3 and 2 home relocations), and road/rail reinstatement. This may include potential Orders in
Council.
Making any additional Orders in Council needed to remove red tape to speed up cyclone and
flood recovery efforts is one of the Government’s 100-day priorities. We are preparing advice
on whether amendment of SWERLA is required to achieve these aspirations, or whether
another legislative vehicle (such as a stand-alone omnibus Bil ) is required.
Some of the concerns raised about consenting timeframes may be addressed in other
government priorities, such as the amendments to the Resource Management Act 1991 to
make it easier to consent new infrastructure (depending on the timeframe for those
amendments).
The CRU wil coordinate a process whereby portfolio ministers come to Cabinet by 23 February
2024 for policy decisions on any additional Orders in Council under the Severe Weather
Emergency Recovery Legislation Act 2023 needed to speed up recovery efforts.
Limitations of Orders in Council under SWERLA
While in some instances using the Orders in Council mechanism is faster than amending
primary legislation, it is not always so. The timeframe to enact Orders for complex and multi-
interest Orders can take four or five months.9 Largely, the Orders being proposed now are
complex.
The constraints of the legislation have become apparent as councils request regulatory relief
for future-focussed resilience efforts. Because Orders need to be closely related to the Act’s
purpose of “respond[ing] to, and recover[ing] from, the impacts of the severe weather events”,
the use of SWERLA becomes more limited as time passes since the weather events.
For example, the Ministerial Inquiry into Land Use report proposed the use of Orders in Council
to amend the National Environmental Standards for Plantation Forestry to immediately restrict
harvesting in at-risk areas and limit clear-fell harvesting. It also directed a review of existing
forestry consents to require current consent holders to comply with these new higher
standards. s9(2)(h)
10
Councils have also raised the need for more permissive approaches to consenting, including
creating new bespoke approvals processes. The CRU, in consultation with relevant agencies,
is considering the most appropriate vehicle (e.g., an Order in Council under SWERLA, primary
legislation such as a standalone Omnibus Bil ) to progress the changes that are being
proposed.
Flood and landslide affected properties
Proactively Released
The FOSAL policy approach is about reducing intolerable risk to life from future severe weather
events. The approach is focused on residential properties impacted by the NIWE, with local y
9 For example, the relatively simple and uncontroversial changes to extend completion dates for revaluations by Hastings District
Council were completed within six weeks; whereas the extremely complex matter of reinstating roading and rail networks,
which modified multiple pieces of legislation and required lengthy consultation, took four months to complete.
10 Legally privileged, not to be released.
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led interventions to mitigate risk (where possible) or buyout properties (where there is no other
viable option). More detail on FOSAL is provided in a separate companion briefing.
The objectives of FOSAL are to:
• provide people with as much certainty as possible about their situation, so that they
can move forward with their lives;
• to the extent practicable, get the ‘right’ solution in the right place – this will mean
different solutions in different locations; and
• avoid significant financial hardship – rather than avoiding any financial loss for those
affected.
FOSAL policy responses are determined by categorising affected properties according to the
framework shown in figure 3.
Figure 3: How risk is assessed
Responsibility for categorisation of properties sits with local authorities because they have the
statutory responsibility for land-use decisions. Local authorities are also responsible for any
voluntary buyouts of residential properties including the detailed approach and timeframe.
While the overall FOSAL objectives are the same, the approach to whenua Māori and marae
Proactively Released
is different due to whakapapa, collective governance and ownership agreements. For example,
for Category 3 properties on whenua Māori, voluntary buyouts would likely not be
appropriate.11 The whenua Māori and marae pathway is led by central Government, in
recognition that Treaty responsibilities towards whenua Māori and other taonga rests primarily
11 For example, the alienation of Māori freehold land, Māori Customary Land, and Māori Reservations is subject to the provisions
of Te Ture Whenua Māori Act 1993.
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Proactively Released
Councils in other regions affected by the NIWE were informed by the previous Minister for
Cyclone Recovery on 25 September that – should they identify any Category 3 buyouts – the
Crown would share the cost on the same basis as agreed with Auckland, Gisborne and
Hawke’s Bay councils (i.e., 50 percent of the net cost, less insurance and EQC payments).
Should any of the other affected councils choose to offer any Category 3 buyouts to property
owners, you have the authority to approve a cost-sharing contribution from the Crown. The
relevant council(s) would then need to enter into a Funding Agreement with the Crown.
Additionally, some councils wil identify Category 2 properties, requiring either community or
property level interventions. At this time, there is no clear indication of the scale of interventions
that may be required. The CRU has advised councils of the funding pathways available
(primarily the Local Government Flood Resilience Co-investment Fund and NRP; further
information is provided from page 26) and continues to meet regularly with councils as they
progress Category 2 risk mitigation projects and other flood resilience initiatives.
s9(2)(j), s9(2)(ba)(i), s9(2)(ba)(ii)
FOSAL implementation
The implementation responsibilities for FOSAL are shared between central and local
government:
• Local authorities lead on designing and delivering a FOSAL voluntary buyout scheme
identifying, planning and delivering interventions for Category 2 areas.
• Central Government provides support for councils as they deliver these interventions,
to ensure that the policy intent of the FOSAL programme is maintained and provide
monitoring and assurance for the Crown’s financial support.
• Central Government implements the whenua Māori and marae pathway and works with
affected individuals and communities to deliver appropriate relocation solutions.
The EWR (using its Powers to Act to take decisions on the Government’s response) agreed
Proactively Released
that the CRU wil hold the overall lead central Government responsibility for FOSAL
programme implementation.
Implementation support and administration of funding
In recognition of the significant investment the Government has made in the NIWE recovery,
a focus for this next phase of the recovery is implementation and administration of funding,
which requires:
PAGE 17
• policy and communications support;
• contractual relationships with councils to fund initiatives;
• timely disbursement of Crown funding to local authorities; and
• coordination of monitoring of delivery of Crown funding and reporting to Ministers.
By closely monitoring the investments it is responsible for administering, the CRU wil be able to
identify and manage risks, raise critical concerns to you in a timely manner, and provide you with
system-level advice regarding additional support local authorities and communities may need
across a range of avenues (including, but not limited to, financial support).
The CE-CR is overseeing the administration the funding for the three most affected regions set
out in table 1, and funding be provided through the whenua Māori and marae pathway. Should
other NIWE-affected councils identify Category 3 properties, the CE-CR wil need to enter
contractual relationships with those councils for the cost share of property buyouts.
A funding offer has also been made to Nelson City Council in response to the August 2022
severe weather event. The offer is for $12.30 mil ion, which includes a 50 percent share of
property buyouts, remediation of several slips threatening residential properties, and funding for
ongoing slip monitoring. The council has approved the offer, subject to public consultation that
is expected to occur in March/April 2024.
The CE-CR is engaging Crown Infrastructure Partners Limited (CIP)15 for a period of five years
to support delivery and monitor councils delivery on agreed initiatives funded through the FOSAL
cost-sharing, Local Government Flood Resilience Co-investment Funding, and the Nelson
support package. CIP has well-established assurance, monitoring, evaluation and reporting
systems that wil be invaluable in supporting delivery where needed and monitoring the nearly
$1.80 bil ion Crown funding being administered by the CE-CR. Funding has been secured for
CIP to perform its stated recovery functions until 2028.
As the CE-CR and the CRU are time limited functions, its implementation and reporting functions
wil transition to enduring line agency(ies) from 2025. Options for transitioning the ongoing
implementation functions wil be provided to you in September 2024. The options wil consider
costs that would be incurred by the agency(ies) taking on the implementation functions after the
CE-CR and CRU are stood down.
Recovery by region
The following pages provide snapshots of the current situation in each NIWE-affected region:
Proactively Released
15 CIP is a Crown-owned company, which works as a multi-policy implementation agency that funds delivery partners (private
sector and local government) to deploy infrastructure projects. Formerly known as Crown Fibre Holdings, with a purpose
focused on building telecommunications infrastructure (e.g., ultra-fast broadband, rural broadband and mobile voice and data
coverage), CIP had its purpose formally widened (and name changed) in September 2017 to include infrastructure-related
activities. CIP has several policy Ministers (Minister of Finance, Minister for Infrastructure, Minister for the Digital Economy and
Communications) and shareholding Ministers (Minister of Finance and Minister for State-Owned Enterprises).
