Wednesday, June 12, 2013

Resource consents & the Shirley case

Here is a diagram of the resource consent process.

Here is a discussion of the process of determining if a consent is notified or not.

Determining whether effects are more than minor means applying the 'permitted baseline" ie disregarding effects that are permitted by the plan.

95DConsent authority decides if adverse effects likely to be more than minor
  • A consent authority that is deciding, for the purpose of section 95A(2)(a), whether an activity will have or is likely to have adverse effects on the environment that are more than minor—
    • (a)must disregard any effects on persons who own or occupy—
      • (i)the land in, on, or over which the activity will occur; or
      • (ii)any land adjacent to that land; and
    • (b)may disregard an adverse effect of the activity if a rule or national environmental standard permits an activity with that effect.

This is repeated in section 104(2) when determining whether consent should issue or not:

(2)"When forming an opinion for the purposes of subsection (1)(a), a consent authority may disregard an adverse effect of the activity on the environment if a national environmental standard or the plan permits an activity with that effect."

Here is a detailed discussion of that provision.

The Courts have also determined that existing resource consents, even if not yet exercised, form part of the existing environment under section 104(1): Queenstown-Lakes District Council v Hawthorn Estate

"… the word “environment” embraces the future state of the environment as it might be modified by the utilisation of rights to carry out permitted activity under a district plan. It also includes the environment as it might be modified by the implementation of resource consents which have been granted at the time a particular application is considered, where it appears likely that those resource consents will be implemented."
104Consideration of applications
  • (1)When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2, have regard to–
    • (a)any actual and potential effects on the environment of allowing the activity;

Here is a discussion of the Shirley case.


Monday, April 29, 2013

Seminars on resource consent applications

Kate's seminar concerned a two lot subdivision in Lincoln

Sophia's seminar concerned a mixed use development across the road from the hospital in Cameron Road Tauranga

Sunday, April 14, 2013

How plans get made

15 April

How plans get made - why is it important? Auckland!

The standard planning process

Summary - when sections of plans take effect

The relevant sections of the Act

Resource Management Reform Bill 2012
- new section 32 - why?? Shades of the Regulatory Standards Bill?
- Amendments for Auckland Council Unitary Planning process

Legal concerns about the bill

Existing uses & certificate of compliance - why you dont have to get a fresh resource consent for your house every time the plan changes

- notification and non-notification
- how decisions are made on consents - section 104

- Boon case. Notes on the Boon case are here:

- Shirley case

- Expert Code of Conduct

Planning from a planner - Dave Armour talk - with notes

8 April 2013

We are very lucky to have a senior planner Dave Armour coming to talk to the class on Monday. Dave's CV is attached.

Its a brilliant opportunity to hear from someone who has been working from 1977 and has seen it all, the old system, the introduction of the RMA and its operation over its entire life.

Dave is going to take you through:

- Part 3 of the Act and the roles of regional and district and city councils
- the hierarchy of plans ie the top down approach
- plan objectives, policies and rules an their importance
- the different types of rules, permitted, discretionary, non-complying etc

His most recent job has been looking at Kapiti Coast's district plan and in particular the issues around retreat from the coast. He has a lifetime of great examples of how this system operates, so take advantage and ask questions.

Here are resources you can read in advance to get the most out of the class:

From the EDS - the hierarchy of plans. Read these pages as a basic introduction to planning.

Here is the planning consent report on a replacement coastal dwelling that Dave talked about in class.

Here are the notes for Dave's talk.


Auckland plan
Right now we are in the middle of developing the biggest plan in the country, the Auckland unitary plan

See the draft, starting here. Watch the introductory video. See how many private cars you can count in the part where the video talks about the future. I wonder if Steven Joyce has seen it. We will discuss at our next lecture why the government doesnt want the Auckland Unitary to become immediately operative (and what that even means).

This page here is a really useful one for looking through the plan. Click on the left hand side to open up different sections and see how they work.

Also useful is this brand new experimental planning tool. Use it to find out if you need resource consent to demolish the building at 25 Queen Street and build new residential units.


