Opinion: Who should pay for coastal defence work?

Kāpiti mayor K Gurunathan. Photo / Jack Penman

Weekly column by Kāpiti mayor K Gurunathan.

Last week, regional councils across the country woke up to a frightening prospect.

They would be responsible for a range of coastal management including overseeing and collecting rates for coastal defences, an area fraught with legal challenges.

Retired High Court judge Raynor Asher, who made this groundbreaking conclusion, was commissioned by three neighbouring councils to provide a legal review of their joint coastal hazard strategy after the councils failed to agree who should collect rates for coastal defences like seawalls, groynes and the funding of managed retreat.

Hastings District Council, Napier City and Hawke's Bay Regional Council had been working for seven years on a 100-year strategy to manage climate change related sea level rises.

Their collaborative strategy and methodology is cited as best practice and is followed by a number of councils across the country, including KCDC. But the three councils hit an impasse on the question of who should collect the rates.

The Asher review concluded the regional council should be responsible for everything from prevention to mitigation and remedial works. This included the bound-to-be controversial decisions around rating for these works and for directly collecting those rates.

The review went further to state that some ratepayers would get more benefits than others from coastal defence works and it would, therefore, require a fair way of imposing these rates which would also be the responsibility of the regional council.

Although the conclusions of the review does not carry the weight of a court decision, its robustness as a legal review has enough to set a direction for other councils grappling with the controversial and costly decisions around managing the increasing challenges of climate change and sea level rise.

In my own experience, regional councils generally tend to fly above the daily rough and tumble of local politics whereas district and city councils are easy targets for public criticism.

The Asher review, however, puts regional councils directly in potential "conflict" with the interests of coastal property owners.

Given the thrust of Judge Asher's conclusions, it may have been prudent for our own Greater Wellington Regional Council to have had a greater involvement with the Takutai Kāpiti coastal hazard strategy being developed along the Kāpiti Coast.

The original initiative was for a joint approach between Kāpiti, Hutt and GWRC but funding issues saw Kāpiti having to fund its own. The $200K we had hoped to secure from the regional council did not eventuate. To be fair, we do have some support from specialist GWRC staff. If the Judge Asher review sprouts legs, the prospect of legal challenges is huge and regional councils will be in it. Up to their necks.

Back in March 2019, LGNZ had Jack Hodder QC present a clear warning to local councils. His paper Climate Change Litigation: Who's afraid of creative judges was a significant think piece that got the attention of local politicians.

He said the combination of climate change concerns and our common law systems was already creating serious litigation risks for local councils including claims for damages. He said judges will use the "creative element" of common law to mould recommendations.

In the absence of national climate change adaptation guidance in New Zealand effectively leaving it to the courts to decide how to remedy climate change impacts. I understand the Climate Change Commission will not be tabling its report on adaptation for another two years.

And so we can expect creative judges to continue to dance with common law. We had been warned.