The NZCPS is for the birds

Reef Heron

A landowner in Church Bay, Waiheke Island, got some welcome news on Friday afternoon, when their helipad consent application was granted. They may have celebrated. They were probably not surprised; thirteen of their immediate and nearby neighbours already have one.

The authors of the New Zealand Coastal Policy Statement might have been surprised, however. The flightpath goes very low (and loud) over Motukaha Island, which is a listed Site of Ecological Significance:

The New Zealand Coastal Policy Statement (NZCPS) sets a high bar in protecting indigenous biological diversity in the coastal environment, requiring that all adverse activities are completely avoided on threatened or at-risk native species:

Auckland Council’s Helicopter Practice and Guidance Note makes that clear and states that all resource consent applications for helipads in a coastal environment (which is most of them) need to be assessed against the NZCPS and must have an expert report:

That expert report would need to prove that there would be no adverse impacts of any kind on breeding birds in the coastal zone, including on Motukaha Island. NZCPS Policy 3 makes clear that a precautionary approach must be adopted: “Adopt a precautionary approach towards proposed activities whose effects on the coastal environment are uncertain, unknown, or little understood, but potentially significantly adverse.”

But none of this happened in this case. No expert report was provided by the applicant and none was sought by council. Instead, council stated in the consent decision that:

To paraphrase (with comments), council said that:

  • The application is consistent with the NZCPS (even though it hasn’t been assessed against it, the endangered birds and habitats weren’t even identified, and potential impacts on them were never considered; neither by the applicant, nor by council).
  • The Hauraki Gulf Islands District Plan rule 13.8.2 “captures all relevant planning considerations” (even though it hasn’t been updated to give effect to the NZCPS) and therefore “there is no need to go beyond these provisions and look to Part 2 in making this decision”.
  • The application complies with the noise standard (in rule 13.8.2) of being less than Ldn 50 dBA. And the maximum noise levels are deemed by council to be reasonable within the immediate surrounds (yet the application never states the maximum noise level at any location – neither at the site, nor at the neighbouring sites, nor at the public walkway on the property boundary, nor at Motukaha Island; it only ever states the averaged noise over three days, which is of course, very much less than the noise of an actual helicopter flight, as it includes the long periods of quiet between the flights).

Regarding the noise standard, the council report states that:

The district plan rule is this:

It is worth noting that 52 and 51 are both greater than 50. It is all very well asking the human neighbours for written approval to exceed the limit, but council is obliged to consider the avian neighbours too. The flightpath is over a site of ecological significance where endangered birds breed. The consent of human neighbours (who aren’t directly under the flightpath) shouldn’t override a breach of the noise standard that affects those birds.

How has council got this so wrong?

Firstly, council has not given effect to the NZCPS by changing the Hauraki Gulf Islands District Plan rules. It was supposed to do so “as soon as practicable” after the NZCPS was gazetted…in 2010.

Secondly, council has not seen fit to consider the requirements of the NZCPS when processing consent applications, because it states that the rules “capture all the relevant planning considerations” so there is “no need to go beyond these provisions and look to Part 2” of the RMA.

Again, we think the authors of the NZCPS would be most surprised to learn that this is the case, because when the NZCPS was gazetted, the government stated the following:

This NZCPS is to be applied as required by the Resource Management Act 1991 (“the Act”) by persons exercising functions and powers under the Act. The Act itself should be consulted, but at the time of gazettal of this statement, its requirements in relation to this NZCPS are, in summary, that:

  • regional policy statements, regional plans and district plans must give effect to this NZCPS (sections 62(3), 67(3)(b), 75(3)(b) refer);
  • local authorities must amend regional policy statements, proposed regional policy statements, plans, proposed plans, and variations to give effect to NZCPS provisions that affect these documents as soon as practicable, using the process set out in Schedule 1 of the Act except where this NZCPS directs otherwise (section 55 refers);
  • a consent authority, when considering an application for a resource consent and any submissions received, must, subject to Part 2 of the Act, have regard to, amongst other things, any relevant provisions of this NZCPS (section 104(1)(b)(iv) refers);

These applied from 30 November 2010. It is now 13 March 2023. Nearly all of the >60 helipads on Waiheke have been granted consent during that time. Nearly all of those are coastal. None of the consents were processed with reference to the NZCPS.

Auckland council thinks the NZCPS is for the birds.

Reef Heron