For next week:

- how plans get made - the submissions and cross submissions process, how plans overlap (and why this has become critically important in Auckland)
- existing uses & certificate of compliance - why you dont have to get a fresh resource consent for your house every time the plan changes
- notification and non-notification
- how decisions are made on consents
- Boon case
- Shirley case


Tuesday, March 26, 2013

Common law actions & background to current NZ environmental laws


Common law actions

Torts - nuisance, negligence, trepass

Land law


Background
We looked at the idea that the common law is like concrete floor of the building. Statutes are an overlay on that. Sometimes it completely replaces the common law while the statute is in existence eg the common law right to sue for personal injury is removed by ACC legislation. In the case of environmental law - in particular the RMA 1991 - the common law co-exists with the RMA.

Land law 

Key aspects are:

- real property versus moveable property
- doctrine of tenure - which arises from feudal system put in place by William the Conqueror. All land is ultimately held by the Crown.
- Owners dont own the land itself but a bundle of rights (ownership of the land itself is known as allodial ownership).
- We have a Torrens system for recording land ownership on a central computer register - more info here:  

http://www.linz.govt.nz/survey-titles/land-registration/overview-land-registration
http://www.landonline.govt.nz/

- had a brief look at easements (eg rights of way) and covenants (eg positive requirements to use land in certain ways, not to cut indigenous bush on the land, no pets, house must be a certain value etc). 

Common law does not protect views - although it will protect light.

Trees? Special regime for them. See this section of Property Law Act
333Court may order removal or trimming of trees or removal or alteration of structures
  • (1)A court may, on an application under section 334, order an owner or occupier of land on which a structure is erected or a tree is growing or standing—
    • (a)to remove, repair, or alter the structure; or
    • (b)to remove or trim the tree.
    (2)An order may be made under subsection (1) whether or not the risk, obstruction, or interference that the structure or tree is causing—
    • (a)constitutes a legal nuisance; and
    • (b)could be the subject of a proceeding otherwise than under this section.




Common law tort actions and the environment

While common law can develop to meet new environmental challenges, a key advantage of statutes is that they can require people to act well before possible damage occurs.

We examined the torts of negligence and nuisance in some detail

Negligence - requirements being duty of care, foreseeability and damage. How Donoghue v Stevenson extended negligence through the extension of the duty of care. Examples of a council officer wrongly advising a person about whether they need to get a resource consent. Land Informaition Memoranda - how they now come with extensive disclaimers - to avoid negligence claims.

Nuisance
The requirements are 1) an interest in land and 2) interference in quiet enjoyment of that land.

We discussed the Canary Wharf case of interference in TV signals, THose who were not allowed to sue because they had no interest in land.

Rylands and Fletcher case seemed to say that for some cases of nuisance forseeability was not required. Cambridge water case changes that. Foreseeabiliity is a requirement of all nuisance actions.

Reverse sensitivity discussed eg houses built near a cricket pitch. eg new apartments near ports of Auckland. New houses near airports. Nuisance law says that coming to a nuisance does not excuse the nuisance. The incoming person has to accept the general environment ie cant insist on rural quietness in a city - but can still complain about obvious noisy activities eg bands in bars late at night. Planning law under the RMA has to accommodate the reuqirements of nuisance law ie plans cant allow activities that would otherwise be nuisances. So airports and ports cant prevent new housing near them, but planning rules can require houses to at least fit sound proof glass.

Trespass
Can be useful as a way of suing for things like spray drift ie objects intruding on your land - not just people.


Background to our current environmental law

The term “environment” in the sense of the biophysical environment is surprisingly recent.

Etymology of environment
See this useful timeline of events:
A key moment was the release of Limits to Growth - using the World3 computer model:

1972 Stockholm conference on the Human environment

At that conference was laid the groundwork for the developing / developed split that continues today into instruments such as the Kyoto protocol.

1987 Brundtland report - Our Common Future
1992 - Agenda 21

Note that a key focus of Agenda 21 is the promotion of free trade as the means to boost economic growth in developing countries, so that they may undergo demographic transition and reduce birth rates and their impact on the environment. This transition is meant to happen utilising technologies of developed countries so that the types of pollution of the old industrial revolution do not occur.
A brilliant site to explore the idea of demographic transaction and the stunning speed of transition in some countries. It raises the question, is the idea of developed and developing countries not irrelevant? 


