A list of questions to Council planners.
Answers received in August 2015.
Our Questions are in Blue. Council answers in Black.
(Council contact: Helen Beaumont)
Questions emailed through to
Christchurch City Council on June 5 2015
Question 1
I have been looking at Existing Use Rights in more detail because I am very seriously concerned about insurance companies asking for exemptions to exercise these rights in the coastal areas…
Could you please clarify for me which of the following earthquake introduced hazards can be ignored to allow the exercise of existing use rights:
- Slope stability on hills
- Rock fall hazard
- Cliff stability hazards
- Landslides
- Crust thinning
- Dangerously high groundwater
- Subsidence risk
- High hazards (Multiple hazards)
- Inundation
- Flash flooding
- Liquefaction
- Erosion.”
Answer 1
Existing use rights are available under section 10 of the Resource Management Act 1991. Land use activities that contravene a rule in district plan (or a proposed plan) may continue if the use was lawfully established and the effects of the use are the same or similar in character scale and intensity. Any rules in the district plan addressing the natural hazards listed above cannot be applied if they were not in place when the activity was lawfully established.
However under the Building Act 2004 the concept of existing use rights does not apply. Section 71 of the Building Act states the following:
“(1) A building consent authority must refuse to grant a building consent for construction of a building, or major alterations to a building, if—
- (a) the land on which the building work is to be carried out is subject or is likely to be subject to 1 or more natural hazards; or
- (b) the building work is likely to accelerate, worsen, or result in a natural hazard on that land or any other property.
(2) Subsection (1) does not apply if the building consent authority is satisfied that adequate provision has been or will be made to—
- (a) protect the land, building work, or other property referred to in that subsection from the natural hazard or hazards; or
- (b) restore any damage to that land or other property as a result of the building work.
(3) In this section and sections 72 to 74, natural hazard means any of the following:
- (a) erosion (including coastal erosion, bank erosion, and sheet erosion):
- (b) falling debris (including soil, rock, snow, and ice):
- (c) subsidence:
- (d) inundation (including flooding, overland flow, storm surge, tidal effects, and ponding):
- (e) slippage.”
Question 2
“Planners have a statutory obligation to protect ratepayers and ensure sustainable development…The Ministry for the Environment also publishes a “Coastal Hazards and Climate Change: Guidance Manual 2008” for planners…And Regional policy statements, regional coastal (environment) plans and district plans are prepared under the RMA and must give effect to national policy statements and the NZCPS (RMA sections 62(3), 67(3)I, 75(3).)…While I can see that the Regional Policy Statement has recently undergone changes…I question how the Council planners will deliver their statutory obligations under NZCPS to protect people from 1/100-year event as the one that occurred in Dunedin this week?”
Answer 2
The primary mechanism to address the risk of flooding in the proposed Christchurch Replacement District Plan (pCRDP) is the mapping of Flood Management Areas (FMAs) with floor level controls. These afford greater protection than provision of a 1 in 100 year event and control floor heights of new buildings, filling and excavation to mitigate the risk of flooding from a 1 in 200 year flood event.
Further provisions are proposed in Stage 3 to address coastal hazards based on modelling of coastal erosion and coastal inundation taking into account climate change and sea level rise over the next 50 and 100 years.
Question 3
“Which hazard maps are the current planning maps applying to land that has subsided below tidemark and below the Mean High Water Springs and subject to tidal inundation of saltwater?”
Answer 3
Where land is below Mean High Water Springs (MHWS) and is now part of the coastal marine area there will be no planning maps and no provisions in the pCRDP. However where land has subsided below MHWS and remains in the jurisdiction of Council (such as the areas upstream of the mouth of the Avon River) the district plan maps and associated provisions will apply.
There are a mix of operative and proposed provisions at present. The operative Christchurch City Plan (CCP) provisions include FMAs which have been revised. These new provisions in the pCRDP have no effect until beyond appeal. The Regional Coastal Environment Plan mapping and provisions for coastal erosion are operative.
There are also proposed coastal hazard provisions which have been notified in the Stage 3 Natural Hazards proposal. Hearings are set down for February 2016 and decisions not expected before April 2016.
