Statement of reasons
This statement records the reasons of the Associate Minister for Greater Christchurch Regeneration for recommending the making of an order under section 9(1) of the Christ Church Cathedral Reinstatement Act 2017 (the Act).
Background
After 6 years of litigation deadlock and extensive negotiations, the Crown brokered an agreement with the owner of the Christ Church Cathedral (the Cathedral) to reinstate the Cathedral after it suffered significant damage in the earthquake on 22 February 2011. One of the commitments the Crown agreed to was passing the Act, reinforcing the Government’s intention to prioritise the reinstatement of the Cathedral.
As described in further detail below, the Act’s express purpose is to facilitate the reinstatement of the Cathedral, recognising its contribution to cultural, social, and economic wellbeing in Christchurch, its importance to Christchurch’s regeneration, and its heritage value. This includes facilitating the Cathedral’s reinstatement in a manner that is faster, more cost-effective, and more certain than using processes outside the Act (see section 4).
Christ Church Cathedral Reinstatement Limited (CCRL), the joint venture company managing the reinstatement of the Cathedral, has developed a concept design for reinstatement. This relied on the agreement reached with the Crown and the definition of reinstatement in the Act. CCRL’s shareholders, the Cathedral’s owner and the Christ Church Cathedral Reinstatement Trust (the fundraiser for the project) have agreed to the concept design.
In the course of developing the concept design, CCRL has seen a need for certainty of outcome, in terms of the project’s momentum, cost, fundraising and completion. CCRL has therefore proposed an order under section 9(4) of the Act to the Associate Minister for Greater Christchurch Regeneration (the Minister responsible for the Act).
Legislative framework underlying this order
This order is made under the Act. It comes into effect on 5 October 2020 and is revoked on the close of 21 December 2032. The Act enables Orders in Council to be made that grant exemptions from, modify, or extend the provisions of certain enactments for the purpose of facilitating the reinstatement of the Cathedral.
This order modifies the Resource Management Act 1991 (the RMA) to streamline the process for resource consent applications for the reinstatement of the Cathedral.
The order defines reinstatement to have the same meaning as reinstatement in the Act, which includes 1 or more of the following:
(a)
any activity in relation to any part of the Cathedral that the Cathedral Working Group Report contemplates as being a reinstatement activity:
(b)
seismic strengthening of any part of the Cathedral:
(c)
demolition or deconstruction of any part of the Cathedral:
(d)
construction, reconstruction, or restoration of any part of the Cathedral:
(e)
improvement or enhancement of any part of the Cathedral or the design of any part of the Cathedral:
(f)
repair of any part or materials of the Cathedral:
(g)
reuse of any materials of the Cathedral:
(h)
use of any new materials:
(i)
any activity that is ancillary to any activity described in paragraphs (b) to (h).
The order also defines Cathedral in the same way as in the Act. It—
(a)
means Christ Church Cathedral in Cathedral Square in Christchurch; and
(b)
includes all ancillary structures and improvements that are existing or new and that are proximate to, or directly associated with, the Cathedral.
An order under section 8 of the Act may be made only on the recommendation of the Minister who is responsible for the administration of the Act, the Associate Minister for Greater Christchurch Regeneration (the Minister). Section 9(1) of the Act provides that a Minister must not recommend the making of an order unless—
(a)
the Minister is satisfied that the order is necessary or desirable for the purpose of the Act; and
The purpose of the Act (see section 4) is to facilitate reinstatement of the Cathedral, recognising its contribution to cultural, social, and economic wellbeing in Christchurch, its importance to Christchurch’s regeneration, and its heritage value. It includes, in particular, any 1 or more of the following:
(a)
to facilitate reinstatement in an expedited manner compared with processes and requirements outside the Act:
(b)
to provide a cost-effective process for reinstatement compared with processes outside the Act:
(c)
to achieve earlier or greater certainty for the owner of the Cathedral and the Christchurch community generally as to the reinstatement of the Cathedral than would be likely under processes and requirements outside the Act.
The Act achieves this purpose by enabling orders that can grant exemptions from, modify or extend specified enactments.
The effects of this order are set out in the explanatory note. This statement of reasons describes why the Minister is satisfied the matters in section 9(1) of the Act are met and therefore, why the Minister considers it appropriate to recommend the making of this order to the Governor-General.