PAGE 18
IN-CONFIDENCE
Coversheet
Overview of the Future of Severely Affected
Locations Policy and Implementation
Date:
27/11/2023
Report No:
DPMC-2023/24-457
Security Level:
Priority level:
Medium
Action sought
Deadline
Hon Mark Mitchel
note the information
N/A
Minister for Emergency Management and Recovery
in this briefing
Name
Position
Telephone
1st Contact
Katrina Casey
Chief Executive, Cyclone
9(2)(g)(ii)
9(2)(g)(ii)
✓
Recovery
9(2)(g)(ii)
Executive Director, Strategic 9(2)(g)(ii)
9(2)(g)(ii)
Policy and Legislation
Minister’s Office
Status:
☐ Signed
☐ Withdrawn
Comment for agency
Proactively Released
Appendix:
Yes
IN-CONFIDENCE
IN-CONFIDENCE
Briefing
Overview of the Future of Severely Affected
Locations Policy and Implementation
To: Hon Mark Mitchell
Minister for Emergency Management and Recovery
Date
27/11/2023
Security Level
IN-CONFIDENCE
Purpose
1.
This briefing provides you with an overview of the Future of Severely Af ected Locations
(FOSAL) policy approach and an update on implementation progress.
Executive Summary
2.
The FOSAL policy approach is a local y led, centrally supported process to address the
future use of land that was severely affected by the North Island Weather Events (NIWE).
It is intended to reduce intolerable risk to people from extreme weather related natural
hazards by mitigating risk where possible, and moving people out of harm’s way where
those risks cannot be mitigated.
3.
Regional councils and unitary authorities are responsible for categorising land based on the
underlying risk of flooding and landslides from severe weather events and delivering the
appropriate policy responses. This includes risk mitigation projects and, where necessary,
voluntary residential property buy-outs. Central Government’s role is to set the high-level
framework, provide funding support to councils and co-ordinate implementation. The
Cyclone Recovery Unit (CRU) coordinates the Government’s responsibilities, including
trouble shooting, monitoring, and reporting on delivery and Crown expenditure.
4.
Alongside the local y led FOSAL approach, the Government has established a parallel
pathway to address severely affected whenua Māori and marae. This pathway recognises
the distinct chal enges that arise with whenua Māori, including relatively complex
governance and compliance requirements, and multiple or fragmented ownership. The
pathway also affirms the Crown’s duties toward the protection of whenua Māori and
associated values and practices.
Proactively Released
5.
FOSAL implementation is underway in the three regions most af ected by the NIWE –
Hawke’s Bay, Tairāwhiti and Auckland. The Crown has agreed to over $1.6 bil ion of FOSAL
funding support for councils in these three regions. The first buyout of ers are now being
made by some councils and we expect some to be finalised before the end of the year.
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6.
Agreed risk mitigation projects are in various stages of readiness to progress, although
given the scale and complexity involved, completion of all these projects wil take several
years. The funding support packages for severely affected whenua Māori, which are subject
to Ministerial approval, will be implemented later than the start of the council led buyouts,
as further policy, investigation, and procedural work is undertaken.
7.
Other councils in regions outside of the three most af ected regions are also considering
FOSAL policy responses but are further back in the process. The scale is much smaller in
these regions (we anticipate that only a small number of buyouts and risk mitigation projects
wil be required) but the overall impact and corresponding need for Crown funding is stil to
be determined.
8.
As the implementation of FOSAL gathers momentum, we anticipate a range of issues wil
emerge that may require some degree of intervention from central Government. These may
include:
• Councils seeking to access funding rapidly to get risk mitigation projects underway.
• Cost-sharing agreements needing to be revisited to accommodate changing property
categorisation numbers.
• Perceived inequities in the scope, terms, and timing of property buyouts between
dif erent regions.
• Property buyouts leading to disputes and legal challenges.
Released
• Long timeframes to complete risk mitigation projects.
• Councils seeking regulatory options to speed up consenting processes.
• Ongoing uncertainty about solutions and funding needs in other NIWE-af ected
regions.
Recommendations
We recommend you:
1.
note the contents of this briefing.
Hon Mark Mitchell
Proactively
Katrina Casey
Minister for Emergency Management and
Chief Executive Cyclone Recovery
Recovery
27/11/2023
…./…./2023
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Development of the FOSAL approach
1.
In April 2023, the Extreme Weather Events Cabinet Commit ee (EWR) considered advice
on a principles-based framework for decisions that need to be made to support communities
and property owners to repair, rebuild or move [EWR-23-MIN-0030 refers].
2.
FOSAL policy development has been co-ordinated by the CRU and jointly led by the
Treasury and the Ministry for the Environment (MfE). Lead responsibility for co-ordinating
the Crown’s role in implementation was assigned to the Chief Executive, Cyclone Recovery
in August 2023.
3.
EWR agreed to three overall objectives for the approach:
• Provide people with as much certainty as possible about their situation, so that they
can move forward with their lives.
• To the extent practicable, get the ‘right’ solution in the right place – this wil mean
dif erent solutions in dif erent locations.
• Avoid significant financial hardship – rather than avoiding any financial loss for those
affected.
4.
EWR also agreed to a set of principles that would underpin any interventions in af ected
areas:
Released
• Maintain incentives on individuals, communities, local government, and insurers to
manage risks.
• Any support is appropriate and proportionate to enable individuals and communities
in severely affected locations to recover from recent extreme weather and satisfactorily
adapt to current and future risks.
• Seek opportunities to reduce long-term risk from natural hazards.
• Risk and options assessments and risk management to be local y led and centrally
supported.
• Manage risk to tolerable levels rather than eliminating it.
• Set any central Government support at a level that can be sustainably offered in
response to future events.
• Ensure that Treaty obligations and the rights and interests of Iwi / Māori are central.
• Target those worst af ected and with the least means to recover.
5.
To determine the appropriate responses required in dif erent locations, the Treasury and
Proactively
MfE, supported by the Cyclone Recovery Taskforce, worked with councils through April and
May to develop a framework for categorising residential properties. The final categorisation
framework is shown in figure 1.
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Figure 1: FOSAL Categorisation framework
6.
Responsibility for categorisation of properties sits with councils because they have the
statutory responsibility for land use decisions. Councils are also responsible for delivering
the resulting policy response.
Released
7.
In May 2023, EWR agreed to a policy approach for the dif erent property classifications
[EWR-23-MIN-0044 refers]. As the least af ected and relatively lower risk areas, Category
1 properties do not require any policy response. Property owners are in the process of
working with their insurers to repair any damage resulting from NIWE and moving on with
their lives.
8.
For Category 2 or 3 areas, there is a significant risk to life for residents from future flooding
or landslides. The exact risk thresholds used dif er between councils, but broadly the
threshold for Category 2 and 3 is that these areas face an intolerable risk to life from future
extreme weather events.
9.
While the level of risk for Category 2 and 3 is similar, the response is dif erent. The key
dif erence is that for Category 2 properties, there is a viable solution to reduce risk to a
tolerable level, while for Category 3, there is no viable solution that could reduce this risk.
10. For Category 2, risk mitigations may be at an individual property (2P) level (e.g., raising
houses or improving drainage) or at a community (2C) level (e.g., building improved
stopbanks). Councils also identified properties as Category 2A, for areas that required
further assessment before making a final categorisation.
Proactively
11. For Category 3, as there is no viable way to reduce risk, the policy response is for local
councils to of er to buy the af ected properties from individual owners, to ensure that the
land can no longer be used for residential purposes. Councils are responsible for
establishing the detailed approach, conditions, and timeframes for buyouts, but in all cases,
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buyouts are made on a voluntary basis. Councils wil take ownership of the property if the
offers are accepted.
12. The FOSAL approach has been primarily focused on Hawke’s Bay, Tairāwhiti and Auckland,
as the three most af ected regions. However, other NIWE af ected regions are also able to
consider FOSAL responses and may be eligible for Crown financial support.
13. The CRU’s role is to lead and co-ordinate central Government implementation, including
the administration of agreed funding support for buyouts and risk mitigation projects. This
also includes responsibility for ensuring legal requirements on the expenditure of Crown
funding are met, monitoring delivery, and reporting to the Government on delivery progress,
associated issues and Crown expenditure.
A parallel approach has been developed for whenua Māori
14. A parallel approach has been developed for severely affected land that is whenua Māori
(primarily Māori freehold and customary land, as defined by the Te Ture Whenua Māori Act
1993), and severely af ected marae. It involves relocating people residing on Category 3
whenua Māori out of harm’s way; retiring that whenua from future residential use; and
contributing to the relocation of severely af ected marae to mitigate risks to persons staying
on site. Māori wil retain ownership of whenua Māori.
15. This pathway was developed in recognition of the fact that the voluntary buyout approach
may not be appropriate for whenua Māori, due to the relative paucity of whenua left in Māori
Released
ownership, the complexities of Māori land ownership and governance, and the distinct
statutory requirements governing Māori freehold land.