Question 4
What protections are in place in the interim after the changes have been made to the regional hazards maps and till the earthquake introduced hazards are identified as a part of the district plan update? When will these new hazard maps be implemented?
Answer 4
The coastal hazard mapping and associated provisions in the Regional Coastal Environment Plan remain operative until the proposed pCRDP provisons are made operative.
Question 5
“According to the RMA 86(B) (3) (a), any notified hazard relating to water is implemented upon notification. Including the 12.3 FFL. Is there any legislation that shows that hazards that affect people life safety in coastal areas can by pass this legal requirement?”
Answer 5
Section 86B specifies when rules in proposed plans and changes have legal effect.
86B (3) Any rule in a proposed plan has immediate legal effect if it the rule –
- Protects or relates to water, air, or soil (for soil conservation)
The council received a legal opinion in 2010 in respect to a plan change on flood hazard (Plan Change 32). In that legal opinion the question of whether the words “protects or relates to water” in Section 86B(3)(a) of the RMA results in rules in the Proposed Plan Change taking immediate legal effect. A summary of that legal opinion follows:
“We do not consider that the rules in PC32 protect or relate to water. They relate to and are for the purpose of protecting people and property from the natural hazard of flooding. In our view, the words “protects or relates to water” in Section 86B (3)(a) are intended to refer to activities which come within sections 14 and 15 of the RMA, rather than activities which come within section 9 of the RMA.”
For clarification, we note that section 9 of the RMA relates to restrictions on the use of land, while section 14 and 15 relate to restrictions relating to water (taking, using and damming for example) and discharges of contaminants into the environment (into water, air or land) respectively.
Question 6
“How can EUR be used where zoning decisions have not even been made after an earthquake? Please confirm if existing use rights can apply when zoning decisions have not yet been made and where the hazards caused by the earthquakes have not yet been mapped by planners.”
Answer 6
Existing use rights provisions of section 10 of the Resource Management Act 1991 are designed to protect lawfully established land use activities.
Question 7
“The Tidal Barrier is of concern… Firstly; these tidal barriers were rejected by the Ministry of the Environment in 2007 as a potential ecological disaster. Secondly; the cost is estimated to be in the range of 200m to 1.2bn. No budget has been seen for this. Where is the budget for this large project? Who will pay for it if it eventuates?
Answer 7
A tidal barrier is being investigated as one option for addressing the increased flood risk as a result of the Canterbury earthquakes. A pre-feasibility study has been commissioned by the Horizontal Infrastructure Governance Group (made up of the Christchurch City Council, the Canterbury Earthquakes Recovery Authority and the New Zealand Transport Agency) to assess the technical feasibility of building such a structure and to estimate the costs. If this project proceeds to a full feasibility study the budget would be debated as part of a future Council Long Term Plan.
Question 8
“Ecan has objected that they have not been consulted on this project. How can this be if Ecan has been in charge of the CMA till a month ago?”
If this proposal was rejected in 2007 what is it that makes it more feasible today when the land lies lower, more pumping is required, active fault lines identified and more extreme events are proven to be occurring. Not to mention the financial strains on Council.”
Answer 8
Environment Canterbury staff have been involved in the initial scoping of the tidal barrier investigation. They will be sent a copy of the final tidal barrier report now that the peer review work has been completed. Environment Canterbury does have statutory responsibility for activities seaward of the CMA boundary and would be expected to have role in consenting if the project went ahead.
Questions emailed through to
Christchurch City Council on August 3 2015
treated as a LGOIMA request
Question 1a: The new Hold Zone, is council planning to buy uninsurable properties – if so how will this be done? Public works act? LINZ/new legislation? Converting houses to relocatable?
Response: The Council is not aware of any property owners who have been denied insurance and has no plans to buy any properties. There is no ‘Hold Zone’ in the proposed district plan provisions.
Question 2a: What structural repairs will be allowed on land that is subject to 50 year erosion (why exemptions and what are the consequences)
Response: The Stage Three proposals in the Proposed Replacement Christchurch District Plan seek to reduce risk to people, property and critical infrastructure in areas affected by coastal hazards by:
- avoiding subdivision and development in areas at high risk of coastal erosion and sea water inundation over the next 50 years;
- controlling subdivision and development in areas that will be affected by coastal erosion and sea water inundation in the 50-100 year period; and
- enabling the modification of existing buildings to reduce the risk of coastal erosion and sea water inundation over the next 100 years.