Also, in accordance with section 9,—
(a)
the Minister confirms that a draft of the order (and statement of reasons) has been reviewed by the Christ Church Cathedral Reinstatement Review Panel and that the Minister has had regard to its recommendations on the draft order (see section 9(1)(b) and (d)(i)):
(b)
the Minister confirms that a draft of the order (and statement of reasons) has been provided to the Committee of the House of Representatives that is responsible for the review of disallowable instruments and that the Minister has had regard to its comments on the draft order (see section 9(1)(c) and (d)(ii)):
(c)
the Minister confirms that the Minister has consulted with the Minister of the Crown who, with the authority for the Prime Minister, is for the time being responsible for the administration of any Act that is subject to the draft order (see section 9(1)(e)):
(d)
the Minister confirms that the engagement process under section 10 has been complied with and that the Minister has had regard to the comments received (see sections 9(1)(f) and 10(1)(d)):
Minister’s reasons for recommending order under section 9(1) of Act
The Minister considers that these modifications to the RMA are necessary and desirable for the purposes of the Act, to facilitate the reinstatement of the Cathedral in a way that is efficient, cost-effective, and certain. The Minister considers that the approach taken is appropriate, with matters of control that will manage or mitigate certain effects of reinstatement of the Cathedral without impeding the delivery of the purposes of the Act. The order is proportionate to the problem it is trying to solve. Further, the order does not permit any activity (ie, does not enable any reinstatement activity to proceed without a resource consent).
The remainder of this document sets out the general reasons for the order, followed by clause-by-clause explanation.
General reasons for order
The Minister considers the order to be both necessary and desirable, as using processes other than the Act would cause delays, further costs and uncertainty for the project. This would be inconsistent with the intent of Parliament in enacting the Act, and with the Act’s purposes.
CCRL began the stabilisation of the Cathedral in May 2020 and it has resource consent for this work. This is the first stage of work on the Cathedral. It is set to begin work on the reinstatement of the Cathedral in approximately mid 2021 and set to complete the Cathedral project in approximately 2027. The reinstatement work is based on the concept design. It will require further resource consent, which the order will support. CCRL’s timeframe assumes that an expedited consenting process will be possible.
If the normal RMA process is used to process future resource consent applications for the Cathedral, it would be likely to create delays and increase costs and uncertainty for the project. This is because under the RMA process, the resource consent applications for reinstatement would very likely need to be publicly notified. This is due to the special circumstances that surround the Cathedral and the public interest in its reinstatement as a widely-recognised emblem of Christchurch. Public notification can also occur for resource consent applications through normal processes when effects are deemed to be more than minor. That is expected to be likely in this case.
As a consequence of the requirement to publicly notify, the consideration of the resource consent application through normal RMA process will—
be likely to cause significant delays to the project of between 6 months and 2 years (including possible appeal of decisions). Depending on the length of these delays, work on the project could potentially stop after the site is established and stabilised, adding further costs to re-establishing the site once consent is granted:
be likely to cause an increase in costs at a rate of $300,000 for every month of delay:
not have a certain outcome, as the consent authority may still decline the resource consent and parties could appeal the decision.
If the resource consent is declined, aspects of the Cathedral will have to be redesigned. This will cause costs of millions of dollars for professional services such as architects and engineers, increase construction costs, and create further delays. It is likely that after a delay for public notification, appeals and redesign, costs would increase by multiple millions of dollars. It will likely also have a detrimental impact on fundraising, as large donors are unlikely to commit their funds without understanding the full concept design. CCRL does not wish to release the concept design to the public without having certainty of resource consent first.
The proposed resource consent application pathway departs from the normal process in a way that serves the purposes of the Act. The order would change how the RMA applies to future resource consent applications to support the Cathedral’s reinstatement.
The order would set out an expedited process that requires resource consent applications for Cathedral reinstatement to be granted without notification. It would do this by—
treating all restricted discretionary and discretionary activities relating to the reinstatement of the Cathedral as controlled activities, except for demolition without restoration or reconstruction:
preventing the notification of future resource consent applications relating to reinstatement work on the Cathedral:
providing an ability for consent authorities to impose conditions on the resource consents in relation to certain matters, including appropriate conditions for the removal of the Citizens’ War Memorial and the London plane trees (if necessary for reinstatement):
requiring the processing of resource consent applications within 40 working days:
requiring consenting authorities to seek written comment from specified parties for at least 15 working days, during the 40-working-day processing time:
preventing appeals against a consent authority’s decision, except by the applicant:
allowing the consent authorities to enforce conditions, but removing the ability of the public to do so.
The order would also use the same definitions for Cathedral and reinstatement that are used in the Act.
Compared with processes and requirements outside the Act, this order would facilitate reinstatement of the Cathedral in an expedited and more cost-effective manner, achieving earlier and greater certainty for the owner of the Cathedral and the Christchurch community generally. Consistent with the Act, its approach therefore recognises the Cathedral’s contribution to cultural, social, and economic wellbeing in Christchurch, its importance to Christchurch’s regeneration, and its heritage value.
