11 July 2017 Internalisation of effects Part 2 and section 17 avoid remedy mitigate RMA not a no effects statute Internalisation as far as possible Winstone Aggregates Limited v Papakura District Council ID: 616293
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Slide1
Reverse sensitivity
11 July 2017Slide2
Internalisation
of effects
Part 2 and section 17 - avoid, remedy, mitigate
RMA not a no effects statuteInternalisation as far as possible (Winstone Aggregates Limited v Papakura District Council )
11 July 2017
Reverse sensitivity
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Reverse sensitivity - the concept
The legal vulnerability of an established activity to
complaint from
a new land use.The effects of the existence of sensitive activities on other activities in their vicinity; particularly by leading to restraints in the carrying on of those activities.
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Reverse sensitivity
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When does it arise?
Airports
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Reverse sensitivity
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When does it arise?
Airports
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Reverse sensitivity
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When does it arise?
Quarries
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Reverse sensitivity
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When does it arise?
Ports
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Reverse sensitivity
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When does it arise?
Farming
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Reverse sensitivity
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When does it arise?
Stadia
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Reverse sensitivity
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When does it arise?
Electricity transmission lines
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Reverse sensitivity
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When does it arise?
Industrial activities
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Reverse sensitivity
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When is reverse sensitivity relevant?
Reverse sensitivity is an effect
Setting rules
in District Planseg Auckland Unitary Plan rules around Auckland Airport, Quarries, Port, transmission lines, etcNotification of resource consents
Relevant consideration (Ports of Auckland v Auckland City Council)
Substantive decisions on resource consents
eg
Independent News
Ltd,
Gargiulo
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Reverse sensitivity
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Some of the issues
Not many people get it
Houses, houses, houses…
Providing for continuation of existing operation or some degree of growth or expansion?Who pays?11 July 2017Reverse sensitivity
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Use of buffers
Use of
buffers (eg
land ownership)Drury Quarry11 July 2017Reverse sensitivity
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Opposing r
esource
consent applicationsExisting business opposes resource consent applications as being entirely inappropriateIndependent News & AIAL v MCC - 349 apartments near Auckland International AirportGargiulo
v CCC – subdivision near Christchurch Airport
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Resource
consent
conditions
Existing activity accepts new use with consent conditions (ie requiring acoustic insulation) and/or no complaints covenantsWritten approval mechanisms and/or Submission on notified applicationNegotiated on appeal – consent order
Imposed by the Court
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Reverse sensitivity
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No Complaints
covenants
Can be offered up as part of negotiations
Can be imposed as a condition of consent where agreement has been reachedCan be created independently of the resource management process11 July 2017
Reverse sensitivity
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No Complaints covenants - pros
Advantages:
Flag to potential purchasers
Bind any successor in titleCan be enforced to prevent complaints11 July 2017
Reverse sensitivity
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No Complaints covenants - enforceability
Enforceability:
Suggestion of public policy and Bill of Rights
limitations - Christchurch International Airport LimitedHowever, held to be enforceable in South Pacific Tyres v Powerland
and Colonial Vineyards v Marlborough District Council
If imposed by a condition, it will need to meet the RMA/Newbury tests
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Reverse sensitivity
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Takeaways
RMA is not a no effects statute
Urban sprawl and intensification create land use conflict
Reverse sensitivity is often ignored by decision-makersBut it is incredibly important for major industry, infrastructure, etc – the costs of ignoring it would be monumental!Best to be addressed at plan-making stage
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