By Belinda Green.

 

“Urban areas are struggling to keep pace with population growth and the need for affordable housing. Water quality is deteriorating, biodiversity is diminishing and there is an urgent need to reduce carbon emissions and adapt to climate change.”

  • David Parker, Environment Minister. 11 February 2021.

On 11 February 2021, the Government confirmed plans to repeal the Resource Management Act 1991 (RMA) and replace it a reform package of laws.  The new laws are intended to give effect to recommendations made by the Resource Management Review Panel’s 2020 report.

 

Repeal and replacement of the RMA

The Hon David Parker, Minister for the Environment, announced plans for three new Acts to take the place of the RMA. These three Acts reflect the advice contained in the Panel’s 2020 report, and will address matters as follows:

  • A Natural and Built Environments Act (NBA)

This Act will be the primary replacement for the RMA. It is intended to address land use and environmental regulation, with a focus on enhancing the quality of the environment and on achieving positive outcomes to support the wellbeing of present and future generations.

  • A Strategic Planning Act (SPA)

This Act is intended to focus on decision-making and investment issues.  It is anticipated that it will integrate functions under the RMA as well as the Local Government Act 2002, Land Transport Management Act 2003, and the Climate Change Response Act 2002.  Long-term regional spatial strategies will be required.

Minister Parker said the strategies will enable more efficient land and development markets to improve housing supply, affordability and choice, and climate change mitigation and adaptation.

  • Climate Change Adaptation Act (CAA)

This Act will focus on addressing the effects of climate change and natural hazards, and is anticipated to deal with complex issues associated with how to plan for, fund, and finance a managed retreat from areas which will be significantly affected by climate change.

 

Why the change?

There is broad consensus that the RMA is not working as it was intended. However, to date there has been only limited tinkering to the Act.

Once of the forces behind the current reform package is the comprehensive review of the resource management system undertaken by the independent expert Resource Management Review Panel, headed by retired Court of Appeal judge Hon Tony Randerson QC. The Panel’s report, released on 29 July 2020 and entitled New Directions for Resource Management in New Zealand, was broad ranging and recommend an overhaul to the legislation that would take a different approach, while still incorporating some of the key principles of the RMA.

The Ministry for the Environment’s accompanying reform information[1] has identified four key issues of concern:

  • Pressures on the natural environment, and unsustainable use of land, water, and other natural resources.
  • Urban areas struggling to keep up with population growth.
  • A need to reduce carbon emissions and adapt to climant change.
  • The need to ensure Māori have an effective role in the system, consistent with Te Tiriti principles.

It is clear that one of the main concerns the Government hopes to address through the reform package is housing affordability, supply, and choice.

 

When will the new legislation come into effect?

The Government has made a commitment to pass all three Bills in the current term.  As currently conceived, the timetable is:

  • May 2021: Cabinet to agree on a final exposure draft of the Natural and Built Environment Bill, present it to the House, who will then refer it to a special select committee inquiry.
  • June to September 2021: The special select committee inquiry will consider the exposure draft. This is where the bulk of consultation and engagement will occur.
  • December 2021: The three Bills will be introduced to Parliament. They will be subject to a standard legislative and select committee process.
  • December 2022: All three pieces of legislation are planned to pass by the end of 2022.

Until then, the Government is encouraging councils to continue with business-as-usual, with an emphasis on gathering evidence/data on the performance of their plans, and establishing implementation practices that could be carried over into a future system.

 

[1] Available at https://www.mfe.govt.nz/rma/reforming-new-zealands-resource-management-system/supporting-information-reform.

“Route to the decision” – Scottish court rejects challenge to adjudicator’s decision that did not expressly address a material line of defence

Written by Kate Holland In UK Grid Solutions Limited and Amey Power Services Limited v Scottish Hydro Electric Transmission PLC,[1] the unsuccessful party to an adjudication sought to resist enforcement on the grounds that 1) the adjudicator had failed to address a...

Asking a decision-maker to take a sneaky peek isn’t a strategically clever move: adjudicator’s decision held unenforceable due to breach of without prejudice rules

Written by Maria Cole A party (AZ) brought proceedings in the England and Wales Technology and Construction Court (Court) to enforce the decision of an adjudicator against the respondent (BY).[1] During the adjudication, AZ had placed without prejudice emails before...

Failed waterproofing causes a flood of costs

Written by Sam Dorne Legal battle over failed waterproofing comes to an end after plaintiffs prove their damages at the High Court in duty of care breach. Water water everywhere In the heart of Flat Bush, Auckland, stand the Nikau Apartments – a residential complex...