16. In contrast to the FOSAL approach for general property owners, the whenua Māori and
marae pathway is led by central Government. The reasons for this include historical y poor
experiences, low levels of trust Māori have of local authorities; and the overarching view
that central Government (the Crown) has direct Treaty of Waitangi responsibilities towards
protection of whenua Māori, and partnership relationships with hapū and iwi that cannot be
delegated to local government. As much as possible, the whenua Māori pathway is intended
to run in parallel with the regular FOSAL approach led by councils.
17. Further details on the pathway are provided in paragraphs 73-93
Whenua Māori and marae
pathway – policy and implementation.
Cost-sharing with local government
Cost-sharing agreements have been reached with the three most affected regions
18. Fol owing the development of the FOSAL policy approach, the Crown entered into
Proactively
negotiations with councils in the most af ected regions (Hawke’s Bay, Tairāwhiti and
Auckland) to determine cost-sharing arrangements between central and local government
(negotiations were led by the Treasury, with Sir Brian Roche, Chair of the Cyclone Recovery
Taskforce, playing a key role).
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19. Negotiations focused on what proportion of the costs the Crown would contribute for
Category 3 buyouts and Category 2 risk mitigation projects. Crown funding contributions
were also of ered for regional transport projects, to help ensure that councils were not left
in undue financial hardship because of their recovery costs.
20. To manage expectations and help to ensure that future funding would be more sustainable,
the Crown’s negotiating position was based on a 50:50 cost share between central and local
government for property buyouts. Throughout the negotiations, the Crown’s negotiating
team was conscious of the potential precedent being set for future extreme weather events
and the level of financial support that would be provided from the Crown.
21. The Crown agreed cost-sharing packages with Hawke’s Bay councils1 on 31 July, with the
Gisborne District Council (GDC) on 24 August and the Auckland Council on 24 August. After
public consultation, and further negotiations on the terms of the packages, the final details
were confirmed through Funding Agreements between the Crown and councils, signed on
6 October with Auckland and Tairāwhiti and with the Hawke’s Bay councils on 10 October.
22. The cost-sharing agreements consist of:
• A 50 percent Crown share (less any insurance and EQC proceeds) of the cost of
voluntary Category 3 buyouts.
• A contribution towards risk mitigation projects for Category 2 properties.
• A contribution toward regional transport projects, to reduce cost pressures on councils.
Released
• A concessional financing arrangement for the GDC. The Council is receiving a $30
mil ion, 10-year loan from the local government Funding Authority, with the Crown
covering the interest costs of the loan (approximately $17 mil ion).
23. The total amount of funding support agreed for councils is summarised in table 1.
Table 1: Agreed funding for FOSAL cost-sharing
Region
Cat 3 buyouts Cat 2 projects Transport
Other
Total
projects
support
Hawke’s Bay
$67.5m
$203.5m
$252.6m
$523.6m
Tairāwhiti
$15m
$64m
$125m Concessional
$221m
financing –
representing
$17.0m value
to council
Auckland
$387m
$380m
$110m
$877m
Proactively
Total
$469.5m
$647.5m
$487.6m
$17.0m $1,621.6m
1 Councils include Hastings District, Napier City, Wairoa District, Central Hawke’s Bay District and Hawke’s Bay Regional Councils.
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24. After reaching agreement with the Crown, councils consulted their respective ratepayers on
whether to accept the agreements during September and October. The Auckland Council
and the Hawke’s Bay councils confirmed acceptance of the Crown offer by early October.
The GDC confirmed acceptance on 1 November.
Cost-sharing has been formalised through Funding Agreements with the Crown
25. Contractual arrangements have been made to formalise and give effect to cost-sharing
agreements. The three regions have signed individual Umbrella Funding Agreements with
the Crown, which set out the terms and conditions under which councils wil receive Crown
funding.
26. Funding Agreements include details of the methodology used to categorise properties and
the methodology for conducting buyouts. These methodologies have been developed
independently by councils. Provision of funding is conditional on councils carrying out
buyouts in accordance with the approach set out in these documents.
27. Funding Agreements also include lists of Category 2 and local transport projects for which
funding has been allocated. While the funding has been secured for these projects, councils
stil need to complete delivery plans for each project (or group of smaller projects) to ensure
that they can be successfully delivered and wil provide the expected benefits. Councils wil
enter into individual project level agreements that sit underneath the Umbrella Agreement,
setting out project milestones and funding profiles. Released
28. At the time of signing the Funding Agreements, councils were stil developing their
categorisation and buyout methodologies and project lists. These remain in draft until
councils provide final versions. Finalising these documents is a condition of Crown funding
– no funding wil be provided until these final documents have been provided. We wil advise
you as these are received or if we have any concerns about their delivery.
29. Since the Agreements were signed, we have already been advised that Category 2A
properties in some areas are being recategorised as Category 3 as viable risk mitigation
solutions cannot be delivered. This wil have implications for the cost-sharing arrangements
between councils and the Crown and could require some renegotiation of terms and
potentially additional funding.
30. 9(2)(g)(i)
Proactively
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FOSAL implementation in Hawke’s Bay, Tairāwhiti and Auckland
Hawke’s Bay
31. Fol owing the Government’s release of the initial FOSAL risk categories in early May, the
Hawke’s Bay Regional Council (HBRC) developed a process and a technical framework to
identify the future risk to life at af ected properties.
32. On 1 June, the first maps showing which areas had been provisionally placed into each
category were publicly released, covering thousands of homes. Those maps continue to be
updated as the Council and its engineers undertake more detailed property specific
assessments.
33. Early estimates identified 236 properties in Category 3, including s 9(2)(a)
properties and s 9(2)(a) , and 2,526 properties in Category 2. Letters/emails were sent to
those property owners advising of the initial categorisation.
34. The HBRC is leading land categorisation decisions on behalf of the four Hawke’s Bay
councils. It has relied on a wide range of data, including high-resolution imagery taken by
plane after the cyclone, information from stickered house assessments (provided by
individual councils), insurance information, data and pictures collected by trawling social
media, as well as site visits. The HBRC also has its own extensive data on flood risks and
catchments. Property owners can provide further information to support a categorisation
change or review.
35. The initial maps released on 1 June were produced by the HBRC in a matter of weeks, and
more detailed assessments were required for Category 2A areas. This has meant the
number of properties in Category 3 has been growing since June – from 236 homes on 1
June to 287 by early October.
36. Of these 287, only 140 have residential dwellings on them. The remainder would only be
eligible for a buyout under special circumstances (see details of the Hawke’s Bay buyout
policy in paragraph 43).
Community consultation and confirmation of categorisation
37. The initial categorisations identified that of the four councils, Category 3 residential
properties were in two council areas. From mid-June to early September, the Hastings
District and Napier City Councils undertook public consultation with provisional Category 3
communities, explaining the categorisations settings and the upcoming work to refine the
initial categorisation of properties. Community meetings were held across Hawke’s Bay to
assist property owners to make submissions by 7 September.
Proactively Released
38. From early September until early October the HBRC considered submissions from Category
3 property owners. Councils also consulted ratepayers on whether to accept the Crown’s
cost-sharing package for Hawke’s Bay.
39. On 4 October, 287 properties across Hastings and Napier were confirmed as Category 3,
marking a significant milestone in the HBRC’s land categorisation process. This
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confirmation allows for buyouts of Category 3 residential properties across Hawke’s Bay to
commence. Updated numbers of properties categorised as provisional Category 2P, 2C, 2A
or confirmed Category 3 across the Hawke’s Bay region are as follows.
Table 2: FOSAL categorisation numbers for Hawke’s Bay as at 3 October 2023
Council
Cat 2P
Cat 2C
Cat 2A
Cat 3
Total
Hastings
1
149
88
265
503
Napier
-
-
-
22
22
Central Hawke’s Bay 8
-
127
-
135
Wairoa
-
-
667
-
667
Total
9
149
882
287
1,327
40. Since the numbers in table 2 were confirmed, the HBRC has informed the CRU that one
location provisionally identified as 2A (s 9(2)(a)
– which has 37 af ected properties)
is now likely to be reclassified as Category 3, as the intended risk mitigation solution is not
viable. The CRU is engaging with the Council to determine the impact of this decision on
the cost-share agreements and potentially funding. Released
Buyout process
41. On 9 October, the Hastings District and Napier City Councils sent letters to the 287 Category
3 general title property owners, informing them of next steps – including detail about the
buyout process and a guide for residents to help navigate the process.
