Adaptation to Sea-Level Rise: Local Government Liability Issues

Abstract

This paper addresses the legal frameworks and rules about what local and regional councils in New Zealand can and cannot do to adapt to the coastal hazards associated with sea-level rise and climate change. The focus is on what councils might be liable for in respect of housing affected by coastal hazards. It is part of a Deep South National Science Challenge program on Impacts and Implications for residential housing that is now – and in the future will increasingly be – subject to such coastal hazards. Its focus is limited to adaptation measures for residential housing; it does not address infrastructure nor commercial building or activities. The first three chapters address background matters: an introduction and summary of the issues of residential development in coastal areas that will be subject to increased risks of flooding and likely storm damage from climate change; the types of legal instruments usually used in order to adopt climate adaptation measures and the difficulties with adopting those in New Zealand; an outline of the structure and provisions of the Resource Management Act relevant to decision-making on climate adaptation measures; and some general considerations of principle, including coastal hazards guidance from central government. The second Part of the paper addresses specific tools that will be required to implement climate adaptation: prevention of new development or placing conditions on it, coastal protection works, and managed retreat of residences from future coastal hazard areas. The final Part of the paper addresses the use of information instruments in order to provide relevant coastal hazard information to current and future homeowners, and then liability in negligence for council consenting decisions. The paper is not designed to provide a legal opinion on the points discussed but to illustrate where liability may fall for loss and damage from coastal hazards, and for the decisions made in adapting to climate change hazard risks. It also identifies barriers and enablers to the adoption of adaptation measures. While this identification was not the initial aim of the report, it quickly became clear that councils do not have all the tools necessary to effectively adapt housing to coastal hazard risks, yet also that there are some potential tools that are not being used. We thus thought it worthwhile to identify these, including where central government could assist such as through legislative amendment or relevant guidance. The aim is not to recommend what should be done but to assist discussion on whether the law is adequate to enable councils to do what they will need to do in order to adapt to the coastal hazards associated with climate change to the extent necessary for residential housing. While only some of this material on barriers and enablers is concerned with liability, it is all an essential aspect of achieving the bigger goal of effective adaptation.