Existing structures may be repaired and new homes rebuilt where the property owner has existing use rights under the Resource Management Act.
Question 3a: Ground Improvements of erosion prone land (CCC/BCA exemptions – consequences), If not exempted what is council liability?
Response: This is not a request for information held by the Council. It seeks a legal opinion/advice.
Question 4a: If we cannot get an insurance for erosion and we cannot hold a mortgage, what does council propose?
Response: As above, Council is not aware of any property owners who have been denied insurance.
Question 5a: Tidal Barriers, What if this is not feasible? Who carries the loss? Some land is at risk of imminent loss due to crust thinning and rely on area wide solution for the land to be habitable into the future.
Response: A tidal barrier is being investigated as one option for addressing the increased flood risk as a result of the Canterbury earthquakes. A pre-feasibility study has been commissioned by the Horizontal Infrastructure Governance Group (made up of the Christchurch City Council, the Canterbury Earthquakes Recovery Authority and the New Zealand Transport Agency) to assess the technical feasibility of building such a structure and to estimate the costs. If this project proceeds to a full feasibility study the budget would be debated as part of a future Council Long Term Plan.
Question 6a: Erosion maps operative, how will the earthquake damaged land be planned for. Why did ECan delete the erosion hazards of this map published last year?
Response: This question has been transferred to ECan to answer, as provided for in section 12 of the Local Government Official Information and Meetings Act 1987.
Question 7a: Managed retreat, (we see signals of forced retreat (by stealth), insurance companies and banks are retreating. what is the long term plan for the residents). (When can we expect the banks to start foreclosing on properties)
Response: This is not a request for information held by Council. It seeks an opinion on the response of the banking industry to coastal hazards.
Question 8a: Mean High Water Springs – The new CCC boundaries. How will this work? Ratepayers/CCC
Response: Where land is below Mean High Water Springs (MHWS) and is now part of the Coastal Marine Area (CMA) there will be no planning maps and no provisions in the proposed Christchurch Replacement District Plan (pCRDP). However where land has subsided below MHWS and remains in the jurisdiction of Council (such as the areas upstream of the mouth of the Avon River) the district plan maps and associated provisions will apply.
There are a mix of operative and proposed provisions at present. The operative Christchurch City Plan provisions include Flood Management Areas which have been revised. These new rules in the pCRDP have no effect until all appeals are resolved. The Regional Coastal Environment Plan mapping and provisions for coastal erosion remain operative.
There are also proposed coastal hazard provisions which have been notified in the Stage 3 Natural Hazards proposal of the pCRDP. Hearings are set down for February 2016 and decisions are not expected before April 2016.
Council is working with Environment Canterbury and the Department of Conservation to review the delineation of the mouths of both the Avon and Heathcote Rivers which has a consequential impact on the extent of the Coastal Marine Area in the lower reaches of these rivers. The technical work has been completed and we are now investigating the most appropriate legal mechanism to update the extent and mapping of Coastal Marine Area.
Question 9a: What is council liability if hazards are not registered on property?
Response: This is not a request for information held by the Council. It seeks a legal opinion/advice.
Question 10a: What is a PIM?
Response: A project information memorandum (PIM) is a report issued by the Council upon request before, or with, a building consent. It contains information the Council has about the property that is likely to be relevant to a building proposal, such as sewer connections, existing drainage, flood, and hazards such as mass movement and land contamination.
A PIM is generated as a new document on request, and only includes current, relevant information about a property. If you are planning to do building work, a PIM will tell you what authorisations may be required, other than the building consent, such as a resource consent or service connections (water, sewer); what you need to get that authorisation, and what effect they may have on the design of the building work.
Question 11a: What happens if a PIM is issued before hazard maps are made operative?
Response: PIMs are required to include information likely to be relevant to the proposed building work. This includes identifying any potential natural hazards (as a special feature of the land concerned) that are known to the Council, even if those hazards are not currently included in the Council’s District Plan.
Question 12a: Can an insurance company use an out of date PIM based on ground conditions before the earthquakes?