20 minute talk by Hans Rosling.

1992 United Nations Framework Agreement on Climate Change.

http://unfccc.int/essential_background/convention/background/items/1353.php

Note how it preserves the developed/ developing principle

1992 United Nations Framework Agreement on Climate Change.
ARTICLE 2:
OBJECTIVE
“The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, … stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.”

http://unfccc.int/essential_background/convention/background/items/1353.php

Text of Kyoto protocol






Wednesday, March 13, 2013

Lecture Programme 2013

March

4
What is law
Theories of law.
The rule of law
What is environmental law?
11
NZ constitution, common law vs statute law, Parliamentary sovereignty, statutory interpretation, key environmental legislation, the courts system and place of Environment Court in it. Appeals on fact and law, judicial review. Role of local authorities. The EPA and Boards of Inquiry. Parliamentary Commissioner for the Environment
18
Contract law, land law, tort law
25
The RMA – an overview. Sustainable management and Part II


EASTER BREAK 28 March to 4 April 2013

 

April

8
RMA – planning regime
15
RMA – planning regime continued

MID TRIMESTER BREAK 22-29 April


29
RMA – consents / designations regime

 

May

6
RMA – consents / designations regime continued
13
RMA – Maori
20
RMA – enforcement regime
27
Revision session

 3 June - Queens Birthday holiday


TRIMESTER ENDS 7 JUNE






Tuesday, March 12, 2013

4 March lecture - theories of law


4 MARCH LECTURE

WHAT IS LAW?

Learning outcomes from this lecture and readings:

  • Be able to briefly describe the different theories of law and how they can be applied to environmental issues.
  • Be able to discuss in depth the natural law and social contract theories as they apply to the environment.

Notes

The study of the philosophy of law is known as jurisprudence

What makes something a law?

Produced by an institution?
What about religious norms? Social norms?
Does it need to be enforceable to be law?

THEORIES OF LAW


Religious law. The Pope. Islam. Theocracies.

Positivism. "In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits." http://en.wikipedia.org/wiki/Legal_positivism

Has its dangers. Victor Klemperer “I Shall Bear Witness”. But does positivism always mean that “the validity of a law can never depend on its morality”? Raz

FOR DISCUSSION - POSITIVISM AND LAWS THAT BADLY DAMAGE THE ENVIRONMENT?

What if the Fiji government passed a law that, by any measure, would do untold harm to the environment of that country. Say, cut down all trees on one of the larger islands as a bizarre kind of Easter Island imitation. Is it law?

1) Under the positivist theory has it been validly made? (hint - google Fiji and rule of law)

2) Does the positivist theory allow for any consideration of the moral content of the law? (start with wikipedia on legal positivism and this comment: "Raz has also argued, contrary to Hart, that the validity of a law can never depend on its morality.

http://en.wikipedia.org/wiki/Legal_positivism


Social Contract. The Mayflower - a classic social contract: http://americanhistory.about.com/od/colonialamerica/a/may_compact.htm
"Having undertaken, for the Glory of God and advancement of the Christian Faith and Honour of our King and Country, a Voyage to plant the First Colony in the Northern Parts of Virginia, do by these present solemnly and mutually in the presence of God and one of another, Covenant and Combine ourselves together into a Civil Body Politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute and frame such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient for the general good of the Colony, unto which we promise all due submission and obedience."


Margaret Midgley paper on widening the social contract to include more than adult humans.

A good discussion of a social contract theory of law is contained in John Rawls “A Theory of Justice”:http://en.wikipedia.org/wiki/A_Theory_of_Justice

"no one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance."

Short paper setting out the key features of Rawls theory.

What if the parties dont know:
- when they will be born - now or in the future?
- whether they are human or some other species?

Would that extend the idea of the social contract in a useful way so as to consider environmental issues?

Indeed, without such extensions, does Rawl’s theory assist environmental law making in any way? In other words, could you argue that sound environmental law cannot come out of the Rawl’s model with the extensions suggested? In which case, is this also a way of saying that our current legal system cannot generate sound environmental law? It is too anthropocentric?

What about expanding the social contract so that it includes animals?