Mayor Brown is right about why public sector contracts go over time and over budget

Written by Rabin Rabindran and Derek Firth  In his opinion piece (NZ Herald 21 February 2024) Mayor Brown provides a number of reasons for these overruns.  They include an obsession with governance skills rather than a range of skills directly useful to the sector...

BuildLaw Issue 53

March 2024Download PDF   CONTENTS From the Editor BuildLaw in Brief A cat among pigeons Major changes to seismic building standards Failed waterproofing causes a flood of costs Asking a decisionmaker to take a sneaky peak isn’t a strategically clever...

High Court soundly dismisses judicial review of adjudication determinations but may inadvertently have put the cat among the pigeons

By Alexander Lyall In Sam Pemberton Civil Ltd v Robertson,[1] the High Court considered applications for judicial review of two related adjudication determinations. In dismissing the applications, the Court underscored some of the key functions of the Construction...

Technocratic payment regime not the priority under the Construction Contracts Act

Written by Alexander Lyall In Dem Home Ltd v New Gate Ltd[1] the High Court considered whether a payment claim had been validly served under the Construction Contracts Act 2002 (the CCA). The decision is an ever-important reminder that the CCA is designed to maintain...

Highly stressful circumstances: Court of Appeal assesses contract in earthquake insurance mess

Written by Alexander Lyall   The Court of Appeal (the Court) has issued a decision in a long-running dispute between a Christchurch homeowner and her insurance and legal advocates. Pfisterer v Claims Resolution Service Limited & Anor[1] contains a close look...

Kane v Venues NSW: The Handrail Tale

Written by Sam Dorne The case of Venues NSW v Kane [2023] NSWCA 192, involving a patron’s fall within the lower concourse of the western grandstand of the McDonald Jones Stadium in Newcastle, Australia, looks at a fundamental legal question surrounding the duty of...

How do you solve a problem like retentions?

Written by Kate Holland The use of retentions in construction contracts is culturally ingrained in the industry but it is increasingly seen as an outdated and unfair practice. In the UK, there have long been calls to abolish or regulate retentions, but little progress...

The “measured duty” to love thy neighbour: private nuisance and naturally occurring hazards

Written by Maria Cole A Christchurch landowner, whose property sits at the foot of unstable clifftop land purchased by the Crown following the Canterbury earthquakes, has failed in the Supreme Court to obtain damages in “private nuisance” for the risk of further...

BuildLaw Issue 52

December 2023Download PDF   CONTENTS From the Editor BuildLaw in Brief How do you solve a problem like retentions? The “measured duty” to love thy neighbour: Private nuisance and naturally occurring hazards. Disruption claims: Are your project records up to date?...

New regulations for building products

Written by Richard Pidgeon The Building (Building Product Information Requirements) Regulations 2022 set out how information about building products contributes to building code compliance. The regulations stipulate that information on how products are to be installed...

Mainzeal saga ends in the Supreme Court

By Richard Pidgeon In Yan v Mainzeal Property and Construction Limited [2023] NZSC 113 the Supreme Court upheld damages against Mr Yan in the sum of $39.8 million and the remaining three directors (including Dame Jenny Shipley) jointly with Mr Yan in the sum of $6.6...

Obstructed view review

Written by Maria Cole Introduction In Wynyard Quarter Residents Association Incorporated v Auckland Council and Orams Group Limited,[1] a group of apartment owners filed judicial review proceedings seeking to overturn an Auckland Council decision to grant resource...

The losing streak is over: English rugby wins… right to bring claim against contractor

Written by Alexander Lyall Nearly 10 years on, English rugby finally has a victory related to the 2015 Rugby World Cup. In FM Conway Ltd v Rugby Football Union,[1] a company contracted by the English Rugby Football Union (the RFU) for maintenance works at Twickenham...

Keep calm and carry on: English Court of Appeal overturns controversial High Court ruling and clarifies guiding principles in serial adjudications

By Kate Holland The English High Court caused concern earlier this year when it held that an adjudicator had breached natural justice by holding himself bound by a previous adjudicator’s findings. Now, in Sudlows Ltd v Global Switch Estates 1 Limited,[1] the Court of...

Moving home

Written by Richard Pidgeon A family became dissatisfied with a house removal firm who had shifted their home from Remuera to Katikati. In Stott v Uplifting Homes Ltd [2023] NZHC 1514, the High Court determined the level of compensation after the contract was...

