Offshore wind development and regulation in New Zealand

The New Zealand Government announced in 2022 the development of a specific regulatory framework for offshore renewable energy, due to be implemented by 2024. In the meantime, the existing consenting processes will continue to apply to all potential offshore wind energy developments.  While it is unclear yet what changes this new framework may implement, some sense of likely topics for discussion can be drawn from the Australian regime (noting however that there are key differences in approach to relevant issues in New Zealand including environmental and management of the coastal environment).  

In October 2023, NZ had a general election and a coalition government has been formed between the National party, the ACT Party and New Zealand First. The Resource Management Act 1991 (one of the current pieces of legislation that applies to offshore wind projects) had just been subject to significant reform prior to the election, with replacement legislation passed in August 2023 (the Natural and Built Environment Act 2023 (NBA) and the Spatial Planning Act 2023 (SPA)).  Following the general election, the new Government repealed both the NBA and SPA at the end of last year.  For the most part, the Repeal Act ensures the RMA continues to apply as if the NBA and SPA had never been passed (but it does retain an interim fast track consenting process, which is due to be replaced with a permanent one, to be introduced in March 2024).  Further reform is to follow over the term of this government.

The coalition agreement for the new government do not mention offshore wind specifically, but do refer to amending the Resource Management Act to make it easier to consent renewable energy infrastructure and to facilitate connections for onshore and offshore generation resources. There has also been media statements in February 2024 which have confirmed the new government intends to introduce legislation in 2024 to help fast track offshore wind development.

Despite the current relative lack of certainty, at the time of issue, it is reported that there are a number of international developers interested in building in New Zealand.

Regulatory overview for environmental consents

The existing framework is not specific to offshore wind farms, but any such developments are captured by two co-existing legislative regimes. Both start at the position that there are no absolute rights to the use of the seabed, unless allowed for or granted by the relevant authorities.

At a general level, the Resource Management Act 1991 (RMA) has jurisdiction for any developments within 12 nautical miles of the coast, while the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act) applies within the Exclusive Economic Zone (EEZ) which is from 12 to 200 nautical miles from the coast. The two regimes have close similarities and effectively regulate the environmental consents that will be required for offshore activities (and the RMA for any onshore activities).

Under the RMA:

• The controls in the RMA are based on a hierarchy of national level guidance (including National Environmental Standards (NES)), regional policy statements, regional plans and district plans. The primary consenting function sits with local authorities (albeit there are various fast track processes available which can have different decision makers). The rules that apply can therefore differ between each region and district.  If an offshore wind farm spans more than one district, or a district and a region then separate applications to different entities are likely to be needed.  However, the RMA does provide for a coordinated decision-making approach where the applications all relate to the same proposal and there are multiple applications and/or multiple consent authority decision makers (noting that some of the fast track processes have a slightly different approach, depending on which one is used).  If a District and Regional Council are involved, the Regional Council will usually lead the process.
• It is likely that resource consents under the RMA will be required for the construction, development and operation of an offshore windfarm. Each type of consent (eg, land use consent, subdivision consent, water permit, discharge permit, coastal permit) will need to be individually applied for but as set out above, it is likely they will be processed together when they relate to the same proposal.     This process will include the consent authority considering environmental effects, relevant objectives and policies in the relevant planning documents and most likely consultation with “affected persons” (this will usually include iwi and hapū (indigenous Māori groups)  and is likely to include public notification, and the hearing of evidence and submissions from any persons who submit on the proposal.

Under the EEZ Act:

• The Environmental Protection Authority (EPA) is the government agency responsible for managing the effects of specified activities under the EEZ Act.
• The EEZ Act starts from the position that no activities are allowed in New Zealand’s EEZ, unless the Act specifies that they can happen. There are three classes of activities:
  • discretionary activities, which require permission from the EPA to go ahead in the form of marine consents (and may or may not be notified);
  • permitted activities, which can go ahead without a marine consent, as long as certain conditions are complied with so that the activity is carried out legally; and
  • prohibited activities, for which marine consents cannot be granted.
  • These activities are defined in a series of regulations issued under the EEZ Act.
• To secure rights to an area of seabed within the EEZ to develop an offshore wind farm in New Zealand, it is likely a marine consent will be required. The EPA will consider similar factors to those identified above in relation to the RMA, such as immediate and broader environmental impacts, iwi and hapū positions, and if notified, it can hear public submissions on the application.

For both processes, there is likely to be appeal rights and the consents will have a limited duration (usually with a maximum of 35 years).

Ownership of seabed in New Zealand

As a general principle, there is no ownership of the seabed in NZ as a result of the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act). However, under the MACA Act, there is a process in place that allows iwi, hapū and whānau (indigenous Māori groups) to apply for certain rights in relation to the foreshore and seabed (out to 12 nautical miles).  The issuing of these rights is in the early stages in New Zealand) but once issued, are likely to have a significant impact on resource consents under the RMA and a material influence on where an applicant decides to locate turbines and cabling.  This is because the holder of such rights can veto certain resource consent applications, or at least the MACA Act may require a local authority to decline consent – for example, where the proposal is likely to have a more than minor effect on a protected customary right.  Early engagement with these groups and an understanding of this legislation, along with protocols around iwi engagement will be key.  Under the MACA Act, Land Information NZ is responsible for maintaining a marine and coastal area register as a record of documents relating to customary marine interests.  This includes all granted orders so far (mostly in East Cape of NZ and Stewart Island at the date of issue) - Marine and Coastal Area Register | Toitū Te Whenua - Land Information New Zealand. 

In addition, while these applications are awaiting determination, then any person lodging a resource consent application in the coastal marine area will need to notify the applicant group of the application and seek the views of the group on that application (this is a requirement of the MACA Act). There is mapping available to show where these applications are and who the applicants are - Te Kete Kōrero a Te Takutai Moana Information Hub (Kōrero Takutai). 

Other permits, rights approvals

As noted above, there is no coordinated regulation relating to rights in an area of seabed in New Zealand that regulate offshore wind developments. There is no state-run process at this stage.  A variety of applicable legislation will apply and some of the key ones are referred to above.  The onus is on the developer to obtain all necessary consents and approvals. Similarly, at this stage there is no integrated process for obtaining other consents and approvals (such as grid connection arrangements).  However, as discussed above, we would expect this to be the subject of significant work over the next 12-24 months as the new regime is developed.