In relation to clause 3 (revocation)
A resource consent application to the Christchurch City Council and Environment Canterbury is currently expected later in 2020, however, the order allows for further resource consent applications to be submitted if required. The duration of the proposed order is necessary and desirable because it ensures the consent authorities can carry out their monitoring and enforcement functions if required, across the lifespan of the project. The commencement of each phase of the reinstatement project is contingent upon having sufficient funding available, which means the duration of the whole project is estimated to be between 7 and 10 years.
In relation to clause 5 (application)
It is necessary and desirable to ensure that a resource consent application cannot be made for demolition unless it is in conjunction with restoration or reconstruction. This is appropriate as it reassures the public and consent authorities that the demolition of the entire Cathedral and replacement of it with a new build will be prevented.
In relation to clause 7 (suitably qualified and experienced experts)
It is necessary and desirable to set out that the experts referred to in the order must be suitably qualified and experienced and independent of the reinstatement project. This clause ensures the transparency and integrity of the processes set out by the order.
In relation to clause 8 (controlled activities)
Without the order, a resource consent application would be likely to be declined, because the reinstatement may require the removal of up to 3 London plane trees and will require the removal of the Citizens’ War Memorial. Activities relating to this are classified as discretionary under the Christchurch District Plan. This would create uncertainty for reinstatement. Appeals could be pursued by CCRL but that would delay reinstatement and increase the costs associated with the project. This approach would therefore be out of step with the purposes for which the Act was enacted.
Costs would also increase if appeals are lost and work is required to redesign aspects of the Cathedral and ancillary buildings in a way that secures resource consent. This would result in further costs for professional services such as architects and engineers, increase construction costs, and create further delays. It would also potentially have a detrimental impact on fundraising.
It is likely the above delays, including public notification, appeals, and redesign, would increase the cost of the project by multiple millions of dollars. It is therefore necessary and desirable to modify the existing activity status, in order to meet the purposes of the Act. While a permitted activity approach could support the purposes of the Act, a controlled activity approach is considered more desirable, as it would retain the ability to place appropriate controls on reinstatement (as discussed further below) while also ensuring the timeliness, certainty, and cost-effectiveness of the project by requiring the local authorities to grant consents and reducing the cost implications as above.
Clause 8 also places conditions on the possible removal of the London plane trees and the Citizens’ War Memorial. The removal of the Citizens’ War Memorial may only be a controlled activity if removed in accordance with a heritage management plan, and a certification from an engineer that removal is necessary. A London plane tree may only be damaged or removed in accordance with a tree management plan and only if necessary (as certified by an engineer and a technician arborist) and all workable options have been considered. These controls are necessary and desirable to recognise the importance of the Citizens’ War Memorial and the London plane trees, while also ensuring that the removal is enabled if it is necessary to provide for a timelier, more cost-effective, and more certain reinstatement.
In relation to clauses 9 to 14 (matters of control)
It is necessary and desirable to specify matters in respect of which control can be imposed. This is appropriate because any matters of control contained in the relevant RMA planning documents will not be applicable to the deemed controlled activities required for the reinstatement work. The matters of control have been developed to include the key potential effects of the reinstatement activities—
(a)
involving heritage upgrade works, deconstruction, reconstruction, and restoration (clause 9):
(b)
involving alterations, new buildings, and signs (clause 10):
(e)
affecting the Citizens’ War Memorial (clause 13):
(f)
affecting the London plane trees (clause 14).
This approach to matters of control enables the consent authority to impose conditions on activities that may have wider environmental effects on the surrounding area, thus providing an appropriate check and balance on reinstatement. However, the matters for control, and the provisions governing those matters, are limited to those activities or matters on which the imposition of conditions will not impede the timeliness, cost-effectiveness, or certainty of reinstatement. This is considered necessary and desirable, given that including other conditionality, for example, limiting reinstatement to within the footprint of the existing Cathedral is anticipated to introduce significant uncertainty for the project, causing delays or significantly increased costs.
Clauses 9 to 14 will also provide appropriate regulatory oversight on reserved matters of control.
In relation to clause 15 (determination on non-notified basis)
Under the RMA process, a resource consent application for reinstatement would very likely need to be publicly notified due to the special circumstances that surround the Cathedral, including the high public interest in the reinstatement. Public notification can also occur when effects are deemed to be more than minor, which is likely in this case.