42. A council-led voluntary buyout of ice has been operating since 24 October to support
Category 3 property owners who want to consider an offer. Councils are now meeting with
property owners to discuss the specific details of an of er. Once these preliminary meetings
have been held and owners have indicated they want to progress, the property’s insurance
status wil be confirmed, a valuation wil be completed, and a formal of er wil be made.
Councils have submitted a payment request of $1.7 mil ion for six buyouts, (four in Hastings
and two in Napier), that they anticipate wil be completed by 22 December 2023.
43. The key elements of the Hawke’s Bay voluntary buyout policy are:
• It applies to residential property, or mixed-use property on Category 3 land, that had a
dwel ing prior to Cyclone Gabrielle.
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• Residential land without a dwelling is excluded, except at the discretion of councils in
special circumstances (such as where a resource consent is in place and there is
evidence of a genuine intention to begin building a dwelling).
• Two of ers are available – a purchase of er where ownership of the property is
transferred to the council; or a relocation of er for mixed-use property (>2ha) where
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the council purchases the dwelling, but property owners retain the land (a covenant
wil be registered on the title to prevent future residential activity).
• The council wil base its of er on a 100 percent valuation of the property as at 13
February 2023, and it is uncapped.
• There is no distinction in the of er applied to insured or uninsured property.
• Councils wil provide property owners up to $5,000 for an independent valuation, and
$5,000 for legal costs.
• Property owners may request a review of their case from the council’s Chief Executive,
but no further local dispute process is being provided as the of er is voluntary.
• Buyout offers wil remain open for three months after it is first made to the property
owner (although extending this period is possible if progress is being made towards a
final agreement).
44. The dispute process provided for in the buyout policy only applies to the terms of the buyout
that the Hastings District or the Napier City Council is offering (such as the valuation amount
or terms of the of er). It does not consider disputes about categorisation. Decisions about
which category a property falls into are made by the HBRC, on behalf of all the Hawke’s
Bay councils. It is unclear how separate dispute processes may align or be coordinated
between councils and the CRU is following up on this as details emerge.
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Tairāwhiti
45. The GDC released provisional FOSAL Category 2 and 3 maps on 9 June. Early estimates
identified 18 Category 3 and 1818 Category 2 properties.2 Letters/emails were sent all
Category 2 and 3 property owners advising of the initial categorisation.
46. Council led community hui were held across the region to explain the categorisation set ings
and the upcoming work to refine the initial categorisation of properties.
47. As at 1 November, 51 properties are provisionally Category 3, including s 9(2)(a)
properties and s 9(2)(a)
, with a further 770 homes in Category 2A, requiring some form
of property or community level flood protection intervention to make them safe to live in.
48. The Crown and the GDC cost-sharing agreement was announced on 24 August. Based on
this package, the GDC consulted its community from 2 to 16 October on whether to
establish a new activity to purchase Category 3 properties, and whether to accept the
Crown’s cost share package.
Buyout process
Proactively
49. The GDC considered the results of community consultation on 1 November and has
confirmed that it wil accept the cost share package and the approach that it wil take to
buyouts. The GDC is writing to all Category 3 property owners to set out next steps now
2 Most of these properties were identified as Category 2A, requiring further assessment.
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that this decision has been made. The most recent information from the GDC is that it wil
start making formal buyout of ers from the end of January 2024.
50. The GDC has not yet provided the Crown with its final buyout methodology. However, the
policy agreed by the council on November 1 includes the following settings:
• Residential property, or mixed-use property on Category 3 land, that had a dwelling
prior to Cyclone Gabrielle is eligible.
• Properties larger than 1 hectare wil be treated as mixed-use and only offered a
relocation of er rather than outright purchase, properties smaller than 1 hectare may
receive a relocation or purchase of er.
• Of ers wil be for 100 percent of the property value, based on an individual market
valuation as at 12 February 2023, and it is uncapped.
• There is no distinction in the of er applied to insured or uninsured property.
• Property owners are eligible for up to $1,500 for legal costs (other costs such as an
independent valuation are not included).
• Property owners may request a review of their case from the council’s Chief Executive,
but no further local dispute process is being provided as the of er is voluntary.
• The council wil specify the expiry date for an of er, which wil be no later than 31 March
2025.
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Auckland
51. In May, the Auckland Council estimated that there would be approximately 700 Category 3
properties, based on the number of red stickered properties following rapid building
assessments. This included areas severely af ected by landslides in Muriwai, Piha and
Karekare, along with flood af ected properties across the Auckland isthmus.
Categorisation process
52. On 14 June, the Auckland Council began engaging with af ected property owners to
progress a risk assessment process that enabled each property to be categorised.
53. Approximately 7,000 property owners were contacted via email or letter during June and
invited to provide further information about their property online. The letter explained that
their property may be Category 2 or 3 and therefore considered high-risk, needing further
assessment. These 7,000 properties were either red, yel ow, or white stickered properties.
Approximately a quarter of property owners contacted responded. It is unclear how many
whenua Māori properties are severely affected, though of icials have identified a set of s 9(2)(a)
Proactively
Māori land blocks within what the Council has determined to be the region’s 13 “high risk
localities”.
54. The Council contracted ten geotechnical suppliers, using over 100 specialist engineers and
consultants to complete the assessments. Individual properties were then given an initial
FOSAL categorisation based on the available data and information. For properties in
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landslide affected areas, the Council contracted a comprehensive geotechnical study of
Muriwai, Piha and Karekare as the basis for risk categorisation decisions.
55. Property owners that responded to the Council had their properties reviewed through
desktop assessments. These assessments involved information collection from property
files, photographs, published geological information and LiDAR data to calculate slope
angles. For properties deemed Category 2 or 3 following this desktop assessment, an onsite
assessment was scheduled with the property owner to determine a final categorisation.
56. By late October, the Council received more than 2100 responses from property owners –
and had completed more than 1300 desktop assessments and 900 site visits.
57. The Council has provided 321 property owners with final categorisation decisions and
confirmed Category 3 property owners have been invited to begin buyout conversations
with the Council.
58. Further confirmation of final categorisation decisions are now expected on a consistent
basis, although the assessment process wil not be complete until March 2024. At this stage,
the estimate of 700 Category 3 properties is stil the most up to date figure.
59. Approximately 20-40 Category 3 properties are Kāinga Ora owned properties. The Council
has confirmed that these houses (and any Crown owned land) wil not be included in the
buyout scheme. Under the local y led approach, the Council has determined the buyout
parameters that it considers appropriate and consistent with the principles and intent of the
policy process. It has made these decisions without Crown direction of any kind. The
9(2)(g)(i)
.
Buyout process
60. Consultation with ratepayers on whether they supported the cost-share deal with the Crown
started on 14 September, concluding with the Auckland Council Governing Body agreeing
to accept the Crown’s offer on October 6.
61. The Council publicly released its buyout methodology on 2 November. The first sale-and-
purchase agreements wil likely be made to landslide affected properties in Muriwai and
several flood-af ected properties in West Auckland.
62. The key elements of the Council’s buyout policy are:
• It applies to residential property, with a dwelling, that is identified as Category 3.
• Only the residential portion of a mixed-use property wil be eligible (the Council wil
negotiate this).
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• The buyout price wil be based on the market value of the property as at 26 January
2023, to be determined either by a registered valuer, or via a desktop valuation.
• The Council wil deduct a “homeowner contribution” from the buyout price:
− 5 percent for insured property
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− 20 percent for any uninsured property (although the Council can, at its
discretion, reduce this contribution).
• The Council wil provide a contribution to legal and advisory costs of up to $5,000. It
wil establish a dispute resolution process for both categorisation and valuation
decisions.
• Once an of er is made, property owners wil have one month to elect whether to accept
it (although this would be extended if the dispute resolution process is activated).
63. On November 2, the Council announced that a “feasible and af ordable” test wil apply to
Category 2P mitigations – if the cost of mitigation is up to 25 percent of the property’s value,
it wil be eligible for 2P funding. Further details are stil to be provided, but the implication of
this test is that if the cost is greater than 25 percent, a buyout would need to be considered.
Auckland Council is seeking to amend the terms of their funding agreement, to enable
funding for Category 3 buyouts to be used for Category 2P mitigations.
64. Summaries of the nature and status of FOSAL implementation in each of the three most
affected regions are provided in appendix 1.
Other NIWE-affected regions
65. With af ected homeowners overwhelmingly concentrated in Hawke’s Bay, Tairāwhiti and
Auckland, the focus has been on these areas. However, there is a relatively smaller number
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of property owners in other NIWE-af ected regions3 who experienced similar levels of
damage.
66. Some of the other NIWE-affected councils are considering FOSAL categorisation and policy
responses. Progress on property-by-property risk assessment is more advanced in some
regions than others, but we anticipate that all councils wil finalise any categorisation
decisions by no later than the end of February 2024.
