in land “shall be deemed not to be taken or injuriously affected”. Therefore, s 85(1) acts as a catch all for all factual takings, minimizing any opportunity for the Estate Homes principles to apply under the RMA context. Any factual takings are restricted by s 85(1), which states that a legal taking cannot exist. For these reasons, Estate Homes does more to confuse the discussion than resolve it.
136 Waitakere City Council v Estate Homes Ltd, above n 132, at [54].
139 B France-Hudson, E Grace, MJ Kilvington Reducing risk through the management of existing uses: tensions under the RMA (GNS Science Report 2019/55, 2019) 131 at 87.
Regardless of these common law presumptions, there can be no regulatory taking in the current New Zealand context, and therefore the presumption of just compensation for such a taking cannot be applied. Whilst politically difficult, the government has the ability under the current RMA system to enact managed retreat policies without the legal requirement to compensate. In the words of Sir Geoffrey Palmer: 140
In New Zealand, absent any statutory obligation such as that contained in the Public Works Act, it is a principle that must be honoured by the executive and by Parliament. It cannot be implemented by the Courts.
In my opinion, this settles the argument. Whilst ‘right’s-based arguments are often well debated; they are not supported by the statutory powers necessary to be successful in the Courts.
It is important to consider whether s 85, which is currently under review, will have a place in the new resource management system. This helps answer whether this principle of regulation without compensation will remain. As alluded to in earlier discussion of the Randerson Report, the grounds of s 85 are a tough threshold to meet. Whilst s 85 is yet to be considered by the Courts in relation to managed retreat policies specifically, commentators have suggested that it still contentious whether the necessary threshold will always be met.
For example, often managed retreat policies are created to deal with legitimate public concerns for human safety due to significant hazard risks, alike Matatā. In that scenario, the risk itself makes the land incapable of reasonable use before the land-control rules are established, so that the s 85(3B)(a) test cannot be met.141 At least in the most extreme risk scenarios, the second limb of s 85(3B)(b) is also unlikely to be met. Land-controls can be justified as not an “unfair and unreasonable burden” on persons with an interest in land where the controls will save human life.142 Obviously, where risks are uncertain or apply only to property, then perhaps the s 85 provision would be met.143 However, due to the current lack of direction within case law, the CCAA may wish directly introduce provisions specifying exceptions to the general s 85
140 G Palmer "Westco Lagan v A-G" (2001) NZLJ 163 at 168.
141 B France-Hudson, E Grace, MJ Kilvington, above n 139, at 79.
rule to ensure there is determinative compensation available for retreat at all risk levels (if the general form of s 85 remains in the NBEA).
I am of the opinion that the substance of s 85(1) will remain. The policy shift the RMA made towards social utility and environmental protection above property rights will only be strengthened in the new system. There are many good justifications for this policy stance. Barton commented that environmental regulation is necessary to achieve common goods and solve valuation and intergenerational issues.144 France-Hudson makes a strong argument that social obligations have been an integral part of property ownership for centuries.145 Whilst the classic liberalism theory of property grew in popularity through the 18th century, what has now been coined ‘progressive property’, and its incorporation of social good within property rights, can be traced back to the work of Aristotle.146 The progressive property model of property puts the community interest ahead of the private interests of the individual.147 Whilst private property rights are still important, they are not absolute, and subject to legitimate obligations that restrict a landowner’s privilege’s.148
Much has changed in the social and legal context since Joseph’s article 20 years ago. In 2021, he released his 5th edition on constitutional and administrative law, inserting a whole new chapter focusing on tikanga in the law.149 In the textbooks preface he acknowledges that “the courts in particular, have shown willingness to embrace tikanga and the bi-cultural principles on which New Zealand was founded”. Kaitiakitanga is a value of tikanga that has become influential within resource management law.150 As te ao Māori also places emphasis on the social nature of our environment and resources, the ‘rights based’ arguments of the classic liberalist writers appear even more outdated in our uniquely New Zealand social context.
144Barton, above n 127, at 385.
145 France-Hudson, above n 124.
146 France-Hudson, above n 124, 2 at 109.
149 Phillip Joseph Joseph on Constitutional and Administrative Law (5th Edition) (Thomson Reuters New
Zealand Ltd., Wellington, New Zealand 2021)
150 Kawharu M "Kaitiakitanga: A Māori Anthropological perspective of the Māori socio environmental ethic of resource management" (2000) 109(4) The Journal of the Polynesian Society 349
Whilst tikanga concepts are already a well-established consideration of the RMA, they are expected to play a more central role to the NBEA. The exposure draft of that Bill, released in 2021, describes the purpose of the Act, as enabling ‘Te Oranga o te Taiao’.151 This is a holistic term incorporating the health of the environment, the interconnectedness of all parts of the environment, and its capacity to sustain life. Those submitting their opinions on the exposure draft showed ‘broad support’ for this concept.152 Furthermore, the purposes laid out in the draft also appear to remove anthropocentric goals that were still a consideration within the RMA, emphasising instead that ‘use of the environment must comply with environmental limits’.153 This provides strong evidence that we continue to move in the direction of ‘progressive property’, which will continue to justify the placement of regulation on homeowners without obligation to compensate. However, in the context of managed retreat, this is a particular challenge with a wider range of considerations. Rather than compensation being placed entirely on governments or homeowners, I have continued to emphasise that equitable burden sharing should be preferred. This means there will be a need for exceptions to s 85 to be made in the managed retreat context, to ensure there are fairer and more accessible avenues available for homeowners seeking compensation to fund the necessary adaptation.
