2018 Litigation Forecast - Environmental litigation Summary

Environmental litigation has continued to rise over the last few years, keeping pace with major plan reviews and development activity. The environmental area continues to become more complex and litigious as new statutory provisions and regulations are tested, and New Zealand’s natural and physical resources come under greater pressure.

In 2018 we see these trends continuing, with litigation related to the consenting of infrastructure and housing being two areas of dominance, together with a continued increase in environmental prosecutions.

A number of infrastructure projects are progressing through the business case and consenting process, and will continue in 2018 and beyond.  Where private land is required for a public infrastructure project, we foresee an increase in litigation to determine the compensation payable under the Public Works Act 1981 (PWA) as land prices and the amounts at stake become higher.

While the Labour-led Government may make changes to the infrastructure project pipeline in terms of focus, greater expenditure on infrastructure is expected with funding available for transport projects of regional importance alone to be doubled from $70-$140m to $140-$280m.

Large housing developments are underway across the country to address New Zealand’s housing shortfall, both in greenfield areas and through intensive development in established neighbourhoods. For greenfield areas needing a plan change to get a live zoning to allow development, there will be litigation relating to zone boundaries and controls placed on the land.  Intensification in existing neighbourhoods, will inevitably see some developments proceed to court over issues to do with notification to neighbours and potential adverse effects.  The Government’s announced intention to establish an urban development authority may significantly change the consenting landscape for some residential developments post-2018.

Following statements by the new Government that it will fund greater enforcement of the Resource Management Act, we expect a slow but steady increase in enforcement in 2018 and with this, the potential for an upward trend in penalties.

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