67. The CRU engages regularly with other councils to discuss their approaches and intentions.
Many councils have expressed some hesitancy about how and whether FOSAL should
apply in their areas. Concerns raised with the CRU include:
• Expectation about local y led responses that a buyout process could raise in their
communities.
• Risks of not identifying, or miscategorising properties.
• Complications engaging with and/or of ering buyouts for unconsented and uninsured
properties.
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• Practical considerations about reducing landslide risks to individual or small groups of
properties, where the risks are from neighbouring private, or Crown owned land.
3 Other affected councils include those in Northland, Waikato, Bay of Plenty, Manawatū-Whanganui, and Wellington (Wairarapa)
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• Equity concerns about properties af ected by other, non-NIWE weather events, or at
risk from future natural hazards (including coastal erosion) but that were not severely
affected by NIWE.
• Financial implications for councils that have existing financial pressures, debt
constraints and low rating bases.
68. We expect that at least two, and possibly up to four councils may pursue Category 3 buyout
offers. A greater number wil seek financial support for Category 2 risk mitigation projects:
• The Masterton District Council is considering of ering buyouts to between s 9(2)(a)
property owners affected by Cyclone Gabrielle flooding in Tinui. The Council estimates
that this would cost approximately $5 mil ion (with the Crown’s share $2.5 mil ion),
although this number is stil subject to change if other mitigation solutions are feasible
(for example, lifting and moving houses within an af ected piece of land). The Council
is undertaking a two-week public consultation period, which began on 20 November,
on whether it should adopt a buyout scheme.
• The Tauranga City Council is assessing up to s 9(2)(a)
above and below a
landslide that damaged homes during the Auckland Anniversary Floods. The Council
expects that two to three properties may require buyouts, where there is no viable
engineering solution to reduce the ongoing landslide risk (this includes one property
that was severely damaged and has since been demolished). It is not expecting to
have engineering assessment work finalised until late this year or early 2024.
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• The Waikato District Council is considering options for up to 5 properties in Port
Waikato at risk from future landslides. The Council is assessing whether there are
viable property level solutions to minimise risk and avoid the need for buyouts.
• The Thames-Coromandel District Council has indicated that it is not expecting to make
any buyout offers at this stage, although it is considering alternative risk mitigation
options for less than 10 properties it considers may be facing an intolerable risk from
landslides. Some of these properties face risks that involve neighbouring Department
of Conservation (DoC) land, although the origin and nature of landslide risks is not
always clear without commissioning geotechnical assessments. The CRU is involved
in ongoing conversations with DoC and the Council about conducting these
assessments, to inform which would inform potential remediation solutions.
• At this stage, none of the three district councils in Northland have indicated that they
are intending to progress with categorisation and buyouts, although they have not
ruled it out completely. The CRU has been in regular discussions with the councils,
and we wil continue to work with them. We wil advise you if we have any further
updates.
Proactively
69. Councils were informed by the previous Minister for Cyclone Recovery on 25 September
that – should they identify any Category 3 buyouts – the Crown would share the cost on the
same basis as agreed with other regions, i.e., 50 percent of the net cost less insurance and
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EQC payments. It is not envisaged that the total cost would be more than $10 mil ion across
all other af ected regions.
70. Should any of these other councils choose to categorise properties and of er any Category
3 buyouts to property owners, councils wil write to you to seek a funding contribution from
the Crown. This contribution would be funded from the National Resilience Plan (NRP), the
same source as previously agreed cost-sharing funding for the three most affected regions.
There is currently no specified funding amount set aside for this purpose.
71. Subject to your agreement, the CRU would then work with the relevant council(s) to confirm
the amount and the relevant terms of a Crown of er. This would be formalised through the
development of a binding Funding Agreement between the council(s) and the Crown.
72. Central Government has also advised councils of the funding pathways available to them
for Category 2 risk mitigation projects – either the Local Government Flood Resilience Co-
investment Fund, or the next phase of NRP funding. None of the potential responses listed
above have been formally identified for funding from either pathway.
Whenua Māori and marae pathway – policy and implementation
73. The whenua Māori and marae pathway is a flexible approach that involves the Crown
engaging directly with Category 3 Māori property interests and their local communities, to
determine appropriate case-by-case solutions, including fair and reasonable funding
support from the Crown.
74. This pathway is an unprecedented public policy approach, and further policy and
operational development work needs to be undertaken, in consultation with relevant
agencies. We expect to provide Ministers with further advice on the detailed design to give
effect to policy decisions, and to seek agreement to any further policy decisions that may
be needed, in early 2024.
Engagement with affected land interests is ongoing
75. Whenua Māori engagement across the three most significantly impacted regions (Auckland,
Hawke’s Bay & Tairāwhiti) is ongoing and is progressing at dif erent stages. It is running in
parallel to the council-led engagement with property owners through the general FOSAL
pathway, though the development of support packages wil require more policy and scoping
to be completed.
76. Within the whenua Māori pathway, the current focus is on building relationships with owners,
trustees, and residents to better understand the level of impact to their whenua, including
residential dwellings and marae. This is necessary to work towards enabling whānau to
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relocate to safe places, taking into account the Crown’s Treaty and legal obligations.
77. As councils complete assessments and categorise properties within their districts, the CRU
is identifying and engaging with impacted landowners’ representatives, trustees (where they
exist) and residents. This engagement has informed the policy work and advice to Ministers
to date; and is supporting Treasury’s forecasting of funding and af ordability.
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78. Indicative numbers of properties and marae are shown in table 3.
Table 3: Estimated number of properties in scope of the whenua Māori and marae pathway
Region
Whenua Māori land blocks
Marae located on Category 3
categorised as Category 3
land
s 9(2)(a)
Hawke’s Bay
Tairāwhiti
Auckland
Total
79. Currently the Hawke’s Bay region is the most progressed, with approximately s 9(2)(a)
Māori land blocks identified as Category 3, including s 9(2)(a)
.
80. In the severely affected s 9(2)(a) community, in Hawke’s Bay, local iwi have sought a
collective solution that incorporates the relocation of their Category 3 marae and up to s 9(2)(a)
affected whanau households residing on Category 3 whenua. A multi-agency ‘Taskforce’,
co-led by the CRU and Te Arawhiti, is working with local iwi on the proposal and wil report
to Ministers in December on its viability. There may be other Category 3 locations where a
collective solution, and Taskforce approach, has merit, although there are specific
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circumstances at s 9(2)(a) that lend itself to this.
81. In Tairāwhiti, the GDC is nearing completion of its categorisations, following a major
disruption to its process due to further flooding in June. The GDC has identified s 9(2)(a)
, including s 9(2)(a)
, which it has asked the CRU to assess for
eligibility for the whenua Māori pathway. As at mid-November the GDC has advised it may
add a further s 9(2)(a)
to Category 3.
82. The Auckland Council is undertaking a series of geotechnical and other specialist
assessment as a precursor to its property categorisations and has not finalised its whenua
Māori category 3 properties. While this occurs, the CRU is working with Te Puni Kōkiri to
develop a (worst case) estimate of the number and location of severely affected whenua
Māori properties across Auckland. In all, there are s 9(2)(a)
that are potentially
within scope of the whenua Māori pathway, including s 9(2)(a)
that may be Category 3.
Scope and funding parameters have been set for the whenua Māori pathway
83. Policy advice on the pathway was coordinated by the CRU, and led by the Treasury, working
with Te Puni Kōkiri and Te Arawhiti. 9(2)(j)
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. 9(2)(f)(iv), 9(2)(g)(i)
9(2)(g)(i), 9(2)(f)(iv)
.
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84. Further decisions were made by joint Ministers with delegated authority from EWR, to set
maximum and minimum parameters for Crown contributions. Ministers also agreed that the
Chief Executive, Cyclone Recovery, would be responsible for the overall implementation of
the whenua Māori pathway and administration of the fund, supported by Te Puni Kōkiri and
Te Arawhiti.
85. The fund wil be used to provide flexible grants to those in scope of the pathway, who
voluntarily opt in. Funding is available for properties that are Category 3, are in residential
use and/or have assets of cultural significance, and are on Māori freehold, customary or
reservation land. Some general title land is also eligible (and excluded from the council-led
buyout pathway) if the property:
• is owned by members of the hapū associated with the whenua and is geographically
connected to it; or
• was previously Māori freehold land but was compulsorily converted to general land
due to government legislation; or
• is Treaty settlement land held by a post-settlement governance entity for residential
use.