3.2. THE LEGACY ISSUE
It is well established that the Environment Court cannot compel a local council to erect CPW.154 Any action in negligence due to a council decision to refuse resource consent applications for CPW will also likely be unsuccessful.155 However, where councils have provided maintenance on CPW for an extended period, and created an expectation that this maintenance would continue, this has been coined the ‘legacy’ effect.156 Judy Lawrence describes this effect as occurring when exposure to risk is entrenched through ‘path dependency of past decisions’, as
151 Natural and Built Environments Bill Consultation Draft 2021
152 Government Response to Report of the Environment Committee on the Inquiry on the Natural and Built Environments Bill: Parliamentary Paper J.1
153 Natural and Built Environments Bill Consultation Draft 2021, s 5(2)(a)
154 Iorns and Watts, above n 116, at 170. Citing cases: Bay of Plenty Regional Council & Ors v Western Bay of Plenty District Council (2002) 8 ENZLNZ 97 (EC) at [66]; Mason & Ors v Bay of Plenty Regional Council & Anor A98-07 EnvC Auckland, Nov 30 2007 at [69]-[70]; Thacker v Christchurch City Council ENC Christchurch CO26/09, 6 May 2009 at [24]
155 See: Bella Vista Resort Ltd v Western Bay of Plenty Council [2007] NZCA 33, [2007] 3 NZLR 429 at [59] –
[62]
156 Frohlick, Smith, Jacobson, Fidelman, Carter, and Baldwin, above n 100, at 5.
homeowners pressure local government to provide protection regardless of rising climate
risks.157
There are concerns amongst the literature that these expectations could lead to successful lawsuits in negligence (or other torts) by homeowners. 158 Legal opinions discuss this issue hypothetically as there is a lack jurisprudence that directly discusses an action in negligence where Councils have stopped the maintenance of CPW.
As should now be clear, Falkner asserts that there is no current legal duty to continue the maintenance of CPW under our current RMA system based on common law property ‘rights’.159 As any ‘right’ has been superseded by statute, there is no duty to compensate for not providing that service on that argument. Considering the shift in policy towards preferring adaptation measures other than ‘hard defences’, this absence of legal basis is likely to remain in the future reforms and be strengthened through the CCAA.160
The powers of local government to choose to construct or maintain a CPW on behalf of private homeowners, is made on a ‘discretionary’ basis per their general power of competence.161 This decision will therefore need to implement the purposes and principles of the Act and the decision-making procedural requirements of Part 6, subpart 1 which makes specific reference to consultation. In the amendments of 2019, the purposes of the Local Government Act (LGA) and of local government’s duties reinstated the "community wellbeing" sustainable management approach considering social, economic, environmental and cultural factors in decision-making.162 Furthermore, the s 14 principles of the LGA also emphasise the need to consider the “interests of future generations as well as current communities”.163 If this process
157 J Lawrence "Implications of climate change for New Zealand's natural hazards risk management" (2016) 12(3) Policy Quarterly 10 at page 35
158 See: Iorns and Watts, above n 116, at 177; Simpson Grierson Ability to stop or limit the provision of services infrastructure and potential liability consequences (Feb 2018) at [35].
159 Falkner v Gisborne District Council, above n 41, at 632. 160Policy 25(e) NZCPS, ‘discourages’ hard protection structures 161 Local Government Act 2002, s 12
162 Local Government Act, s 3 and s 10
163 Local Government Act, s 14(c)(ii)
has been followed carefully, this should prevent any successful claims in negligence or judicial review of the decision to stop maintaining CPW.
Iorns and Watts argue that the Soil Conservation and Rivers Control Act 1941 (SCRCA) was held to be applicable to CPW in Falkner. Although, they admit that whether CPW matters fits within the purpose of the SCRCA is questionable.164 Regardless, in the context of overflowing watercourse, or breaking water infrastructure, section 148(1) SCRCA restricts an injured party from holding councils liable for property damage that occurs ‘without negligence.’ This led them to conclude that a “duty of care is owed for the maintenance and monitoring of CPW in sufficiently analogous situations to the Easton165 case”.166 A duty of care was owed in Easton because the injured party proved that they were entitled to rely on the maintenance of services by the Council. Specifically, that funding had been put towards ensuring the maintenance of the flood protections, with the majority of this budget being raised from the plaintiffs through a special levee.
In my opinion, what Iorns and Watts were trying to express, is that where homeowners properties are protected on the promise of ‘reliance’ upon the local authority, this is the only clear situation where a negligence claim may plausibly be raised. Until a local authority undergoes the procedural requirements necessary in the decision to stop CPW maintenance, they must make good on any promise to maintain or monitor these works. However, even in Easton, an action in negligence failed as the plaintiff could not establish causation. In the context of coastal hazards, when CPW are not maintained, and damage occurs through an event such as a storm surge, it may be hard to establish causation as the damage may have happened anyway. This is especially so as sea-level rise continues, causing many CPW to become ineffective in protecting assets.
In general, councils need to be careful about what they promise homeowners in terms of CPW. They need to make it clear that this is a discretionary activity and not a service that will remain in perpetuity. It is however, relatively easy to avoid successful claims in negligence and judicial
164 Iorns and Watts, above n 116, at 168.
165 Easton Agriculture Ltd v Manawatu-Wanganui Regional Council [2013] NZCA 79
166 Iorns and Watts, above n 116, at 178.
review if a methodical approach to decision making is undertaken that complies with the statutory procedures and affected parties are consulted with during the process of deciding to stop current CPW.
Regardless, if councils are fearful of negligence disputes, as they drain council time and resources even where these claims are likely to fail, then the CCAA can deal with this directly. The CCAA could limit liability of all claims in tort for the decision to stop the maintenance of CPW, as long as all procedural requirements of the LGA had been complied with.
3.3. NEW DEVELOPMENT VS EXISTING DEVELOPMENT AT THE COAST
Managed Retreat is well studied in the context of coastal environments, partly due to the emphasise that the NZCPS places on dealing with natural hazards (that is not given attention to within other national policy statements).167 Whilst there has been talk of creating a national policy statement for natural hazards, this is yet to eventuate.168 However, the NZCPS does exist
- and it must be ‘given effect to’ by regional policy statements, regional plans and district plans.169 When considering consent applications, the consent authority must also ‘give regard to’ the NZCPS, alongside other relevant provisions such as part 2 of the RMA .170 King Salmon, is the leading case that considers the operation of NZCPS and its provisions (although these principles are again, under review by the Supreme Court).171 The NZCPS is made of policies and objectives, of which the policies “support” and “implement” the objectives.172 Furthermore, the prescriptive wording of policies created a hierarchy of preferences for particular action through an ‘environmental bottom-line’ approach. For example, verbs such as “promote” “encourage” “recognise” “consider” are flexible policies,173 whereas policies that used the word “avoid” carry the meaning “not allow” or “prevent the occurrence of”, creating mandatory obligations.174
167 See: Objective 5, Policies: 1, 4, 10, 24, 25, 26, 27 NZCPS 2010
168 Simpson Grierson, above n 18, at [71]
169 See: s 62(3), 67(3)(b) and 75(3)(b), Resource Management Act 1991
170 RJ Davidson Family Trust v Marlborough Distict Council [2018] NZCA 316; at [70], and s 104(1) RMA
171 Environmental Defence Society v King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593; upheld in Port Otago Ltd v Environmental Defence Society Inc [2021] NZCA 638, now under review in the Supreme Court.
