merge paragraphs
[study/eia.git] / assignment3 / background.tex
1 \section{The resource consent process}
2
3 \subsection{Before the application}
4
5 In New Zealand development activities are regulated through regional
6 and district plans. These plans are prepared by the regional and
7 district councils in a long process that provides ample opportunity
8 for consultation with the public and industry representatives
9 alike \parencite{miller2010implementing}. For any activity not
10 explicitly permitted by the plans and policy statements a resource
11 consent must be obtained \parencite{fookes}. Any development activity
12 that is advertised as resulting in significant positive impacts on the
13 region---the type of activity that this analysis focuses on---is very
14 likely to also require resource consents.
15
16 After checking the appropriate district or regional plans to confirm
17 whether a resource consent is required, the applicant is to prepare a
18 thorough assessment of environmental effects (AEE). Although it might
19 be beneficial to consult with possibly affected people and interested
20 members of the general public at this stage, consultation is not a
21 general requirement under the RMA.
22
23 % TODO
24 - EIA in NZ differs from international best practice, because
25 consultation before the application is lodged is not required
26
27 - consultation may be required by another Act; consultation with Maori
28 (if affected) is usually required due to Treaty
29
30 - any results of consultation must be included in the AEE
31
32
33 \subsection{Review and notification}
34
35 After the application is lodged and the AEE submitted, the council
36 will process it. If the AEE is considered lacking, the council may
37 ask the applicant to provide further information; inadequate
38 applications that are unlikely to be improved significantly may also
39 be rejected altogether. After a review of the AEE, the council
40 processing the resource consent application may decide to involve the
41 public by means of notification or determine that notification is not
42 required when the activity is expected to only have minor effects and
43 all affected parties agree on the proposal \parencite{fookes}.
44
45 A publicly notified application will be advertised in the newspaper
46 and be sent to all people thought to be affected by the activity. The
47 council will also call for written statements on the proposal from
48 members of the general public \parencite{ME959}. In some cases, the
49 council may decide to notify only directly affected people (for some
50 definition of `affected'); the purpose of such limited notification is
51 to give affected people---those who have not provided their written
52 approval to the applicant---the opportunity to suggest conditions for
53 the resource consent. Limited notification may result from an
54 applicant's failure to engage in consultation with the affected people
55 before lodging the application, although it may also be required when
56 affected people refuse to provide written approval before the
57 assessment of environmental effects has been carried out and
58 submitted.
59
60 The review of the application and the AEE and the decision whether to
61 notify the application or not (and to what degree) is the first step
62 in the resource consent process that Grinlinton referred to in his
63 statement. A council that---for whatever reasons---fails to reject
64 applications with poor or deliberately misleading assessments
65 effectively off-loads the burden to challenge the application to
66 members of the general public. A misleading AEE will be very
67 difficult for the public to challenge on technical grounds. If,
68 additionally, the application is not considered to have more than
69 minor impacts and is thus not publicly notified, it becomes very
70 difficult for members of the public to affect the outcome of the
71 resource consent decision. According to \textcite{mediation}, only
72 those parties who made a submission on a notified application have
73 legal standing to appeal a council's resource consent decision to the
74 Environment Court.
75
76 % TODO: who has legal standing in this case?
77 % Do people have to resort to the Environment Court then?
78
79 Often the quality and coverage of activities in the council's plan
80 determine whether or not the expected effects of a development
81 activity will be considered minor and thus influence directly whether
82 an application will be publicly notified. This dependency on plan
83 quality and coverage can be seen in the dealings of the Christchurch
84 City Council with a series of resource consent applications between
85 2004 and 2006 relating to the construction of a 53 metre high office
86 block and an adjacent car park building \parencite{ruske}. The first
87 application in 2004 was processed on a non-notified basis, despite the
88 opposition of about 1,300 people who presented a petition to the
89 council in which they demanded a change to the city plan to explicitly
90 restrict the height of buildings in the affected zone. Since the city
91 plan did not include any height restrictions for buildings in the
92 zone, the application could not be rejected on grounds of
93 non-compliance. A second application for a scaled-down proposal was
94 also approved without public notification.
95
96 While it is possible to amend plans and there are established
97 mechanisms for extensive consultation in the plan creation process, it
98 is clearly not feasible to modify plans on a case-by-case basis.
99 According to the 2010/11 survey of local authorities the New Zealand
100 \textcite{rma-survey} carries out every two years, only about four per
101 cent of all resource consents in the two-year period were publicly
102 notified. Unfortunately, there is little data on what proportion of
103 the remaining 96 per cent are small-scale applications submitted by
104 private people and how many are larger projects where the decision
105 whether to notify or not is possibly contentious.
106
107 %TODO: report on the sad state of council plans that have had
108 % provisionary plans for years and the process dragged on for many years.
109
110
111
112 \subsection{Submissions from the public and hearings}
113
114 For those applications that the responsible council has determined
115 will have impacts on the environment that are more than minor and that
116 have been publicly notified, members of the public can make
117 submissions to challenge---or express support for---the application.
118
119 % TODO
120 % Officer's report and decision-making.
121 - in the case of public notification, council prepares a report based
122 on submissions, the AEE and additional evidence provided by the
123 applicant. The report is hence strongly influenced by the applicant's
124 input.
125
126
127 \section{Consultation and participation in EIA and the RMA}
128
129 %While councils usually engange the public during the consultation
130 %phases of the plan formation process, the picture on the resource
131 %consent level is a different one.
132 refer to http://www.mfe.govt.nz/publications/rma/everyday/consent-consultation/
133
134
135 \subsection{AEE review and notification}
136
137 - council reviews AEE and decides whether to notify or not
138
139 %beyond the requirements of the Fourth Schedule,
140 %however, there are few guidelines to assess the quality of an
141 %AEE \parencite{miller2010implementing}.
142
143
144
145 % http://www.thefreelibrary.com/Mediating+sustainability%3a+the+public+interest+mediator+in+the+New...-a0176372138
146 \begin{quote}
147 only those parties who make a submission on a notified consent
148 application have standing to appeal a council's decision to the
149 Environment Court.
150 \end{quote}
151
152 % TODO: review course readings to find problems
153
154 \subsection{The implementation gap}
155
156 \begin{quote}
157 % there was a gap between the environmental management techniques
158 % advocated in district plans and those being applied in resource
159 % consents. The lower the council capacity and plan quality, the greater
160 % the implementation gap. For a number of reasons, most plans are more
161 % ambitious in their scope and intentions than is realised in practice
162 % through techniques used in consents.
163 \end{quote} [confessions, p 13]
164
165 % TODO