[study/eia.git] / assignment3 / background.tex
1 \section{The resource consent process}
3 \subsection{Before the application}
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}.
11 % TODO: a little more on how consultation is used during plan design?
13 For any activity not explicitly permitted by the plans and policy
14 statements a resource consent must be obtained \parencite{fookes}.
15 Any development activity that is advertised as resulting in
16 significant positive impacts on the region---the type of activity that
17 this analysis focuses on---is very likely to also require resource
18 consents.
20 After checking the appropriate district or regional plans to confirm
21 whether a resource consent is required, the applicant is to prepare a
22 thorough assessment of environmental effects (AEE). Although it might
23 be beneficial to consult with possibly affected people and interested
24 members of the general public at this stage, consultation is not a
25 general requirement under the RMA. However, consultation may be the
26 best means to comply with those sections of the RMA that require the
27 recognition of the interest of \emph{tangata whenua}, for example,
28 when a development proposal affects locations or resources that are of
29 special interest to the Maori \parencite{ME960}.
31 % TODO:
32 - any results of consultation must be included in the AEE
35 \subsection{Review and notification}
37 After the application is lodged and the AEE submitted, the council
38 will process it. If the AEE is considered lacking, the council may
39 ask the applicant to provide further information; inadequate
40 applications that are unlikely to be improved significantly may also
41 be rejected altogether. After a review of the AEE, the council
42 processing the resource consent application may decide to involve the
43 public by means of notification or determine that notification is not
44 required when the activity is expected to only have minor effects and
45 all affected parties agree on the proposal \parencite{fookes}.
47 A publicly notified application will be advertised in the newspaper
48 and be sent to all people thought to be affected by the activity. The
49 council will also call for written statements on the proposal from
50 members of the general public \parencite{ME959}. In some cases, the
51 council may decide to notify only directly affected people (for some
52 definition of `affected'); the purpose of such limited notification is
53 to give affected people---those who have not provided their written
54 approval to the applicant---the opportunity to suggest conditions for
55 the resource consent. Limited notification may result from an
56 applicant's failure to engage in consultation with the affected people
57 before lodging the application, although it may also be required when
58 affected people refuse to provide written approval before the
59 assessment of environmental effects has been carried out and
60 submitted.
62 % TODO: easy to buy off directly affected people -- outcome is not sustainable
64 %- side agreements: applicants can buy consent by paying directly
65 % affected people, incurring poor environmental outcomes for the
66 % community or future generations. \parencite{PCE1998}
67 %
68 %
69 % \begin{quote}
70 % The environmental risks associated with side agreements depend on
71 % the council’s knowledge and treatment of any contractual
72 % arrangements by consent applicants. Good practice by the consent
73 % authority can help to minimise these risks. For example, where a
74 % private agreement does not necessarily result in effects on the
75 % environment being mitigated, consent authorities should impose
76 % appropriate conditions to mitigate these effects.
77 % \end{quote} \parencite[][p 9]{PCE1998}
78 %
79 %
80 %- wider example may be the golden link mine where the applicant
81 % promised to do unrelated work for the community to secure approval
85 \subsubsection{The importance of reviews}
87 The review of the application and the AEE and the decision whether to
88 notify the application or not (and to what degree) is the first step
89 in the resource consent process that Grinlinton referred to in his
90 statement. A council that---for whatever reasons---fails to reject
91 applications with poor or deliberately misleading assessments
92 effectively off-loads the burden to challenge the application to
93 members of the general public. The \textcite[p 41]{reading4.3}
94 stresses that
96 \begin{quote}
97 [t]he full evaluation of AEE information provided by applicants is
98 one of the most critical aspects of the entire resource consent
99 process. The applicant is responsible for a full assessment of the
100 proposed activity, but such responsibility is meaningless unless a
101 council provides guidance and, where necessary, forms judgements on
102 the adequacy of this assessment.
103 \end{quote}
105 An investigation into the consent processing performance of selected
106 councils conducted by the Ministry for the Environment revealed that
107 councils rarely reject subpar resource consent applications as
108 permitted by section 88(3) of the RMA; much more often, faulty
109 applications are accepted and gradually improved through requests for
110 additional information, a mechanism provided by section 92 of the
111 RMA \parencite{performance}. In earlier case studies, the councils
112 estimated that further information was requested (either formally
113 under section 92 or informally) from at least half of all application
114 before the application was accepted \parencite{reading4.3}. It is
115 doubtful whether poor quality assessments significantly improve as a
116 result of these repeated requests. It is conceivable, however, that
117 this approach not only delays the processing of resource consents, but
118 also increases the likelihood of poor quality applications slipping
119 through.
121 If the application is not considered to have
122 more than minor impacts and is thus not publicly notified, it becomes
123 very difficult for members of the public to affect the outcome of the
124 resource consent decision. According to \textcite{mediation}, only
125 those parties who make a submission on a notified application have
126 legal standing to appeal a council's resource consent decision to the
127 Environment Court. As revealed by the 2010/11 survey of local
128 authorities the New Zealand \textcite{ME1069} carries out every
129 two years, only about four per cent of all resource consents in the
130 two-year period were publicly notified. Unfortunately, there is little
131 data on what proportion of the remaining 96 per cent are small-scale
132 applications submitted by private people and how many are larger
133 projects where the decision not to notify may not have been justified.