172 EDS v King Salmon, at [10] and [48]
Objective 5 and policy 25 of the NZCPS, are the most relevant to adaptation and managed retreat. Objective 5 states that councils ‘ensure’ coastal hazard risks... are ‘managed’ through three strategies. The most relevant to this discussion is; ‘locating new development away from areas prone to risks’ and ‘considering responses, including managed retreat, for existing development...’. Policy 25 states that in areas ‘potentially affected by coastal hazards over at least the next 100 years...avoid increasing the risks’ from those hazards, and ‘avoid redevelopment and change in land use’ that would also increase risk.175 Policy 25(c) uses the word ‘encourage’, for ‘redevelopment and change in land use that reduces the risk of adverse effects from coastal hazards, including managed retreat.’
Gallagher states that policy 25 must be read in conjunction with objective 5.176 The Court states that this ‘environmental bottom line’ applies to hazard-increasing development alone.177 The differentiation that can be made, is that prospective strategies, regarding how we deal with new development, prevent increasing one’s exposure to risk in the future. They are politically and legally easier to implement than the alternative. Managed retreat, the movement away from existing development in order to decrease exposure to risks, is retrospective in nature. This is perhaps why the first can so easily be “avoided”, whereas managed retreat is only “encouraged”. Land-use controls are therefore much easier applied to ‘new’ over ‘existing’ development.
A classic example of plan changes being made restrict land use development can be found in Ideal Laundry.178 In the Petone Borough of which a commercial laundry business belonged, a plan change was made to make the area a “residential zone”. This had the effect of preventing a new extension of the current commercial laundry business on the adjacent block of land they owned. The town planning schemes were to be upheld as if they were “statute”, legally overriding any ‘right’ to use one’s property as the owners see fit, without liability to compensate. When councils plan changes to prohibit new development and redevelopment on
175 Policy 25(a) and (b)
176 Gallagher v Tasman District Council [2014] NZEnvC 245 at [150]
178 Ideal Laundry Ltd v Petone Borough [1957] NZLR 1038
residential land, they can make residential activity a prohibited activity status or non-complying activity status.179 The prohibited activity status is the best option for councils as it prevents any consent applications being made to make exceptions to the activity status, which in contrast, may be done under the non-complying activity status.180
The first step in determining whether an activity status should be changed for a particular area requires a cost/benefit assessment under s 32 of the RMA.181 For example, the objectives of the new plan must be the ‘most appropriate option available’ to achieve the purpose of the Act (s 5, sustainable management).182 Environmental, economic, social, cultural effects are all to be considered.183 This will require a comparative evaluation of different options available to the council.184 Other factors to consider in making a plan change include the functions of the council,185 part 2 of the Act, and other relevant considerations found under s 74 and s 76(3).186 As expressed above, the NZCPS prescribes that new development and redevelopment is to be avoided in areas exposed to coastal hazard risk, therefore providing strong justification necessary under s 32.
It is important to note that ‘prohibited’ activity status rules are commonly challenged in the Court through creative arguments. However, Coromandel Watchdog ruled that prohibited activity simply means that no resource consent is available, and this prohibition need not be forbidden outright, but subject to change or exception.187 Potential situations that might cause a council to “rationally conclude that prohibition was the most appropriate” option was
179 See s 77A Resource Management Act
180 See s 87A, s 87B and s 104D Resource Management Act
181 Local Government NZ Climate change and Natural Hazard decision-making: A legal toolkit for councils
(LGNZ, 2018) at page 12
182 Coromandel Watchdog of Hauraki Inc v Chief Executive of the Ministry of Economic Development [2007] NZCA 473, [2008] 1 NZLR 562 at [28]
183 Section 32(2)(a) Resource Management Act
184 Thacker v Christchurch City Council ENC Christchurch CO26/09, 6 May 2009 at [50]
185 Section 30 or s 31 Resource Management Act
186 Coromandel Watchdog of Hauraki Inc v Chief Executive of the Ministry of Economic Development above n 182 at [31]
187 Motorua Island Ltd v Northland Regional Council [2013] NZEnvC 227 at [11]; Coromandel Watchdog of Hauraki Inc v Chief Executive of the Ministry of Economic Development above n 182 at [41]
considered.188 These include: when taking a precautionary approach, or a staged approach to planning; when ensuring comprehensive development; as an expression of social or cultural outcomes; to restrict the allocation of resources; and where the Council wishes to establish different priorities.189
Obviously, the prohibited activity status deals with the issue of hazards more effectively than the non-complying activity status. The non-complying activity status may be preferred where other adaptation measures are appropriate to be considered by councils, such as the use of relocatable buildings or building above sea level. The Holt case is one example where building a house on poles was allowed as a non-complying activity.190 However, Iorns and Dickens have made the argument that a court is likely to decline an application on similar facts today due to the more restrictive measures now in place to deal with hazard risk and the policy shift away from homeowners voluntarily assuming risk.191 In terms of subdivision consent applications, interestingly, they are actually easier to decline on the basis that there is a “significant risk from natural hazards”.192 This applies to all types of subdivisions regardless of the activity status (so there is even more discretion to restrict further development even in areas where residential activity is a complying activity).193
The proposed new purpose of the NBEA per the exposure draft emphasises intergenerational needs, such as not “compromising the needs of future generations”. 194 Preventing development in hazard-prone areas fulfills this purpose neatly. The introduction of ‘environmental limits’ within the NBEA would also strengthen council justification for tighter land use controls to avoid climate hazards.195 Whilst creating prohibited activity status rules under the RMA are often avoided by councils due to fears of litigation, they will likely be easier to implement under the new NBEA.