86. In relation to these properties, the fund can be accessed by whenua Māori owners,
representative bodies, or residents of a property in scope (regardless of whether they have
ownership interests in the whenua or dwel ing). However, given the potential complexities
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about ownership and occupation, a Crown funding of er wil be subject to formal ratification
processes and compliance with Māori land statutory requirements.
87. Ministers have agreed to parameters that wil inform the maximum and minimum for Crown
contributions to dif erent components of support packages to be of ered. 9(2)(j)
88. 9(2)(j)
89. 9(2)(j)
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90. The Chief Executive, Cyclone Recovery has delegated authority to agree funding packages
within these parameters up to a value of s 9(2)(j) . Packages over s 9(2)(j)
, must be approved by the Minister of
Finance, Minister for Māori Crown Relations, Minister for Māori Development, and yourself.
91. Some policy decisions on the whenua Māori and marae pathway are stil to be made. Most
of these are at an operational policy level (e.g., any specific approached needed to land
valuation, or an appropriate contribution to legal or transactional costs) which the CRU wil
determine, in consultation with other agencies, under the authority delegated to the Chief
Executive, Cyclone Recovery.
92. 9(2)(g)(i)
.
93. Progress updates on the pathway wil be provided as engagement progresses, including if
the parameters need to be adjusted or if further funding may be required to reach solutions
for all Category 3 whenua blocks. A progress update is currently scheduled to be provided
to Cabinet in November, but this timeframe may be amended to December, depending on
the timing of Cabinet and Cabinet committees.
Administration of Crown funding
94. The Chief Executive, Cyclone Recovery is responsible for overseeing the administration of
the Crown’s financial support to councils for Category 2 interventions, Category 3 buyouts,
and the local transport packages agreed with councils through cost-sharing negotiations.
However, the CRU does not have the capacity or necessary expertise to undertake all
aspects of implementation.
95. To support the delivery of agreed funding, Crown Infrastructure Partners Limited (CIP), has
been engaged by the CRU, given its operational and commercial expertise and proven track
record of helping deliver complex infrastructure projects.
96. CIP is responsible for administering the provision of Category 3 funding to councils, subject
to the terms of the Umbrella Funding Agreements signed between the Crown and councils.
CIP wil receive payment requests from councils for the Crown’s share of buyout costs and
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confirm that any requests are in accordance with requirements, before releasing funding.
97. For Category 2 and transport projects, CIP wil work directly with councils to review council
delivery plans, to provide assurance that plans contain an appropriate level of information
to meet agreed FOSAL and NRP criteria for funding.
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98. Councils have been advised of CIP’s role. A series of introductory meetings, with the CRU,
CIP, and councils, is underway, with meetings taking place between finance teams to
discuss drawdowns and reporting, and site visits with engineers. Work is ongoing with
councils to finalise the documentation required to finalise Funding Agreements, and to
understand councils’ prioritisation, timing, and sequencing for the delivery of projects.
99. Based on CIP’s recommendation, the Chief Executive, Cyclone Recovery, wil be
responsible for seeking approval from you for projects to proceed. Subject to approvals, CIP
will execute project level funding agreements with councils, oversee and monitor councils’
delivery, and report to on progress. The CRU wil report to Ministers on progress of delivery,
emerging and actual issues, and potential solutions.
100. CIP wil also have a similar role in the administration of funding agreed for Nelson City
Council and for projects funded through the Local Government Flood Resilience Co-
investment Fund.
101. If the need eventuates CIP wil support the delivery of FOSAL funding for any councils in
other NIWE-af ected regions and wil also support the distribution of whenua Māori and
marae funding. If additional support is required from CIP for these purposes, we wil provide
you with advice and negotiate an extension of CIP’s mandate for these functions.
102. Monitoring and reporting on council delivery and the expenditure of Crown funding wil be a
key part of CIP’s role. The amount of funding, over $1.6 bil ion is substantial and wil be
subject to scrutiny by Ministers and by the Auditor-General. To ensure that there is suf icient
oversight, CIP wil provide regular monthly reporting to the CRU which wil include:
Released
• Updates on councils’ progress on buyouts and project delivery against agreed
milestones.
• A summary of funding distributed compared to forecast expenditure.
• Any material issues that CIP has identified that may impact on a council’s delivery of
an agreed project.
103. The Chief Executive, Cyclone Recovery and CIP are in the process of finalising a
contractual agreement to deliver these services. 9(2)(f)(iv), 9(2)(g)(i)
Emerging issues
Proactively
104. As FOSAL implementation continues, we expect there wil be a range of issues that emerge
from councils’ buyout processes and delivery of risk mitigation projects. Other, unexpected
issues wil no doubt arise as councils progress through their implementation. Some of the
key areas of concern that we have identified to date are outlined below.
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Councils seeking to access funding rapidly to get risk mitigation projects underway
105. Councils that have Funding Agreements in place want to get risk mitigation and transport
projects underway and receive Crown funding as soon as possible. Some councils have
expressed concerns that central Government processes and requirements wil be onerous
and time consuming.
106. The CRU is working closely with CIP and councils as delivery plans are agreed for individual
projects. We are seeking to balance the need to deliver funding quickly and to recognise
that FOSAL responses are local y led, with fiscal responsibility requirements for Crown
funding.
107. Moving rapidly is dependent on councils providing satisfactory final documentation to
enable the Funding Agreements to come into force and funding to be released. We
anticipate that this wil be provided by the end of November and wil inform you if there is
any unexpected delay in this process.
Cost-sharing agreements needing to be revisited to accommodate changing property
categorisation numbers
108. As councils finalise their property categorisation process and complete the detailed planning
required for implementation, they are seeking to amend what has been agreed through
cost-sharing negotiations. As the number of properties in each category change compared
to what was expected when the agreements were first made, this wil have an impact on the
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relative amounts of funding agreed for buyouts and dif erent types of projects.
109. In particular, and as already noted (in paragraphs 35 and 40) regarding the Hawke’s Bay, a
council may determine that a Category 2 intervention is no longer viable, or further
assessment of a Category 2A property determines that there is no viable mitigation solution.
This means that the properties could move into Category 3 and become eligible for a buyout.
In this scenario, the Funding Agreements with councils include provisions that require the
Crown and councils to negotiate in good faith whether to amend agreed funding amounts.
110. s 9(2)(f)(iv)
111. s 9(2)(f)(iv)
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Perceived inequities in the scope, terms, and timing of property buyouts in different regions
112. Each of the three regions that are preparing to make buyout of ers to residents are taking
dif erent approaches to the scope of their buyout policies and applying dif erent terms and
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conditions. This includes the treatment of dif erent property types, dif erent valuation
approaches, contribution amounts for legal and other costs, and dispute mechanisms. In
particular, Hawke’s Bay and Tairāwhiti are of ering 100percent buyouts (for both insured
and uninsured property), while Auckland is of ering a maximum contribution of 95percent
for insured properties and 80percent for uninsured properties.
113. These dif erences are likely to create a perception of inequity in the approach taken in
dif erent regions. However, this is a result of the local y led approach. Central Government
has worked with councils to enable information sharing between them and to encourage
consistency where possible but is not able to prescribe the settings of individual councils’
buyout policies. The CRU has ensured that councils are making their decisions with the
knowledge of what other councils are proposing to do.
114. Some councils in other affected areas are stil considering their approach, with some not
expecting technical assessments to be completed until early 2024. This would mean that
the timeframe for any property buyouts is likely to be later than those in other regions.
115. The Crown has also agreed to provide the Nelson City Council with funding support for
property buyouts from a severe weather event in August 2022 [EWR-23-MIN-0076 refers].
This is broadly like the FOSAL approach.
116. The Council has indicated that engaging in buyouts would be subject to a public consultation
process on its Long-Term Plan. This is not planned until March-April 2024. Af ected
residents have expressed concern about the timeframe, given the time that has now
elapsed since the Nelson weather event and the fact that residents in other regions may
have resolution sooner, despite the NIWE events occurring later.
Property buyouts leading to disputes and legal challenges
117. Given the number of likely buyouts and the significance of of ers for individual property
owners, it is likely that the buyout process wil lead to disputes and legal chal enges (e.g.,
about categorisation decisions, or valuation outcomes). This is likely to af ect councils in the
first instance, as the responsible decision makers, but the overarching FOSAL approach
may also be called into question.
118. The CRU has had initial conversations with other government agencies and local authorities
to identify potential options for review or appeals. While central Government has provided
the FOSAL categorisation framework and provided funding to enable councils to implement
the approach, FOSAL buyout policy is local y led. Any dispute resolution/review/appeal
function would need to maintain the appropriate bounds of local y led and centrally
supported.