Big loss for insurer in legal battle with Napier Council over leaky building clause

Written by Sam Dorne In a recent case, the Supreme Court of New Zealand ruled in favour of the Napier City Council in an insurance claim involving building defects including weathertightness or “leaky building” issues, in what is seen as a return to the status quo...

BuildLaw Issue 51

September 2023Download PDF   CONTENTS BuildLaw in Brief Keep calm and carry on Mainzeal saga ends in the Supreme Court New Zealand: Insurance under Scrutiny Obstructed view review Case in Brief: Esk Valley marae injunction Res judicata and declarations relating...

Take a rain cheque – Full Federal Court of Australia reads common sense into insurance policy

By Alexander Lyall A decision by the Full Federal Court of Australia has provided clarification about the wording of an insurance policy for a construction project. In Acciona Infrastructure Australia Pty Ltd v Zurich Australian Insurance Limited [2023] FCAFC 47,[1] ...

Case update: English Court of Appeal confirms ‘useless’ ADR procedure too uncertain to enforce

By Kate Holland In our December 2022 issue of BuildLaw, we reported on a case in the English High Court[1] about an unusual alternative dispute resolution (ADR) procedure in a construction contract that was held to be too uncertain to be an enforceable condition...

English Court of Appeal confirms ‘useless’ ADR procedure too uncertain to enforce

By Kate Holland In our December 2022 issue of BuildLaw, we reported on a case in the English High Court[1] about an unusual alternative dispute resolution (ADR) procedure in a construction contract that was held to be too uncertain to be an enforceable condition...

Disgruntled builders lose defective cladding dispute

By Sam Dorne In Goodman-Jones v Hughey & ors [2023] NZHC 604, two experienced builders brought a claim for damages for a perceived defective installation of cladding for a new build. Despite the action being brought against multiple defendants the Court found that...

BuildLaw Issue 50

June 2023Download PDF   CONTENTS BuildLaw in Brief: Recent key developments in the construction industry Bad faith and without substantial merit – What it means and what it takes Disgruntled builders lose defective cladding dispute High-rise blues Build-to-Rent:...

Craftiness is not an abuse of process

With cashflow a persistent concern for companies in the construction industry, a recent decision in the New South Wales Supreme Court may alleviate some of the stress. The decision should affirm to struggling parties that there is no problem with taking strategic...

Privileged glimpses: Curtain falls on art gallery’s nuisance ‘human zoo’ exhibit

By Kate Holland The UK Supreme Court has ruled that the London Tate Modern’s public viewing gallery overlooking the luxury glass-walled apartments nearby, is a visual intrusion amounting to the tort of nuisance. The decision in has attracted criticism for prioritising...

Waiver and estoppel arguments raised in interim payment dispute

By Sam Dorne The English Court of Appeal case of A & V Building Solutions Limited v J & B Hopkins Limited has highlighted issues parties face when there is ambiguity in relation to dates for requesting interim payment in construction contracts.[1] The case...

Doing business in Australia? Then you need to know when you still might have to pick up the whole tab

By Maria Cole If you have a commercial contract in Australia, it’s probably governed by Australian law, which includes the proportionate liability regime.[1] Broadly, proportionate liability means if there are multiple parties to a contract and things go wrong, a...

Parliament passes sweeping amendments to construction payment regime

By Alexander Lyall Parliament has recently enacted legislation allowing for comprehensive changes to the Construction Contracts Act 2002. The Construction Contracts (Retention Money) Amendment Act 2023 passed its third reading on Wednesday 29 March and received Royal...

BuildLaw Issue 49

March 2023Download pdf   CONTENTS Diamond Glass slices damages in airport contract Case in Brief: Craftiness is not an abuse of process (Kennedy Civil Contracting Pty Ltd (Administrators Appointed) v Richard Crookes Construction Pty Ltd [2023] NSWSC 99) That...

Builder terminates contract with a “sorry mate…costs are going through the roof”

By Kate Holland With the construction industry in the grip of labour and supply shortages and spiralling costs, a recent decision of the Queensland court is a timely reminder of the established principles of contractual repudiation. The decision is a warning to...

Ripping up the Resource Management Act

By Adrian Sharma The Resource Management Act 1991 (RMA) is one of New Zealand’s most important pieces of legislation. It governs what can be built where, when, and how. But more than 30 years on from its introduction, and after numerous amendments, the controversial...

To bespoke or too bespoke – the case of an ADR clause that couldn’t be enforced

By Kate Holland In a recent English decision, the Technology and Construction Court held that a clause in a construction contract requiring the parties to refer a dispute to ADR was a condition precedent to commencing litigation in the courts. However, the Court also...