188 Coromandel Watchdog of Hauraki Inc v Chief Executive of the Ministry of Economic Development above n 182 at [36]
190 Otago Regional Council v Dunedin City Council [2010] NZEnvC 120, [2010] NZRMA 263
191 C Iorns and M Dicken "Climate Change Adaptation in the Environment Court: Revisiting the 2010 Holt case" (2019) 50 VUWLR
192 Resource Management Act, s 106
193 Iorns and Watts, above n 116, at 133.
194 NBEA Exposure Draft s 5(1)(b)
195 See s 7 of the Exposure draft: Environmental limits can be established to protect “human health”.
Ensuring that new development strictly adheres to an environmental bottom line approach in relation to the avoidance of natural hazards will be an important requirement of the upcoming reforms. Preventing further exposure to natural hazards will not only minimize the need to resort to managed retreat in the future but will also be the most efficient strategy to minimize government liability to compensate homeowners and fund all adaptation. Having access to the best available science will also help achieve this goal and ensure accurate plan changes.
In dealing with existing development, I have established that there is no right to compensation for a taking, only very narrow grounds to challenge land use controls under s 85. Territorial and regional authorities share overlapping functions in dealing with natural hazards under the RMA.196 How a regional council vs a district council might restrict existing development was described in McKinlay v Timaru District Council.197
In McKinlay, the district plan prohibited residential property in recreation zone one, an area subject to coastal inundation, making an exception for ‘existing’ buildings. This had the effect of potentially prohibiting redevelopment of homes if they were ever affected by hazard risks. The McKinlay’s made the submission that they must be able to reconstruct their house in the event of natural hazard “as a right”, captured by s 10 of the RMA. Section 10 deals with existing uses in district plans, stating that uses “established before the rule” on a district plan became operative, or where the use is “the same or similar in character” can continue, contravening a district plan. However, s 10 does not apply where land is controlled under s 30(1)(c), which refers directly to regional control of land use.198 The avoidance or mitigation of natural hazards is a legitimate control of a regional council at 30(1)(c)(iv).
If a regional council has established sufficient land use controls over a specified area, then s 20A existing use rights exceptions apply instead. However, s 20A only provides a short
196 Compare s 30 and s 31, Resource Management Act
197 McKinlay v Timaru District Council [2001] NZRMA 569
extension for the continuation of previously permitted activities, until the plan becomes operative, or where a new consent application is made within six months of the new rule becoming operative and a decision on that application is made.199 Therefore, s 10 provides those with existing use rights the safety net to continue their activities indefinity, that is absent from s 20A. Accordingly, whilst the District council cannot extinguish existing use rights to prohibit the residential activity of existing development, the regional council can on their own regional plans. The Regional and District Council in the Matatā example, were the first to follow the strategy discussed in McKinlay. As that dispute was settled outside the Court, our Judges are yet to consider s 85 and the extinguishing of existing use rights in the context of managed retreat policy and precedent is yet to be set.
As already mentioned, the upcoming reforms will create more prescriptive rules to ensure the alteration of activity status for existing development is an easier process. This is important to ensure that pre-emptive retreat is a workable strategy. Councils are currently tempted to wait until disaster strikes, as preventing new development during the reactive retreat process is seemingly easier to implement, when compared with a prohibition on existing uses for existing development.
199 Resource Management Act, s 20A(2)(c)
4. Utilising LIMs
Land Information Memorandums (LIMs) are one of the limited tools available to gather all information known about a property from the local council at one point of time.200 They are focused on putting the recipient on notice to potential hazards and are not to be considered a comprehensive analysis of whether a property is safe, or at risk and dangerous.201 Ensuring that LIM reports display the necessary hazard and climate change data relevant to a piece of land is one logical common-sense solution.202 Legislative changes to the Local Government Official Information and Meetings Act 1987 are needed to ensure this strategy is implemented properly. This change is expected by the end of 2023.203
Typically, homeowners have favoured a lack of transparency to avoid their own homes devaluing.204 They often prefer the ‘ignorance is bliss’ attitude because they are aware it may necessarily put them at a financial disadvantage to have risks of the area acknowledged, which results in necessary disclosure to prospective buyers. What has occurred within coastal planning at Kāpiti Coast is a good example of this.
In 2012, the Kāpiti Coast District Council (KCDC) attempted to update the hazard risk assessment of the coastline, specifically to map erosion and sea level rise data of predicted 50 and 100 year shorelines, to inform the Proposed District Plan.205 Currently, the necessary features of LIM reports relating to hazard data is information ‘not limited to potential erosion, avulsion, falling debris, subsidence, slippage, alluvion, or inundation or likely presence of
200 Local Government NZ Review of Land Informaton Memorandums: Achieving best practice (LGNZ, 2021) at
14
201W.S.A Saunders and J.E. Mathieson Out on a LIM: the role of Land Information Memorandum in natural hazard management (GNS Science, 2016) 97 at 7
202 Iorns and Watts, above n 116, at 208.
203 See: Ministry for the Environment Aotearoa New Zealand’s first national adaptation plan (Ministry for the
Environment, 2022) at 49.
204 Nicoll, above n 104, at page 125.
205 Green K "Nine years ago, Kāpiti Coast residents drew a line the insane. Now the council is trying again to draw hazard lines of its own " (2021) <https://www.stuff.co.nz/environment/climate-news/126375538/nine- years-ago-kpiti-coast-residents-drew-a-line-in-the-sand-now-the-council-is-trying-again-to-draw-hazard-lines- of-its-own>
hazardous contaminants.’206 It is it to be displayed on a LIM where it is not specified on a district scheme or plan but is knowledge known to the territorial authority.207
In the Kāpiti Coast saga, many of the local residents opposed the work of Dr Roger Shand, the Coastal Scientist who assessed the coastal erosion and sea levels of the coastline, and made the projections known as the “Shand lines”. Weir took the KCDC to Court for judicial review of the decision to include the Shand lines on LIM reports of 1800 land titles along the coast.208 This is because these lines bisected Weir’s land title, as it did many others, shaving off the seaward fringe of their beachfront properties, or in some cases, penetrating more deeply into the property, essentially rendering the buildings there unliveable in 50 or 100 years’ time.209 The lines were assessed on a precautionary basis, considering the worst case scenario, and without taking into account accretion, which refers to the accumulation of sand that was occurring on parts of the Kāpiti Coast.210 Weir, among his supporters, believed that this approach to the assessment created bias and misleading data that was unfairly prejudicial to homeowners.
