MEDIA RELEASE – for immediate use 8 May 2006

The New Zealand Law Society Environmental Law Committee comments on the role of Transit in resource management processes.

The New Zealand Law Society Environmental Law Committee welcomes the recent (18 April) Environment Court decision which clarifies the role of Transit New Zealand in relation to developments where there are transport implications.

In recent years, Transit has actively sought both roading improvements and financial mitigation measures where it has seen developments as having adverse impacts on road safety or road capacity. Transit’s approach has been of concern to territorial local authorities and developers, particularly as Transit’s involvement has, in some cases, added to the complexity of hearings and the costs of development.

In its decision, the Environment Court raised questions about Transit’s role in the appeal. The Environmental Law Committee believes that the Court’s concern about the role of Transit is not confined to this particular case.

The 18 April decision concerned a residential development proposal at Colac Bay, near Riverton, in Southland. In that case, Transit wanted the developer to pay for roading improvements that would be of a higher standard than Transit would construct of its own accord and that would also overcome existing safety deficiencies. The Court found that the works sought included significant upgrading beyond that necessary to provide for any increased traffic as a result of the particular project.

It said Transit was wanting the developer to pay for a significantly improved intersection, a requirement the Court likened to imposing a tax on the developer.

The Court discussed issues relating to the role and funding of Transit and concluded that “the enabling powers of Transit do not extend so far as to control development, especially in circumstances where that would require a developer to overcome existing deficiencies in the network”.

The Environment Court was not satisfied that imposing the condition Transit sought would increase safety. Rather it was “concerned that there appears to be a clear intention to disable people in communities from providing for future growth unless costs of national roading upgrades are met by individual developers”.

“The evidence gave rise to a significant concern by us that this was an attempt to extract the costs of significant roading improvements to overcome existing network deficiencies from developers. Having regard to the fact that permitted activities would result in the same level of effect without compensation to Transit, we conclude it is, in principle, wrong to extract full costs for such an improvement from just one developer.

“In all the circumstances of this case we believe that the condition sought by Transit is wrong, both in principle and in the exercise of our discretion,” the Environment Court concluded.

This recent Environment Court decision does not establish any new legal principles as it is common for financial mitigation to be sought for adverse effects in resource management cases. Such claims are usually resolved by negotiation, and a developer (including a council) commonly passes on the costs.

The effect of the decision is that, for Transit to obtain contributions towards roading improvements, it will have to show a closer connection between the activity for which consent was sought and the need for a road upgrade. The need to prove such a connection between a proposal and its effects is not new, but this decision may make Transit rather more careful to check the extent of that connection before it seeks road upgrade conditions.

This Colac Bay case concerned, of course, a discrete set of facts about road carriage capacity and safety, and the decision does not create a binding precedent for the Court. What it does do, though, is highlight concern about Transit’s proper statutory role in Resource Management Act processes, and the relationship between perceived and actual adverse effects and a development proposal.

ENDS

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