The Court of Appeal sounds the all clear and it’s business as usual under the CCA: so file a payment schedule or pay up!

By Maria Cole A decision issued by the High Court last year caused a “head in hands” moment in the construction industry in relation to the payment claim regime. The High Court set aside a statutory demand which had been filed to enforce a payment claim as a debt due...

BuildLaw Issue 48

December 2022Download pdf   CONTENTS The Court of Appeal sounds the all clear and it’s business as usual under the CCA: so issue a payment schedule or pay up! Case in Brief: Builder terminates contract with a “sorry mate… costs are going through the roof” but...

Labelling an image as an ‘artist impression’ was found not to give a developer artistic licence in a claim of misleading and deceptive conduct over an ‘off-the-plan’ premium apartment

By Maria Cole Australian consumer protection law was given an outing in the Federal Court of Australia when a developer merely added the words ‘artist impression’ to a computer generated image it intended to use in its marketing materials for an ‘off-the-plan’...

Fire risk – defective cladding litigation heats up

By Sam Dorne In England and Wales, the Technology and Construction Court in Martlet Homes Ltd v Mulalley & Co Ltd [2022] EWHC 1813 (TCC) (14 July 2022) has released the first decision arising out of a defective cladding dispute following the Grenfell Tower...

BuildLaw Issue 47

September 2022CONTENTS Competition not working well in residential building suppliesmarket Fire risk – defective cladding litigation heats up Case in Brief: Supreme Court of New South Wales finds forcemajeure clause offered no protection for loss and damage togoods in...

WA Supreme Court finds no implied licence to use home design plan

By Kate Holland In a recent Australian case, the WA Supreme Court was unwilling to interpret a contract between a home builder and their client to imply a licence allowing the client to use the builder’s design in whatever way they pleased. Although the case was...

Overhaul coming to the regulation of engineers

By Sam Dorne The Ministry of Business, Innovation and Employment (MBIE) undertook a consultation in 2021 to reform the regulatory regime for engineers. The reforms will move away from a voluntary accreditation scheme into a formal regulated regime.   Current...

Expert “evidence” needs to be more than just bald assertions to win the day

By Adrian Sharma Leakage issues in a building can be a real dampener. A recent decision of the Queensland Civil and Administrative Tribunal (the Tribunal) which considered conflicting expert evidence on water ingress issues in a newly built property highlighted the...

An adjudicator’s decision on a construction contract is definitely worth the paper it’s written on!

By Maria Cole It’s only in rare circumstances that the courts will interfere with the decision of an adjudicator on a construction contract. A recent decision out of the English Technology and Construction Court (TCC) considered arguments that an adjudicator acted in...

You break it you bought it: Supreme Court confirms you can’t cancel a contract for failure to satisfy a condition if your own behaviour had a material effect on the failure

By Belinda Green.   We’ve known for a long time that a party can’t rely on a failure to satisfy a condition if the condition failed to satisfy because of their action. But we never really had an explanation of how bad that “failure” had to be until now. In its...

BuildLaw Issue 46

March 2022CONTENTS You break it you bought it: Supreme Court confirms you can’t cancel a contract for failure to satisfy a condition if your own behaviour had a material effect on the failure Case in Brief: Unhelpful expert witness sees homeowners succeed in defective...

Vicarious liability and subcontractors

By Sam Dorne Liability in tort depends upon proof of a personal breach of duty, with one true exception, vicarious liability. The law of negligence is generally fault based; a defendant is personally liable only for the defendant’s own negligent acts and omissions....

Limitation for payment claims under construction contracts

By Sam Dorne The decision in Hirst v Dunbar [2022] EWHC 41 (TCC) considers the impact of payment provisions in a construction contract, whether through contract or implied terms, and the commencement of the limitation period for payment claims under the contract. It...

Extensions of time in construction contracts

By Jo O’Dea   In an extension of time claim, blame for the delay was a relevant consideration when assessing what was “fair and reasonable”.   In CAJ v CAI [2021] 5 GCA 102, the Singapore Court of Appeal considered the issue of extensions of time in...

BuildLaw Issue 45

March 2022CONTENTS Extensions of time in construction contracts Construction contract procedure and dispute resolution: There really is a reason to pay attention to the boring stuff Principals beware, constructive acceleration is here UK: Important announcement on the...

Testing the waters: New South Wales Supreme Court considers the prevention principle

By Hannah Aziz  Court provides further confirmation that the prevention principle can be excluded by the terms of a contract.   Introduction Following our recent commentary comparing the operation of the prevention principle in New South Wales and Victoria, the...
Skip to content