In Rawls theory of justice  - and what the situation might be if people in the original position behind the veil of ignorance did not know what species they were.

In that light – consider this - Animal Welfare Act 1999 - section 85

(Interesting side debate here: how can law be anything other than anthropocentric? Take the phrase, “intrinsic values of ecosystems”. Is that non-anthropocentric or not? See Animal Welfare Act 1999 section 85 Restrictions on use of non-human hominids:


Natural law. 

Historical genesis:


"natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature,"


http://en.wikipedia.org/wiki/Natural_law

Aldo Leopold and his land ethic:


"A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise."

"The land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land."

"A land ethic of course cannot prevent the alteration, management, and use of these ‘resources,’ but it does affirm their right to continued existence, and, at least in spots, their continued existence in a natural state. In short, a land ethic changes the role of Homo sapiens from conqueror of the land-community to plain member and citizen of it. It implies respect for his fellow-members, and also respect for the community as such."


http://en.wikipedia.org/wiki/Aldo_Leopold

So this is a form of expanded social contract?

See also 'ecocide': http://en.wikipedia.org/wiki/Ecocide

Ecocide is not currently an international crime, although it is a domestic crime in at least ten countries. The legal definition of ecocide proposed to the United Nations in 2010 by Polly Higgins was:
"The extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished. " [10]
It is an international crime to cause widespread, long-term and severe damage to the non-human environment during war time. Article 8(2)(b)(iv) of the Rome Statute prohibits:
"Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the non-human environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. "
However, there is no correlating crime during peace time. The existing law of war could be used in the interpretation of what constitutes ecocide. The 1977 United Nations Environmental Modification Convention specifies the terms ‘widespread’, ‘long-lasting’ and ‘severe’ as:
  1. widespread: encompassing an area on the scale of several hundred square kilometers;
  2. long-lasting: lasting for a period of months, or approximately a season;
  3. severe: involving serious or significant disruption or harm to human life, natural and economic resources or other assets.


See also 'wild law':

"human laws that are consistent with Earth jurisprudence.[1] A wild law is a law made by people to regulate human behaviour that privileges maintaining the integrity and functioning of the whole Earth community in the long term, over the interests of any species (including humans) at a particular time."

http://en.wikipedia.org/wiki/Wild_law

See also this reference to 'earth jurisprudence": http://en.wikipedia.org/wiki/Earth_jurisprudence

But how long term? Does it ultimately make any sense as a theory of law if you consider for example our place in the universe, and random asteroids that could end life on this planet at virtually any time?

Picture of all asteroids that could hit us with large scale damage
http://www.nasa.gov/mission_pages/WISE/multimedia/gallery/neowise/pia15627.html

Example - the Russian meteorite of Feb 2013.

Consider a meteorite seeded with microbes that will survive the impact but destroy everything currently living. Should it be stopped?


"I will make one comment about these kinds of arguments which seems to me to somehow have eluded everyone. When people make these probabilistic equations, like the Drake Equation, which you're familiar with -- they introduce variables for the frequency of earth-like planets, for the evolution of life on those planets, and so on. The question remains as to how often, after life evolves, you'll have intelligent life capable of making technology. What people haven't seemed to notice is that on earth, of all the billions of species that have evolved, only one has developed intelligence to the level of producing technology. Which means that kind of intelligence is really not very useful. It's not actually, in the general case, of much evolutionary value. We tend to think, because we love to think of ourselves, human beings, as the top of the evolutionary ladder, that the intelligence we have, that makes us human beings, is the thing that all of evolution is striving toward. But what we know is that that's not true. Obviously it doesn't matter that much if you're a beetle, that you be really smart. If it were, evolution would have produced much more intelligent beetles. We have no empirical data to suggest that there's a high probability that evolution on another planet would lead to technological intelligence. There is just too much we don't know."

Are we even entitled to interfere with the sun - to save the earth? There is already a movie raising that ethical issue: http://en.wikipedia.org/wiki/Sunshine_(2007_film)

Here is the last scene: http://www.youtube.com/watch?v=TBzVPXr8SNY

FOR DISCUSSION - WHAT IF WE TRIED TO DEVELOP A NEW VERSION OF NATURAL LAW?