The Shand Report itself was completed to fulfill the requirements of the NZCPS,211 and was used to propose restrictions on new development in the new District Plan proposal, making a distinction between “no build” and “relocatable buildings”.212 This meant that the LIM requirements of s 44A(2)(a) LGA had been met, and in the interim decision, the Court held that the council were obliged to put the Shand lines on the LIM, as Shand’s science was “sufficiently robust”. This obligatory disclosure is only temporary, until the data was potentially added to the Operative District Plan after review.213 The remaining issue, was how this information was to be recorded on the LIM. Williams J took note that councils had a ‘broad discretion’ in how to represent the information but that the information must [be displayed as] “accurate, state the
206 Local Government Official Information and Meetings Act 1987, s 44A(2)(a)
208 See: Weir v Kapiti Coast District Council [2013] NZHC 3522
211 Specifically Policy 3, in adopting the precuationary principle in the coastal environment and Policy 24, requiring hazard risks to be assessed over the next 100 years
212 Weir v Kapiti Coast District Council, above n 208, at [8].
position fairly, and must not mislead”.214 However, the lines had been added to cadastral maps without being well communicated in simple terms, without a sufficient disclaimer to their reliability, and the judgement was considered ‘interim’ to allow the council to make improvements.
In the interim, an independent review of the Shand lines found that the lines were not sufficiently robust to be included on the District Plan, and the lines were removed from the LIMs, as they no longer met the s 44A(2) requirements for disclosure.215 William J finalised the matters in a final judgement, stating that his decision in the initial judgement stands. Regardless of the standard of reliability to which the Shand lines were to be relied upon, the council was obliged to, having knowledge about potential erosion, include this on the LIMs. The dispute essentially concluded, Williams J was not prepared to look at Weir’s new concerns, namely whether there is a duty to consult homeowners before displaying information on LIMs, and whether there should have been a standard of reliability met before the information was to be included on a LIM.216 Williams J does suggest however, that as there was an obligation to put the information on the LIM, there would be no use in consultation with homeowners on that matter, but perhaps only discretion as to how they display that information. On the reliability issue, he points out that the requirements for disclosure on a LIM are a ‘relatively low threshold’ concerned with a ‘reasonable possibility’ of erosion (or any other hazard), whilst review for the District Plan required a more sophisticated and merit-based analysis.
Having considered that case in detail, it raises a number of issues within our current legal framework regarding LIMs. These are, that there are no clear rules or principles guiding the display of information on LIMs; s 44A(2)(a) is vague in its description of what must be displayed (or alternatively transferred to the Operative District Plan); the reliability threshold is potentially too low and needs review; and it is not clear whether any consultation needs to occur. More specifically, there is concern with the inconsistency of the display of hazard information. Most homeowners would consider the LIM report to be the gold standard of
215 Weir v Kapiti Coast District Council [2015] NZHC 43 at [7]
property data.217 However, where hazard information is held on a District Plan, there is no requirement that it is held on the LIM per s 44A(2)(a), which increases the chance of disconnect between market values and hazard risks, resulting in maladaptation.218
The new National Adaptation Plan promises to improve natural hazard disclosure on LIMs.219 It is important that these deficits in the display of hazard information on LIM reports is dealt with properly in the coming amendments, due to the drastic affect it can have on property owners. The Shand lines, resulted in a loss of $200 million off the 1800 affected, and data retrieved through the Official Information Act shows that although the lines were eventually removed, 516 landowners, or 31% of those affected had changed ownership since 2012.220
As the Council is required by s 44A(2)(a) to disclose all information that is known to it, without any further requirement that they believe the information the predictions in the information are thoroughly reviewed and reliable, then naturally what follows is that they are not liable for the consequences that occur to market values as a result of this information being disseminated. As described in Weir, their obligation only goes as far as ensuring that the way the information is communicated on a LIM is accurate, fairly stated, and not misleading.
Potential judicial review of their decision to leave out or include information on a LIM on the basis that the decision was unreasonable, irrelevant, a mistake of fact or an error of law. However, Weir sets a precedent that even information that presents the “worst case scenario” and toes the “boundary line between reasonable possibility and mere speculation”221 was still considered to fall within the bounds of the Councils obligations. Therefore, the word ‘potential’ has set the bar under judicial review very high, although it is likely Council have a general duty
217 Local Government NZ Review of Land Informaton Memorandums: Achieving best practice (LGNZ, 2021) at
[15]
218 Insurance Council of New Zealand, above n 87, at 8.
219 Ministry for the Environment Aotearoa New Zealand’s first national adaptation plan (Ministry for the
Environment, 2022) at 49.
220 Cann G "One-third of Kāpiti Coast properties in hazard lines battle have since been sold" (2017)
<https://www.stuff.co.nz/environment/99165184/onethird-of-kpiti-coast-properties-in-hazard-lines-battle-have- since-been-sold>
221 Weir v Kapiti Coast District Council, above n 208 at [52].
to consult where this information will result in large financial losses for a potential vendor as amatter of fairness.
The bigger issue, in my opinion, is potential claims in negligence, where Councils are held to have breached their duty of care if decisions are made upon the reliance of LIMs that either do not include necessary information, or that information is misleading (i.e., does not contain a sufficient disclaimer as to the reliability of that information). What this tells us, is that Councils are to err on the side of caution. If any information is ‘known’ to a council, this should be included if it can be classified a ‘potential’ risk.
In the future amendments, there is likely to be changes made to ensure that all hazard information is present on LIMs, regardless of whether it can be found on an operative district plan, considering the strong reliance that homeowners place on the LIM for property information.222 This naturally means there may be a decision made between ensuring that information is more rigorously reviewed, such as through changing the wording from ‘possible’ to probable or likely, or alternatively, putting emphasis on communication of disclaimers. For reasons of practicality, the former option is unlikely to operate effectively in a context where there is urgency for LIM reports to be acquired quickly by vendors or other interested parties who need the LIM information for the progress of a conditional settlement on a sale and purchase agreement.223 Due to time pressure, accuracy of the data on LIMs may consequentially decrease. Therefore, the current wording and low threshold requirement for disclosure on a LIM, is in my opinion, sufficient.