Response: The Council has no control over what documents an insurance company may use for any purpose. An owner is not required to obtain a PIM before carrying out any building work. However, if a PIM is not obtained, then where a building consent application is made, the Council still carries out the same assessments as if a PIM application had been made, for the purposes of considering the building consent application.
Question 13a: Who is liable if the property sinks due to incorrect hazard information?
Response: This is not a request for information held by the Council. It seeks a legal opinion/advice.
Questions emailed through to
Christchurch City Council on August 5 2015
treated as a LGOIMA request
Q1) We would appreciate the paper of the legal opinion in regard to the soil erosion (RMA) Reference (Question 5)
A1) The Council has not sought a legal opinion on soil erosion with respect to RMA matters.
Q2) There is a map of identified soil erosion risk that Ecan published last year. What is it with this map from the territorial authority? Is it operational? If not then why not?
A2) This question has been transferred to ECan to answer, as provided for in section 12 of the Local Government Official Information and Meetings Act 1987.
Q3) It would be appreciated if you could provide us with some explanations on EUR – Jack and Pack in this case. This is an example, please take as such. The building was demolished more than 12 months ago, let’s assume the insurance company requests a Jack and Pack. Let’s assume 11 months have passed and let’s assume a resource consent is not required.
EUR – Jack and Pack in this case. This is an example, please take as such. The building was demolished more than 12 months ago, let’s assume the insurance company requests a Jack and Pack. Let’s assume 11 months have passed and let’s assume a resource consent is not required.
On the other side of the river (Outside the CMA) the groundwater has been measured at 10cm from the surface (residential /peoples homes)
Insurance companies are requesting and council is approving EUR, building at 1976 floor levels.
A3) It’s not appropriate for the Council to comment on a hypothetical scenario with so many variables. Other unknown influencing factors mean we could not give an accurate answer.
We can provide an explanation of EUR (existing use rights). Existing use rights are available under section 10 of the Resource Management Act 1991. Land use activities that contravene a rule in district plan (or a proposed plan) may continue if the use was lawfully established and the effects of the use are the same or similar in character scale and intensity. Any rules in the district plan addressing the natural hazards that you have listed cannot be applied if they were not in place when the activity was lawfully established.
However under the Building Act 2004 the concept of existing use rights does not apply. Section 71 of the Building Act states the following:
“(1) A building consent authority must refuse to grant a building consent for construction of a building, or major alterations to a building, if —
- (a) the land on which the building work is to be carried out is subject or is likely to be subject to 1 or more natural hazards; or
- (b) the building work is likely to accelerate, worsen, or result in a natural hazard on that land or any other property.
(2) Subsection (1) does not apply if the building consent authority is satisfied that adequate provision has been or will be made to—
- (a) protect the land, building work, or other property referred to in that subsection from the natural hazard or hazards; or
- (b) restore any damage to that land or other property as a result of the building work.
(3) In this section and sections 72 to 74, natural hazard means any of the
following:
- (a) erosion (including coastal erosion, bank erosion, and sheet erosion):
- (b) falling debris (including soil, rock, snow, and ice):
- (c) subsidence:
- (d) inundation (including flooding, overland flow, storm surge, tidal effects, and ponding):
- (e) slippage.”
Rebuilds therefore require a building consent. Floor levels for new dwellings would need to comply with the modern building code and will be set using the most up to date modelling information.
Q4) Our understanding is that no erosion risk applies as the map of erosion risk has not been made operational. (Since 2011). Land will not be subject to erosion risk till April 2016, when estimations are that 95% of insurance claims will be settled.
As per the “grandfather” request of the insurance companies (Stage 2 District plan), an old PIM report can be used for a new building consent. I am puzzled how I am to communicate how this system of risk transfer works.
A4) The coastal hazard mapping and associated provisions in the Regional Coastal Environment Plan remain operative until the proposed pCRDP provisons are made operative.
The Council has no control over what documents an insurance company may use for any purpose. An owner is not required to obtain a PIM before carrying out any building work. However, if a PIM is not obtained, then where a building consent application is made, the Council still carries out the same assessments as if a PIM application had been made, for the purposes of considering the building consent application.
Ends