119. This review/appeal process dif ers from others (such as buyouts resulting from the
Christchurch and Kaikoura earthquakes) in that the Crown is at arms’ length and not buying
Proactively Released
the properties, making decisions about which properties wil be of ered buyouts, or what the
terms of those buyouts wil be. There is no statutory basis for a review/appeal model apart
from existing Ombudsman and judicial review rights. Therefore, any solution wil need to be
agreed to by the councils and property owners as binding. There is currently no source of
funding for a bespoke review process.
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120. The spectrum of options for central Government runs from providing guidance and advice
to councils on how they might establish their own review/appeal system, through to the
creation of a bespoke Ombudsman, dispute resolution system, or even a tribunal. Behind
all those options sits the use of the (existing) Ombudsman and the High Court judicial review
process, which are always available to people.
Long timeframes to complete risk mitigation projects
121. The scope of the work required to complete all FOSAL related infrastructure projects, as
wel as efforts to repair, rebuild, and construct new homes is extensive. The recovery work
wil likely take years.
122. Limitations such as the availability of construction materials, workforce capability and
capacity, equipment availability, environmental considerations such as ground saturation
and seasonal conditions mean that not all infrastructure projects can simultaneously get
underway. Agencies are working to improve understanding of the workforce requirements
of infrastructure rebuild projects to see where they can assist. At this time, this work requires
more information from councils on their proposed plans and sequencing of their significant
projects.
123. The implications for af ected residents may be significant. Properties identified as Category
2 face an ongoing risk to their safety while mitigation works are progressed. This is likely to
cause anxiety among residents. It may also lead to concerns about the ongoing availability
and/or af ordability of insurance for af ected properties. Private insurance companies have
Released
been seeking assurance that mitigation works wil be completed and deliver the intended
benefits, so that they can continue to of er af ordable insurance.
124. In addition, should any of the Category 2 risk mitigation projects not be able to be completed,
then the properties in question would likely need to be recategorised as Category 3 and
receive a buyout of er instead.
125. As council delivery plans are developed, the CRU wil work with councils and central
Government agencies to consider options to provide additional support, including whether
legislative levers are needed to speed up delivery.
Councils seeking regulatory options to speed up consenting processes
126. Some councils have asked the CRU for assistance with navigating a variety of consent-
related matters where shortening processes or timelines would enable greater opportunities
for residents to be relocated quickly, or infrastructure projects to get underway. The CRU
has had a number of meetings with councils about the need for regulatory relief, although
to date councils have not been able to articulate clear examples of situations needing relief
and the nature of relief required. We wil continue to work with councils to clarify these
needs.
Proactively
127. The CRU is working with MfE and other agencies to build a suite of potential response
options – although this work remains dependant on greater clarity from councils about what
is required. Options could include:
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• Enabling councils to allow more intensity of residential building on rural land with
restrictive district plan rules in place.
• Regulatory relief or Orders in Council to progress flood protection works and housing
relocation, as raised by the Hawke’s Bay Regional Recovery Plan.
128. You may have to play a role in linking the work of other Ministers’ portfolios, such as
Environment or Local Government, to expedite the implementation of the FOSAL
programme. Some of these decisions may have to come in the short term and involve linking
operational level workstreams; some solutions may require either secondary or primary
legislation changes, so wil be a more involved process.
129. The use of Orders in Council through the Severe Weather Emergency Response Legislation
Act (SWERLA) is frequently raised by councils as a potential solution to some of these
problems. However, as we move further away from the weather events, the use of SWERLA
becomes more limited. This is becoming particularly apparent as councils are requesting
regulatory relief for future-focussed resilience ef orts that would be likely to be out of scope
of the Act.
130. Additionally, councils are raising the need for more permissive approaches to consenting,
including creating new bespoke approvals processes. The ability to achieve this under
SWERLA is limited, as the Act only allows amendments and modifications to processes in
current legislation, not the creation of new processes or their application to new subject
matters.
131. The CRU has sought Crown Law Of ice advice on the continued application of SWERLA,
given the time that has passed since the severe weather events. We wil update you once
this advice is finalised.
Ongoing uncertainty about solutions and funding needs in other NIWE-affected regions
132. Outside of the three most af ected regions, where NIWE cost-sharing funding packages
have been agreed, councils are stil determining their responses, including whether they
wish to engage in FOSAL categorisation and what their funding needs may be as a result.
133. Councils are at dif erent stages of their recovery process, but many are stil at the point of
engaging technical experts to assess impacts and possible solutions, and it may stil be
some months for the full recovery costs for severely affected properties in these areas
becomes clear. The scale of any Crown funding support that might be requested is stil
unknown.
134. There are also some potentially complicated ownership or liability issues across all regions
that are yet to be fully resolved, such as interventions that may be needed on Crown owned
land (e.g., DoC land in Thames-Coromandel) or the future of Kāinga Ora properties on
Proactively Released
Category 3 land in Auckland.
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Appendix 1: Nature and Status of FOSAL Regional Summaries
Proactively Released
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Future of severely affected locations: Auckland
Auckland’s recovery effort is of a different scale to the other regions; it received significant levels of damage in areas distributed around the wider region, including multiple
residential areas. This means that its cost sharing agreement is the largest.
All umbrella cost sharing agreements signed in October require local authorities to provide further information, including the final buyout methodology and cost sharing project detail,
before funding can be disbursed.
Cost-sharing approach
The Auckland Council agreed a cost sharing arrangement with central Government in August, subject to community consultation that finished on 24 September. The total agreed is $877 million dollars,
which includes $387 million for 50 percent of Auckland’s Category 3 buyouts, $380 million for risk mitigation projects, $110 million for local transport.
According to the Auckland Council, the Crown contribution will be a part of three elements of its strategy: Category 3 buyouts (total $774 million), ‘Making Space for Water’ - a broader flood and
stormwater resilience initiative (total $820 million), Transport Network Recovery (total $390 million).
9(2)(j), 9(2)(g)(i)
FOSAL status
In October, the Auckland Council agreed some of the key principles of its Category 3 buyout policy.
• It applies to residential property, with a dwelling, that is identified as Category 3
• Only the residential portion of a mixed-use property will be eligible (the council will negotiate this). Vacant sections are not eligible for a buyout
• The buyout price will be based on the market value of the property as at 26 January 2023, to be determined either by a registered valuer, or via a desktop valuation
• The Council will offer 95% of the value of an insured property, less any insurance buyout (including EQC), meaning that the property owner will make a 5% contribution towards the cost of the buyout
• The Council will provide a contribution to legal and advisory costs of up to $5,000
• For uninsured properties, the Council will offer at least 80%, up to 95% of the value of the property, meaning that the property owner will makeup to a 20% contribution towards the cost of the buyout
In November, the Auckland Council stated its approach to Category 2P properties. This has two components; whether a solution is possible, and whether it is affordable and can be delivered in a
reasonable timeframe
• Affordability is set at 25 percent of the properties CV, while the mitigations need to be completed within two years
The Auckland Council has also announced that its dispute resolution process applies to both categorisation and valuation and will have an internal and external review process. The Council have stated it
will provide further information on this process to households when their categorisation is confirmed.
Whenua Māori and Marae programme
Region at a glance
The Auckland Council’s categorisation approach, involves undertaking a series of
Category 3
Whenua Māori land blocks
Marae
geotechnical and other specialist assessment as a precursor to its property
Approximately 700
s 9(2)(a)
categorisations.
9(2)(a)
Categorisation process
In the absence of the Council’s categorisations, the CRU has worked with Te Puni Kōkiri
to develop a (worst case) estimate of the number and location of severely affected
≈7000
Property owners contacted (red, yellow or white
In the absence of final numbers of
whenua Māori properties across Auckland.
stickered)
houses in each category, the figures
9(2)(a)
from the Auckland Council’s
≈2100
Responses from homeowners
categorisation process are provided
1300
Desktop assessments
as a rough proxy for the quantity of
properties considered
Proactively Released
900
Site visits
Future of severely affected locations: Hawke’s Bay
Hawke’s Bay has progressed the furthest towards implementing Category 3 buyouts of any region, and we are expecting buyouts to start shortly. It is also the area with the largest amount
of whenua Māori land affected.
All umbrella cost sharing agreement signed in October requires local authorities to provide further information, including the final buyout methodology and cost sharing project detail,
before funding can be disbursed.
Cost-sharing approach
Hawke’s Bay’s five councils collectively signed a cost sharing agreement with the Government in July, which was agreed to following public engagement on 15 September.
The total agreement is for $556 million, that includes $92.5m for 50 percent buyout of Category 3 buyouts, $203.5m for Flood Protection, $260m for reinstating bridges and connectivity to isolated
communities.