In the context of the managed retreat process, it will therefore be of necessity that sea level predictions will be a mainstay of LIMs in the future. Whilst they will create economic loss for the homeowner who first acquires this information on their LIM, any prospective homeowners will have purchased the property in full understanding of the potential risks involved. The LIM can therefore be a powerful tool in ensuring equitable burden sharing and lowering government’s residual liability. Policy could focus on the foreseeability hazards, with those
222 Saunders and Mathieson, above n 201 at 57.
223 Saunders and Mathieson, above n 201 at 53.
who are informed assuming all risk and responsibility where those particular risks eventuate. Having well documented information on LIMs is an easy way for governments to monitor the dissemination of hazard data and information, especially if we choose to make the obtaining of LIMs a compulsory requirement of the sale and purchase of property in the future amendments. There could also be specific trigger points set by which the extinguishing of existing use rights will inevitably occur, that could also be carefully identified on LIMs. Whilst this dissertation wishes not to deal with government policy of if, when or where government might wish to compensate within this process, the LIM does provide a useful tool to help reduce or limit that public compensation and government responsibility if policy wishes to do so.
5. Final Thoughts
5.1. REGULATORY CREEP
The need for public compensation through the potential climate change adaptation fund will no doubt be high in the first few years of the CCAA. However, through tools such as restricting new development and information on LIMs, this should reduce over time. Further exposure to hazard risks will have been prevented, and equitable burden sharing will require homeowners to partly use their own initiative in adapting to sea-level rise and other hazard risks. As property at risk becomes undesirable within communities, the reaction of markets will also play an important role in this shift.224 This creates the potential for government compensation to be reduced over time through implementing a regulatory creep into future funding mechanisms. Closing any remaining Council liability gaps in future legislation will ensure funding occurs through appropriate and controlled policy arrangements.
5.2. CONCLUSION
This dissertation attempted to deal with a number of different questions within the topic of adaptation and managed retreat. Whilst I weaved in between inter-related ideas throughout each chapter, I settled on three wider foci that brought the efforts of this dissertation together.
Why do we need to ensure adaptation occurs through land-use controls?
I argued that there is a need to adapt due to the increasing risks posed by climate change. I show that dealing with these challenges in a pre-emptive fashion, protects economic, social, cultural and environmental values to a higher degree than the alternative of ‘reactive’ retreat.
Why is there homeowner resistance to adaptation, and particularly, managed retreat?
I described the social context, the value of society on property ownership, and the ‘rights-based’ arguments made by parties who challenge land-use controls. I argued that one way to improve
224 Nicoll, above n 104, at 123.
social cohesion is to ensure better access to science in order to close the gap in public understanding of risk. This is important because there is little utility in creating legislation if it cannot operate efficiently due to fierce resistance. The discussion on LIMs is one legal strategy I favour in helping to achieve this goal in public understanding.
Besides any climate change adaptation fund being created to compensate home-owners for land loss or controls in the future, what are some of the potential avenues to hold government liable to compensate within our current system?
I also made the argument that our current resource management system is not fit to adequately enable the implementation of adaptation strategies. Throughout the dissertation I suggest ways in which reform could improve this system. However, I specifically narrowed my focus on some of the avenues currently available to homeowners who attempt to hold Councils liable to compensate for land-use controls. I also look at liability to maintain CPW and for providing risk information on LIMs. There are few loopholes to receive compensation under our current system. If an adaptation fund in the preferred mechanism by which government wish to compensate affected homeowners, making specific exceptions to the s 85 general rule within the CCAA may be the necessary avenue.
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SEM Bloomfield "Stepping Back: a look at managed retreat in NZ" (paper presented to In Rajagopalan, P. & Andamon, M. M. (Ed.), Engaging Architectural Science: Meeting the Challenges of Higher Density : 52nd International Conference of the Architectural Science Association (ANZAScA), 2018).
J Boston and J Lawrence "Funding Climate Change Adaptation: the case for a new policy framework " (2018) 14(2) Policy Quarterly 40
Peter Burdon "What is Good Land Use? From Rights to Relationship" [2010] MelbULawRw 25; (2010) 34 MULR 708.
L Connelly and D Rowell "A History of the Term “Moral Hazard” " (2012) 79(4) Journal of Risk and Insurance 1051.
Ben France-Hudson "Surprisingly Social: Private Property and Environmental Management " (2017) 29(1) Journal of Environmental Law 101.
M.F. Frohlick, T.F. Smith, C Jacobson, P Fidelman, R.W. Carter, C Baldwin. "Towards adaptive coastal management Lessons from a legal strom in Byron Shire, Australia." (2019) 179 Ocean and Coastal Management.
M.T. Gibbs "Why is coastal retreat so hard to implement? Understanding the political risk of coastal adaptation pathways" (2016) 130 Ocean and Coastal Management 107.
Christina Hanna, Iain White and Bruce Glavovic "The Uncertainty Contagion: Revealing the
Interrelated, Cascading Uncertainties of Managed Retreat. " (2020) 12(2) Sustainability 736.
Bronwyn Hayward "Nowhere Far From the Sea: Political Challenges of Coastal Adaptation To Climate Change in New Zealand." (2008) 60 Political Science 47.
Catherine Iorns and Matthew Dicken "Climate Change Adaptation in the Environment Court: Revisiting the 2010 Holt case" (2019) 50 VUWLR.
Catherine Iorns "Reform of the Rules for the Rising Seas" (2021) 52 Vict. U. Wellington L. Rev. 837.
Phillip Joseph "The Environment, Property Rights and Public Choice Theory" (2003) 20(4) NZULR 408.
M Kawharu "Kaitiakitanga: A Māori Anthropological perspective of the Māori socio environmental ethic of resource management" (2000) 109(4) The Journal of the Polynesian Society 349.
Nathan P. Kettle and Kirstin Dow "The Role of Perceived Risk, Uncertainty, and Trust on Coastal Climate Change Adaptation Planning" (2014) 48(4) Environment and Behavior 579.
J Lawrence "Implications of climate change for New Zealand's natural hazards risk management" (2016) 12(3) Policy Quarterly 10.
J. Lawrence, S Owen, E Ryan, P Kench, R Bell, H Rennie, P Blackett and P Schneider. "Anticipating Staged Managed Retreat at the coastal margins. " ( 2018) (Coastal Management) Planning Quarterly 8.