134 According to a report by the Parliamentary Commissioner for the
135 Environment, complaints about councils' decisions not to notify
136 applications are rather common and are often upheld due to the fact
137 that local authorities ``failed to carry out sufficient enquiries
138 before deciding that there were no affected parties or that it would
139 be unreasonable for the applicant to obtain written approval from
140 affected parties'' \parencite{reading4.3}. In fact, according to the
141 \textcite{ME1069}, the number of formal objections against consent
142 decisions follows an upward trend in recent years.
144 % beyond the requirements of the Fourth Schedule there are few
145 % guidelines to assess the quality of an AEE \parencite{miller2010implementing}.
148 \subsubsection{The importance of plan quality and coverage}
150 Often the quality and coverage of activities in the council's plan
151 determine whether or not the expected effects of a development
152 activity will be considered minor and thus influence directly whether
153 an application will be publicly notified. This dependency on plan
154 quality and coverage can be seen in the dealings of the Christchurch
155 City Council with a series of resource consent applications between
156 2004 and 2006 relating to the construction of a 53 metre high office
157 block and an adjacent car park building \parencite{ruske}. The first
158 application in 2004 was processed on a non-notified basis, despite the
159 opposition of about 1,300 people who presented a petition to the
160 council in which they demanded a change to the city plan to explicitly
161 restrict the height of buildings in the affected zone. Since the city
162 plan did not include any height restrictions for buildings in the
163 zone, the application could not be rejected on grounds of
164 non-compliance. A second application for a scaled-down proposal was
165 also approved without public notification.
167 While it is possible to amend plans and established mechanisms for
168 extensive consultation exist in the plan creation process, it is
169 clearly not feasible to modify plans on a case-by-case basis. Under
170 the assumptions of the RMA, plans are the foundations on which
171 resource consent decisions are made to achieve sustainable
172 development; they were not meant to be used as a tool to block
173 individual proposals and hence do not support quick amendment
174 procedures.
177 \subsubsection{The implementation gap}
179 The links between plan quality, plan implementation through AEE review
180 and resource consent decisions, and environmental outcomes were the
181 subject of the \emph{Planning Under a Cooperative Mandate}
182 programme \parencite{confessions}. One of the core findings of the
183 programme that studied six councils over a period of several years was
184 that
186 \begin{quote}
187 there was a gap between the environmental management techniques
188 advocated in district plans and those being applied in resource
189 consents. [...] For a number of reasons, most plans are more ambitious
190 in their scope and intentions than is realised in practice through
191 techniques used in consents. \parencite[p 13][]{confessions}
192 \end{quote}
194 %TODO: report on the sad state of council plans that have had
195 % provisionary plans for years and the process dragged on for many years.
197 The findings further suggest that the width of this implementation gap
198 is closely linked to council capacity. Due to the devolved nature of
199 environmental management intended by the RMA and the wide range of
200 activities requiring assessment, an overwhelmingly large number of
201 resource consent applications is to be processed by local councils,
202 many of which operate under constraints, such as time pressure and the
203 need to save costs. The very benefits that were thought to follow
204 from a devolved mandate---such as specialised assessment methods most
205 appropriate for the district and innovation in the area of evaluation
206 techniques---may actually be suppressed as a consequence of a lack of
207 capacity on the level of local government.
209 Summarising the effect of capacity on consent processing practice,
210 \textcite[p 46][]{confessions} comes to this conclusion:
212 \begin{quote}
213 The findings of this research would suggest that low capacity forces
214 councils to adopt policies that appear to favour economic growth. In
215 many cases growth is needed in order to maintain---at the minimum---
216 current service levels. Effectively, the pressure for development to
217 proceed quickly and unimpeded does not foster a climate that considers
218 and values environmental quality to the extent advocated in many
219 district plans (or envisaged by the RMA).
220 \end{quote}
223 \subsection{Submissions, hearings and the officer's report}
225 For those applications that the responsible council has determined
226 will have impacts on the environment that are more than minor and that
227 have been publicly notified, members of the public can make
228 submissions to challenge---or express support for---the application.
229 It is of utmost importance that an assessment of environmental effects
230 be detailed enough and understandable for interested members of the
231 public to enable them to make submissions on the proposal without
232 first having to engage in investigations
233 themselves \parencite{reading4.3}. A misleading or unintelligible AEE
234 will be very difficult for the public to challenge on technical
235 grounds.
237 % TODO
239 At the example of three case studies, \textcite{reading5.6} argues
240 that access to information and the ability to present a position
241 professionally is a precondition to successful participation in the
242 consultation stages of the resource consent process.
245 % Officer's report and decision-making.
246 - in the case of public notification, council prepares a report based
247 on submissions, the AEE and additional evidence provided by the
248 applicant. The report is hence strongly influenced by the applicant's
249 input.