The Hawke’s Bay has five affected local authorities—Hawke’s Bay Regional Council, Hastings District Council, Napier City Council, Wairoa District Council and the Central Hawke’s Bay District Council. The
Hawke’s Bay Regional Recovery Agency was established to coordinate a recovery plan between these authorities, iwi and the local community.
FOSAL status
On 9 October, Hastings and Napier councils sent letters to Category 3 general title households outlining detail about the buyout process. A buyout office has been operating since 24 October, to support
property owners who want to consider an offer. The key elements of the buyout policy are:
• The policy applies to residential or mixed-use properties that had a dwelling prior to the weather events
- Category 3 properties without a residential dwelling can receive a buyout at the council’s discretion, if they can meet strict criteria (i.e. had consent and plans for a house pre-Cyclone)
• Two offers are available:
- A purchase offer where the council takes ownership of the land; or
- A relocation offer for mixed use property (>2 hectares) where the council purchases the dwelling but owners retain the land (and a covenant is established to prevent residential activity)
• Offers are based on 100 percent valuation of the property as at 13 February 2023
• There is no distinction in the offer applied to insured or uninsured property
• Councils will provide up to $5,000 for an independent valuation, and $5,000 for legal costs
• Property owners may request a review of their case from the council’s Chief Executive, but there is no further dispute process as the offer is voluntary
There are 1040 properties currently in all Category 2 areas, most in Category 2C. The large number of properties in Category 2A could change based on further work, i.e. be placed into Category 2C if a
community-level project is feasible, or into Category 3 if one is not.
Whenua Māori and Marae programme
Region at a glance
Hawke's Bay includes 9(2)(a)
of whenua Māori provisionally categorised as Category 3. Severely affected whenua Māori land blocks
Whenua Māori land blocks
Marae
are largely concentrated in the 9(2)(a)
. These two localities account for almost all known Category 3 whenua Māori across
the recovery regions. s 9(2)(a)
in Hawke’s Bay are in Category 3; 9(2)(a)
9(2)(a)
h 9(2)(a)
Cat 3
9(2)(a) —in Category 2A.
9(2)(a)
Cat 2A
The CRU has attended community meetings in Hawke’s Bay since June and completed profiles of land blocks for most of the 50 Category
9(2)(a) affected properties with approximately 9(2)(a)
. Engagement has focused largely
Hastings
Napier
Central
Wairoa
Total
on 9(2)(a)
Māori land interests and related stakeholders, including the
HB
9(2)(a)
9(2)(a)
Cat 3
265
22
287
9(2)(a)
. The CRU is also talking to trustees, owners and residents of provisional Category 3 whenua Māori, with support from local
councils,
Cat 2A
88
127
667
882
9(2)(a)
Proactively Released
Ongoing engagement challenges include large and dispersed groups of owners, unknown governance/trusteeship and/or contact details
Cat 2P
1
8
9
to work with; and some whānau reluctance to relocate and, therefore, engage in the FOSAL process. More broadly, concerns have been
Cat 2C
149
149
raised by the various PSGEs that the FOSAL and cyclone recovery work does not undermine their Treaty settlements and, where
practicable, complements their post settlement duties and objectives.
Total
503
22
135
667
1,327
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Future of severely affected locations: Tairāwhiti
The cost sharing agreement for Tairāwhiti includes a no-interest loan that enables the Gisborne District Council (GDC) to pay its share of Category 3 buyouts. The
large number of Category 2 properties will need further investigation to determine the appropriate solution (whether property- or community-level) to mitigate the
risk.
All umbrella cost sharing agreement signed in October requires local authorities to provide further information, including the final buyout methodology and cost
sharing project detail, before funding can be disbursed.
Cost-sharing approach
The GDC signed a cost sharing agreement with the Government in August, which was approved on 1 November following community consultation. The total agreement is for $204 million, which includes
$15m for 50 percent buyout of Category 3 properties, $64m for Flood Protection, $125m to reinstate bridges and crucial roads. In addition, the GDC received a 10-year interest free loan (with the Crown
paying the $17m interest on the loan).
FOSAL status
The GDC is finalising its buyout methodology. We understand that it will cover:
• Residential or mixed use property on Category 3 land that had a dwelling prior to the North Island Weather Events.
• Properties larger than 1 hectare will be treated as mixed-use and only offered a relocation offer rather than outright purchase, properties smaller than 1 hectare may receive a relocation or purchase
offer.
• Offers will be for 100% of the property value, based on an individual market valuation as at 12 February 2023, and is uncapped
• There is no distinction in the offer applied to insured or uninsured property
• Owners are eligible for up to $1,500 for legal costs (other costs such as an independent valuation are not included)
Of the 770 Category 2 houses in Tairāwhiti , 200 houses (approx. half in Te Karaka) will be required to be lifted in order to reduce vulnerability and mitigate significant risks. Council and Iwi have received
$15m in Crown support through the Flood Resilience Co-investment fund to lift these homes.
For the remaining Category 2 properties, solutions and funding for these will need to be identified.
Whenua Māori and Marae programme
Region at a glance
The GDC has identified 9(2)(a)
properties and9(2)(a)
, although a further 9(2)(a)
may also be moved into Category 3.
Category
Note
The CRU has supported all the GDC-led engagements with affected communities, including East Coast and other communities with relatively
3
51
Figures for
high Māori populations, and is seeking direct dialogue with the Category 3 affected residents and owners.
Category 2 are not
The CRU’s broader cyclone recovery engagement with Tairāwhiti iwi and Māori stakeholders has taken place between the GDC and three of
2
770
currently broken
the region’s four main iwi, including the largest, Ngāti Porou. GDC and local iwi leaders have committed to a unified cyclone recovery and
down into sub-
wider collaborative approach.
categories, but
Whenua Māori
most are indicated
9(2)(a)
Of the four iwi, Te Aitanga a Mahaki, whose tribal area takes in Te Karaka and the Waipaoa catchment, has yet to settle its Treaty claims
Residential
to be Category 2A –
with the Crown. This is important context for any discussions about the recovery (and iwi concerns for the protection and future availability
properties
needing further
of Māori land in their rohe).
Marae
categorisation
Proactively Released
Future of severely affected locations: Regional Overview
The Future of Severely Affected Locations programme is applicable to all regions affected by the North Island Weather Events (NIWE), beyond Auckland, Tairāwhiti and Hawke’s Bay.
All of the NIWE regions were informed of the Government’s approach to categorisation and cost sharing (a 50/50 split for Category 3 households) in September.
Given that this is a voluntary, locally-led process, each region chooses to take their own approach to categorisation. The CRU has been engaging with each region about their specific circumstances and to
provide any support and information or advice required.
Currently we are expecting that at least two, and possibly up to four councils may pursue Category 3 buyout offers. It is likely most regions will seek support for Category 2 risk mitigation projects.
Northland
Thames Coromandel
Northland councils are still considering whether to take a
The Thames-Coromandel District Council has indicated that it is not
categorisation approach to residential properties that were
expecting to make buyout offers. Instead, it is investigating
damaged in the NIWE.
alternative options to mitigate the risk from further landslips for
fewer than 10 households.
Waikato
Waikato is considering up to six properties that may fall into
Tauranga/Bay of Plenty
the categorisation framework, but the council is investigating
The Tauranga District Council is assessing up to
potential property-level risk mitigation options that would avoid
s9(2)(a)
both above and below a landslide; it expects two to three properties
the need for buyouts.
may require a buyout. Categorisation/engineering work is due to be
finished in January 2024. The council have been engaging the CRU
on its potential approach.
Tararua
The Government will invest $640,000 to support the design,
modelling and physical upgrades to areas in the Pohangina
Wairarapa
catchment as councils and the community work though longer-
term risk mitigation options. These options could lead to
The Masterton District Council is concluding its categorisation and
councils investigating categorisation.
risk assessment work and has identified between nine and s 9(2)(a)
properties that may be Category 3 or 2P, all in or around Tīnui.
Nelson
Although outside the NIWE area, the approach to addressing
The cost is estimated at around $5 million, subject to change if
locations in Nelson severely affected by a 2022 weather event
alternative solutions, like moving a residence to a different site on
broadly matches the treatment for North Island locations, with
the same property, are feasible.
a 50/50 split for what would be Category 3 houses, and Crown
funding for projects to increase resilience. The total package
The CRU continues to meet with the Masterton District Council and
offered was $12.3 million, which was approved by the Nelson
Greater Wellington Regional councils to discuss next steps.
Council. This is subject to public consultation that will take
place in March/April 2024 simultaneous with the Long-Term
Plan.
Proactively Released
Document Outline