P. Lujala, Lein, H., Rød, J.K. "Climate change, natural hazards, and risk perception: the role of proximity and personal experience." (2015) 20 Local Environment 489.
Chris Nicoll "Climate Induced Coastal Flooding: Spreading and Governing the Risk" (2020) NZBLQ 26 109.
Geoffrey Palmer "Westco Lagan v A-G" (2001) NZLJ 163.
Kathleen Ryan "Should the RMA include a Takings Regime" (1998) 2 NZJEL 63
Saunders W. S. H. Kaiser L.H. "Vision Matauranga research directions: opportunities for iwi and hapu management plans." (2021) 16(2) Kotuitui: New Zealand Journal of Social Sciences Online. 371.
E. Parliamentary and Government Material
Government Response to Report of the Environment Committee on the Inquiry on the Natural
and Built Environments Bill: Parliamentary Paper J.1.
Local Government NZ Climate change and Natural Hazard decision-making: A legal toolkit for councils (LGNZ, 2018).
Local Government NZ Review of Land Information Memorandums: Achieving best practice
(LGNZ, 2021).
Ministry for the Environment Adapt and thrive: Building a climate-resilient New Zealand.
(April 2022).
Ministry for the Environment Adapting to Climate Change in New Zealand. Recommendations from the Climate Change Adaptation Technical Working Group. Climate Change Adaptation Group. (2018).
Ministry for the Environment Aotearoa New Zealand’s first national adaptation plan
(Ministry for the Environment, 2022).
Ministry for the Environment Coastal Hazards and Climate Change. Guidance for Local Government. (December 2017).
Ministry for the Environment Draft national adaptation plan. (April 2022).
Ministry for the Environment National Climate Change Risk Assessment for Aotearoa New Zealand: Main report – Arotakenga Tūraru mō te Huringa Āhuarangi o Āotearoa: Pūrongo whakatōpū. (August 2020).
Ministry of Environment Case study: Challenges with implementing the Clifton to Tangoio Coastal Hazards Strategy 2120. Ministry of Environment and Hawkes Bay Regional Council partnership project. [NZ government report] (2019).
Natural and Built Environments Bill Consultation Draft 2021. New Zealand Coastal Policy Statement 2010.
New Zealand Government Climate Emergency Response Fund (Beehive, May 2022).
F. Reports
Report of the Resource Management Review Panel New Directions for Resource Management in New Zealand [RMA Report] (Ministry for the Environment, June 2020).
Clifton to Tangoio Coastal Hazards Strategy 2120. The Report of the Northern and Southern Cell Assessment Panels. Final Report. (2018).
Report and Decisions of the Hearing Commissioners IN THE MATTER of the Resource Management Act 1991 AND IN THE MATTER of Proposed Plan Change 1 to the Whakatāne District Plan Proposed Plan Change 17 to the Bay of Plenty Regional Natural Resources Plan (2020).
Raynor Asher Review and Recommendations for the clifton to tangoio coastal hazard strategy joint committee (HBRC, 2021).
Ministry for the Environment National Planning Standards: Zones and overlays - spatial layers in plans: Discussion paper C (2017).
Taylor BM Fletcher CS, Rambaldi AN, Harman BP, Heyenga S, Ganegodage KR, Lipkin F, McAllister RRJ Costs and coasts: an empirical assessment of physical and institutional climate adaptation pathways: Final Report (NCCARF, 2013).
GHD Sunset Beach (Okarahia) Preferred Options for Managed Retreat (Waikato District Council 2016)
Jonathan Boston Funding Climate Change Adaptation: The case for public compensation in the context of pre-emptive managed retreat (Ministry for the Environment, Wellington 2019).
Jonathan Boston and Judy Lawrence Climate Change Adaptation Funding Instruments
(WP17-05, Institute for Governance and Policy Studies, 2017).
Brookfields Lawyers Legal Opinion - Coastal Erosion and Liability Issues (2021).
B France-Hudson, E Grace and MJ Kilvington Reducing risk through the management of existing uses: tensions under the RMA (GNS Science Report 2019/55, 2019).
Simpson Grierson Liability and related risks for Councils - in relation to the issue of LIMs containing natural hazard information (GNS Science, Oct 2015).
Simpson Grierson Ability to stop or limit the provision of services infrastructure and potential liability consequences (Feb 2018).
Simpson Grierson Councils’ Ability to Limit Development in Natural Hazard Areas (Local
Government New Zealand Feb 2018).
Grace E; France-Hudson B; Kilvington M Managing existing uses in areas at high risk from natural hazards: an issues paper (GNS Science 2018).
Judy Lawrence, Jonathan Boston, Robert Bell, Sam Olufson, Rick Kool, Matthew Hardcastle, and Adolf StroombergenImplementing Pre-Emptive Managed Retreat: Constraints and Novel Insights. 6:66–80 (2020)
Insurance Council of New Zealand Protecting New Zealand From Natural Hazards. An Insurance Council perspective on ensuring New Zealand is better protected from Natural Hazards (October 2014).
Catherine Iorns and Jesse Watts Adaptation to Sea-level Rise: Local Government Liability Issues (Deep South National Science Challenge 2019).
Lehmann R.J. Perverse Incentives and Preparing for Managed Retreat: The Case to Reform the NFIP (International Center for Law and Economics, 2021).
Tony Matthews Climate Change Adaptation in Urban Systems: Strategies for Planning Regimes (Griffith University 2011).
MCDEM National Hazardscape Report. (Officials’ Committee for Domestic and External Security Coordination Department of the Prime Minister and Cabinet, 2007).
R Paulik, Craig, H and Collins, D. New Zealand Fluvial and Pluvial Flood Exposure. (NIWA,
2019).
W.S.A Saunders and J.E. Mathieson Out on a LIM: the role of Land Information Memorandum in natural hazard management (GNS Science, 2016).
Severinsen G and Peart R Strategic Planning Act and Funding. (Environmental Defence Society, 2021).
Saunders W.S.A Setting the Scene: The Role of Iwi Management Plans in Natural Hazard Management. (GNS Science Consultancy Report, 2017).
Toitu Te Whenua: Land Information New Zealand Guide for Landowners: What to expect when your land is acquired under the PWA 1981 (2021).
