Summer 2011/2012 Newsletter

Christchurch earthquake to trigger changes to Resource Management Act 1991

The Christchurch earthquakes have resulted in a re-examination of the Resource Management Act 1991, (“RMA”) with the damage caused to thousands of homes by liquefaction being a significant factor in the review.

The purpose of the RMA is to “promote the sustainable management of natural and physical resources”. The catastrophic effects of the earthquakes have highlighted the importance of the RMA as not only protecting the environment from the impact of people and land use, but also to consider the effect of nature on people.

The RMA requires decision makers to consider matters of “national importance” in their determinations. However, natural hazards are not included as a matter of national importance.  As a result it has become clear that the zoning of areas for residential use in district plans, and the consideration of resource consent applications do not sufficiently consider natural hazard risks.

The recent Canterbury Fact Finding Project (‘the Project’) has investigated how much was known about liquefaction and lateral spreading risks in Christchurch, and the impact of this knowledge on zoning and development decisions.  Since 1991 there have been reports available on the significant liquefaction risk in Christchurch, including “clear maps that are uncannily accurate” on the locations where liquefaction would occur.

Hon. Dr Nick Smith, Minister for the Environment, noted recently that resource consents covering about 20% of the severely liquefied properties in Christchurch were approved after the area specific reports funded by the Earthquake Commission (EQC)and GNS Science (GNS) were released, in 1991 and 1992 respectively. If the reports had not been “shelved”, it is likely much of the damage would not have occurred, or would have been greatly reduced.

The Project has found that resource consents issued under the RMA for the development of land in some areas did not take into account identified liquefaction risks.  Even post 2004, consents were being granted without any regard for this significant and, by then, well documented risk. Not only was the information regarding identified risks not introduced into the zoning and consent decision making about development of these areas, but the risk of liquefaction was not clearly identified on Land Information Memorandum Reports (“LIM Reports”) for the affected properties, despite the information being known.

The problems in Christchurch have identified a shortcoming in the current consenting process nationwide.  The Government has indicated that further substantial changes will be proposed to ensure the risks of natural hazards are considered in planning decisions across New Zealand.

The changes aim to make all councils address the risks of natural hazards beyond flooding when approving applications under the Resource Management Act, and be vigilant in protecting residents from real identified risks. These changes may mean land which previously could be developed is in future classed as too risky, or that special development standards must apply.

The inclusion of detailed information in LIM Reports will also help give notice to property owners of the natural hazard risks which may affect properties, allowing them to account for such risks when building on or otherwise developing their property.

Counterfeit and illegal goods – buyers beware!

With the advent of internet shopping, we are now all “importers”, from books, toys and games to car parts and tools.  No longer must purchases be made at the retailer in your community.  Leaving aside the issue of the impact these changed shopping practices are having on “bricks and mortar” retailers, many internet shoppers are unaware of the implications of “buying on the net”.

Purchasers should be aware of the following:

The Trade Marks Amendment Act 2011 and the Copyright Amendment Act 2011 were passed on 15 September 2011, bringing changes which give powers to enforcement officers, customs and police to crack down on infringements.

The National Enforcement Unit (“NEU”) and Customs officers work together with police private individuals, companies and other entities holding rights under copyright or trade marks to prosecute the criminal offences of importing and selling counterfeit goods and pirated works.

The Government is advising that the NEU and Customs will be focused on counterfeit or other illegal goods.

The Acts will allow Customs greater powers at our country’s borders through their increased rights to seize property, question suspected offenders, and investigate goods entering the country which may be counterfeit.

The aim of the legislation is to restrict the flow of illicit goods into New Zealand, and increase consumers’ confidence that they are buying genuine products.

The Government has said that “illicit traders are moving beyond luxury items and into common everyday household products such as medicines, car parts, electronic equipment, and food products”, and do not concern themselves with health and safety considerations.

Items may be seized from travellers returning to New Zealand, or intercepted in the post.

Enforcement officers will be able to deal with anyone selling goods in public, including markets, stalls and fairs, which are often rife with counterfeit goods, and have the right to enter any public area, including shops, stalls and markets to investigate, without being required to obtain a search warrant.  They may also apply for a search warrant to allow them to enter and search private property to investigate non-compliance with the Acts.

The Trade Marks Act now also provides for greater international protection of trade marks registered in New Zealand, so that our well known (and not so well known) brands may be protected in up to 84 Countries with one trade mark application and one fee.

Snippets

Who says judges are straight laced?

On hearing the parties in the US case of Kissell v Schwartz and others had settled the dispute before the court, the judge’s decision included the following:

“And such news of an amicable settlement having made this court happier than a tick on a fat dog because it is otherwise busier than a one legged cat in a sand box and, quite frankly, would have rather jumped naked off a twelve foot step ladder into a five gallon bucket of porcupines then have presided over a two week trial of the herein dispute, a trial which, no doubt, would have made the jury more confused than a hungry baby in a topless bar and made the parties and their attorneys madder than mosquitoes in a mannequin factory. IT IS THEREFORE ORDERED AND ADJUDGED by the court as follows (inter alia):  

1. The jury trial scheduled herein for July 13, 2011 is hereby CANCELLED.
2. The clerk shall engage the services of a structural engineer to ascertain if the return of this file to the Clerks office will exceed the maximum structural load of the floors of said office.”

 

End of year changes

 

All information in this newsletter is to the best of the authors’ knowledge true and accurate. No liability is assumed by the authors, or publishers for any losses suffered by any person relying directly or indirectly upon this newsletter.  It is recommended that clients should consult a senior representative of the firm before acting upon this information.

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