What about a theory of law which we might call the “Holocene Ethic” - that is, taking all steps to preserve the basic conditions of the planet that generated and have sustained the human species for the past 10,000 years or so. Maintaining the ethic would include responsibilities like keeping the planet in the Holocene state in terms of stable atmosphere, managing pollution etc. Also diverting or destroying asteroids on a collision course. And possibly - at a much later date - eventually preventing the expansion of the Sun.

What sort of theory of law should we have in relation to other bodies in our solar system and elsewhere? Are we entitled to terra form other planets? There are serious discussions about terra forming Mars (eg http://quest.nasa.gov/mars/background/terra.html) Should we do that or treat it as a kind of Antarctica? What if we find extreme forms of life on Mars? How should we treat them?


Custom law. Eg Maori custom law. 

Have a look at this amazing summary of Maori law by a Pakeha observer in the 1860s. Its has obvious biases, but amazing detail about the nature of Maori law and what a comprehensive system it was at the time.

Point to ponder. What is custom law versus any other type of law? Isnt it all custom of one form or another? Or is the difference the fact that it is “a right enjoyed through long custom rather than positive law”?http://en.wikipedia.org/wiki/Custom_(law)

This interesting essay asks whether modern conservation laws which seek to preserve landscapes without humans living in them, might be simply furthering colonisation if they dont consider indigenous knowledge.

Law and Economics
This theory suggests that good law is economically efficient. It has been a big influence on the RMA. The idea is that environmental law should only regulate activities where there is a market failure ie there are externalities to the activity that society is being asked to bear. In that case regulation would make the polluter pay.

Note also the Coase theorem, which suggests that if rights are clearly assigned to parties to being with, and you reduce transaction costs ie allow a free market to operate easily, then you very efficiently get to the appropriate environmental outcome.

Richard Posner
Ronald Coase
Ecologics


Sunday, March 3, 2013

11 March lecture - NZ constitution

What was covered:

NZ constitution, common law vs statute law, Parliamentary sovereignty, statutory interpretation, 

Learning outcomes from this lecture and readings:

  • Understand the main components and features of the NZ constitution - laws, conventions, the separation of powers etc.
  • Understand the extent of parliamentary sovereignty in making law, and any limits on it under the constitution.
  • Understand the important role that statutory interpretation plays in our constitution and the rules governing how interpretation is done,  and how those rules are changing for example by virtue of the Interpretation Act 1999 s5.

Notes

Fundamentals of the NZ constitution: a quick accurate sketch of the key components of the NZ constitution from the Cabinet book.

Entick v Carington case 1763: very important early case about the limits of state power. The same principles apply in debates today.

The US controversy over drones and due process before killing people - an example of the ongoing issues arising from state power and the relevance of Entick v Carrington:

The letters in question.

The further note to Holder reads:

The Attorney General
Washington, D.C. March 7, 2013
The Honorable Rand Paul United States Senate Washington, DC 20510
Dear Senator Paul:
It has come to my attention that you have now asked an additional question: “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” The answer to that question is no.
Eric H. Holder, Jr. 

Note how every word is carefully weighed. It seems drone strikes on US citizens are possible depending in what 'in combat' means.

Canterbury Earthquake Response Act 2010: a very good example of the enormous power of the NZ parliament under our constitution.

Academic article on how statutory interpretation is changing in NZ: section 5 of the Interpretation Act 1999 means that the text is read in light of the purpose. This has important consequences.

For example in the Greenpeace case: a split decision on how amendments to the RMA 1991 affect consideration of greenhouses gases when a thermal power station applies for discharge consents for CO2. A case of poor text being 'saved' by purpose?

In terms of separation of powers, we looked at guaranteed salaries for judges and how separation is managed by local authorities which may have to apply for resource consents from themselves, and enforce them.

Looked at threats to the rule of law:

- climate change and other large environmental threats eg this speech and search 'climate change rule of law'
- automation and the singularity. This fascinating blog post explores whether the singularity will have more immediate and larger impact than climate change.  

Of interest. This article by Dame Anne Salmond is of interest about challenges in NZ today to the rule of law: Dame Anne Salmond: Time to defend democratic rights