Bryce Wilkinson A Primer on Property Rights, Takings and Compensation (New Zealand
Business Roundtable, 2008).
Iain White, Bruce Glavovic and Christina Hanna Managed retreat in New Zealand: revealing the terminology, approaches and direction of local planning instruments. Report for the National Science Challenge: Resilience to Nature's Challenges. (University of Waikato, New Zealand, 2017).
G. Treaties and International Materials
Conference of the Parties, Adoption of the Paris Agreement, U.N. Doc. FCCC/CP/2015/L.9/Rev/1 (Dec. 12, 2015).
R.J.T. Klein, S. Huq, F. Denton, T.E. Downing, R.G. Richels, J.B. Robinson, F.L. Toth "Inter-relationships between adaptation and mitigation " in O.F. Canziani M.L. Parry, J.P. Palutikof, P.J. van der Linden and C.E. Hanson (ed) Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, (Cambridge University Press, Cambridge, UK, 2007) 745.
IPCC 2022: Summary for Policy Makers. (ed) In: Climate Change 2022: Impacts, Adaptation,
and Vulnerability. Working Group II contribution to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (In Press ed, Cambridge University Press ).
H. Internet and Other Resources
Affidavit of Rick Whalley, Rachel Whalley and Pamela Whalley (December 5th 2020). “Clifton to Tangoio Coastal Management Strategy 2120” (2022) Hawkes Bay Coast
<www.hbcoast.co.nz/>.
Craig Cameron "Report to Council: Haumoana Seawall Protection - H18 " (paper presented to
Hastings District Council: Council Meeting, 2022).
Ged Cann "One-third of Kāpiti Coast properties in hazard lines battle have since been sold" (2017) https://www.stuff.co.nz/environment/99165184/onethird-of-kpiti-coast-properties-in- hazard-lines-battle-have-since-been-sold
S Crosby "Managed retreat framework should be developed by councils" (2022) https://www.lgnz.co.nz/news-and-media/2022-media-releases/tmanaged-retreat-framework- should-be-developed-by-councils
Aaron van Delden "Beachfront residents left in the dark over erosion plan " (2020) https://www.rnz.co.nz/news/national/420190/beachfront-residents-left-in-the-dark-over- erosion-plan
Zac Fleming "‘This is going to set a precedent’ - Council applying to evict homeowners " (2017) https://www.rnz.co.nz/national/programmes/checkpoint/audio/201851000/this-is- going-to-set-a-precedent-council-applying-to-evict-homeowners
Eloise Gibson "Playing chicken with the government on rising seas" (8 Dec 2018) https://www.newsroom.co.nz/2018/12/05/351236/playing-chicken-with-the-government-on- rising-seas
Georgia-May Gilbertson "‘Managed retreat’ still an option for Gisborne beach houses hit by large waves" (2019) https://www.stuff.co.nz/dominion-post/news/115677599/managed- retreat-still-an-option-for-gisborne-beach-houses-hit-by-large-waves
Kate Green "Nine years ago, Kāpiti Coast residents drew a line the insane. Now the council is trying again to draw hazard lines of its own " (2021) https://www.stuff.co.nz/environment/climate-news/126375538/nine-years-ago-kpiti-coast- residents-drew-a-line-in-the-sand-now-the-council-is-trying-again-to-draw-hazard-lines-of- its-own
Gen Less "How New Zealanders feel about what we’re doing on climate change" (2021) https://genless.govt.nz/stories/how-new-zealanders-feel-and-what-were-doing-on-climate- change/ -
:~:text=EECA's%20quarterly%20consumer%20monitors1,t%20becoming%20any%20more% 20urgent
Gisborne District Council Wainui Beach Erosion Management Strategy. (2014).
Nikki Macdonald "Moving day at Matata - the end of one family’s fight against managed retreat " (2020) https://www.stuff.co.nz/environment/123216408/moving-day-at-matat--the-end-of-one- familys-fight-against-managed-retreat
Nikki Macdonald "Sad final farewares for Matata managed retreat fighters " (2022) https://www.stuff.co.nz/national/128203042/sad-final-farewells-for-matat-managed-retreat- fighters
T McClure "Forced retreat: one New Zealand town’s fate highlights coming fight over climate adaptation" (2021) https://www.theguardian.com/world/2021/oct/30/forced-retreat- one-new-zealand-towns-fate-highlights-coming-fight-over-climate-adaptation
Ministry for the Environment "Resource management system reform" (2022) https://environment.govt.nz/what-government-is-doing/areas-of-work/rma/resource- management-system-reform/
Anna Mulkern "Managed retreat: Unpopular, expensive and not going away" (11 May 2021)
https://www.eenews.net/articles/managed-retreat-unpopular-expensive-and-not-going-away/
National Science Challenges: Resilience to Nature’s Challenges "Accelerating our resilience
to natural hazards " (2022) GNS Science https://resiliencechallenge.nz/
Keith Newman "Cape View Protection (part 1) - Lost homes have history " (2022) www.savethecapecoast.org.nz/single-post/cape-view-protection-part-1-lost-homes-have- history
NZ SeaRise: Te Tai Pari O Aotearoa (2022) www.searise.nz
Marty Sharpe "Cost of retreating from Hawke’s Bay Coast put at $2 billion, but who pays is not decided " (2022) https://www.stuff.co.nz/environment/climate-news/129249105/cost-of- retreating-from-hawkes-bay-coast-put-at-2-billion-but-who-pays-is-not-decided
Stats NZ "Housing in Aotearoa: 2020. " (2020) https://www.stats.govt.nz/reports/housing-in- aotearoa-2020
United States Environmental Protection Agency "Climate Change Indicators: Sea Level " (2021) www.epa.gov/climate-indicators/climate-change-indicators-sea-level - ref4
Whakatane District Council "Awatarariki Managed Retreat Programme " (2020)
https://www.whakatane.govt.nz/residents/awatarariki-managed-retreat-programme
Francis Wilkinson "We Will All End Up Paying for Someone Else’s Beach House" (2022) https://www.nytimes.com/2022/08/08/opinion/climate-change-beach-house-erosion.html
World Meteorological Organization "Weather-related disasters increase over past 50 years, causing more damage but fewer deaths " (2021) https://public.wmo.int/en/media/press- release/weather-related-disasters-increase-over-past-50-years-causing-more-damage-fewer
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