The issues with the Natural and Built Environment Bill

05.04.23 02:46 PM By WasteMINZ
The Natural and Built Environment Bill which is proposed to replace the resource management system in New Zealand was open for consultation earlier this year. In this article, Pattle Delamore Partners' Natalie Webster explains the top five issues related to contaminated land management highlighted in the Contaminated Land Management Sector Group Steering Committee’s submission.

The Contaminated Land Management Sector Group Steering Committee reviewed the Natural and Built Environment (NBE) Bill which was recently introduced to Parliament on 15 November 2022. This legislation is proposed to form the basis of a new resource management system for New Zealand, in conjunction with the Spatial Planning Act, and The Climate Change Adaptation Bill, which together replace the Resource Management Act 1991. 

In reviewing the NBE, the objective of the Steering Committee was to identify any issues relating to contaminated land management which could result in adverse outcomes or unintended consequences. The following ‘top five’ issues were identified, and were communicated, among other issues, via a submission to the Select Committee. 

1.  Definitions 

The broad issue of definitions relates to a number of terms that are utilised within the Natural and Built Environment Act (NBA). In some cases, the Steering Committee noted that terms are used which do not have a definition provided, for example the use of the word ‘soil’ in relation to contaminated land, where there is no definition of this term within the bill and further, no accepted definition of the term within the soil science industry. In other cases, the definitions provided are considered to be insufficiently precise, such that the possibility of unintended consequences exists, for example in relation to the definition provided for ‘contaminant’, which has the potential to result in beneficial activities being interpreted as creating contaminated land. The Steering Committee has requested a number of changes to the definitions provided to remedy these issues.

2.  ‘Polluter pays’ liability regime

The Steering Committee noted that the polluter pays principal, as outlined in the NBA, is unclear about whether it will be effective from the date the legislation takes effect or if it will apply retroactively. It is considered that a regime that is only forward-looking will introduce a dual system of accountability, whereby a landowner who pollutes before the date the NBA is enacted will not have to pay, but those who pollute after this date will.  In addition, perverse outcomes could be the incentivisation of pollution prior to the NBA coming into effect; and providing a defence for landowners that where pollution occurred before the date of the NBA, they are not liable. There is clear international precedent for retrospective liability regimes. The Steering Committee has submitted that the NBA should be amended to clearly make liability for pollution retrospective; this should drive clarity around what is in fact intended to be.

3.  Setting of limits and targets

A significant proportion of the functionality and success of the NBA will hinge on the setting of environmental limits and targets. These are discussed in the NBA, but detail has not been provided about how they will be set, or what they are. As such, the Steering Committee provided strong encouragement via our submission for the setting of limit and targets that were nationally consistent, and which were appropriate for a range of different land use scenarios and environmental receptors. In addition, specific insertion of provision to allow the setting of site-specific limits and targets through appropriate risk assessment was requested.

4.  Regulator duties

The NBA sets out duties for both territorial and regional authorities. Regional authorities are required to identify all HAIL sites in their region. There is no apparent timeframe within which this must be completed, and the Steering Committee considers that this will be difficult to achieve for organisations that are already limited in resource. Similarly, the NBA contains a mandate for territorial authorities to consider the effects of proposed development on contaminated land, which is considered to be an overlap with regional council roles under consenting/discharge and management of contaminated land. The Steering Committee has expressed concern that this overlap could result in a void, or gap in completion of these elements. 

5. Landowners’ obligations

The NBA contains obligations for landowners to the effect that landowners must notify regional councils if their land use used for an activity or industry listed on the HAIL and must provide regional councils with any environmental reports that exist for the land. The Steering Committee submits that this regulation may be unworkable as it requires a level of knowledge and understanding that few landowners are likely to possess, particularly is it relates to the HAIL. In addition, the HAIL is not considered to be a fit tool for the purpose of identifying all contaminated land, nor was it intended for it. A key point made by the Steering Committee is that the HAIL does not include all sources of contamination. Therefore, not all contaminated, potentially hazardous, sites will be required to be notified, managed or remediated.

Read the submission on the WasteMINZ websiteRead this story and learn more about the Conference in our Revolve magazine.

Author bio
Natalie Webster is an environmental scientist with 18 years of experience in the environmental management sector and is a technical director in the contaminated land team at Pattle Delamore Partners. She has been a member of the CLM Sector Group Steering Committee since 2020.