Consequences of the requirement to publicly notify any consent applications would—
(a)
be likely to cause significant delays to the project of at least 6 months and up to 2 years, if there are appeals on decisions. Work on the project could potentially stop after the site is established and stabilised:
(b)
be likely to cause an increase in costs at a rate of hundreds of thousands of dollars for every month of delay:
(c)
not have a certain outcome, as the consent authority can still decline the resource consent and parties can appeal the decision.
Given the need to reinstate the Cathedral efficiently, CCRL requires a method of obtaining consents as soon as is feasibly practicable. The time frames associated with the standard submission process (including decisions on notification, and the time frame for public submissions and hearings and appeals) would prevent consents from being obtained in the required time frame, which is approximately by the end of 2020. If CCRL is able to secure resource consent by the end of the year, it will be able to secure the contractors and materials needed to begin the actual reinstatement of the Cathedral. It will also be able to overlap the stabilisation and reinstatement phases of the project.
It is necessary and desirable to modify the public and limited notification processes because this will facilitate reinstatement in an expedited manner, be more cost-effective, and achieve earlier and greater certainty as to the reinstatement, than would be likely under processes and requirements outside the Act.
This clause replaces sections 95 to 103B of the RMA, regarding public notification and hearings.
In relation to clause 16 (modification of RMA)
Clause 16 sets out sections of the RMA that are modified or disapplied, including 104, 104A, 105, 108, and 108AA. This is necessary and desirable to assist the consent authorities in the processing of any resource consents.
Given the order treats the resource consent activity status for reinstatement as a controlled activity, there are likely to be a number of areas where the resource consent sought will not align with the existing provisions of the relevant RMA planning documents. Therefore, it is necessary and desirable to exempt consent authorities from the requirement to have regard to the various RMA planning documents referred to in sections 104, 104A, 105, 108 and 108AA of the RMA.
Removing the requirement for consent authorities to have regard to those planning documents will avoid any potential conflict between those planning documents and the requirement to grant resource consent.
In relation to clauses 17, 19, and 20 (consent authority must notify certain persons and invite comments)
To address the limits on public participation due to the suspension of public and limited notification, clause 17 introduces an alternate process for specified parties. The time frame for the process in clause 17 is necessarily short, (at least 15 working days, within the 40-working-day time limit (see clauses 19 and 20) in order to ensure that there is no undue delay to the commencement of reinstatement work. An invitation is to be treated as a document to be served for the purposes of the RMA and section 352 of the RMA applies accordingly.
The list of specified parties has been kept short, with an allowance for any other person the consent authority considers appropriate to be invited to make a written comment. This approach reflects that the order limits appeal rights, which is necessary and desirable to provide greater certainty for the reinstatement, while it does not prevent the consent authority from identifying additional parties if appropriate.
Further, it is necessary and desirable that those persons who are invited to make comments cannot appeal the resource consent conditions, to avoid delays to the reinstatement work and provide optimal timeliness and certainty and avoid additional costs through any delay. This means that section 120 of the RMA cannot be used by written commenters to appeal to the Environment Court and a person who makes a written comment cannot object under Part 14 of the RMA. The appeals process would only be able to be used by the applicant, for example, to appeal conditions.
This process therefore modifies section 114 of the RMA, regarding notification and replaces sections 95 to 103B of the RMA, regarding public notification and hearings.
In relation to clause 18 (summary of written comments)
Clause 18 ensures that a summary of written comments is considered by the consent authority and must be included in the notification of the decision. This is considered appropriate to keep parties informed of any decision on the resource consent application, while not impacting on the outcomes sought by the purposes of the Act.
In relation to clauses 19 and 6 (time limits for notification of decision and extensions)
In order to meet the timeliness expectation in the purposes of the Act, it is necessary and desirable to cap the time frame for processing the application at 40 working days (clause 19) to ensure that the resource consent application for reinstatement work on the Cathedral, which will be large, can be processed within an adequate but finite amount of time. This will prevent undue delays to the project.
It is also necessary and desirable that the 40-working-day time frame cannot be extended (clause 6), except with the agreement of the applicant under section 37(1)(a) of the RMA, so that the Cathedral can be reinstated in an expedited manner. If the consent authority requests more information from the applicant, the normal process in the RMA will apply, under 88C of the RMA. This is appropriate to reassure the public that a resource consent application will be appropriately supported.
In relation to clause 21 (enforcement proceedings)
Under clause 21, enforcement proceedings under Part 12 of the RMA may be taken only by a consent authority. It is necessary and desirable to exclude applications for enforcement orders or declarations by members of the public to ensure that reinstatement work can proceed. The ability for consent authorities to bring proceedings is sufficient to ensure that conditions of consent and designation and other relevant sections of the RMA are not breached. This is consistent with the approach of the Act and is necessary and desirable to provide optimal certainty for the project.