[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}. 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.
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.
23 % TODO
24 - EIA in NZ differs from international best practice, because
25 consultation before the application is lodged is not required
27 - consultation may be required by another Act; consultation with Maori
28 (if affected) is usually required due to Treaty
30 - any results of consultation must be included in the AEE
33 \subsection{Review and notification}
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.
41 % TODO: what percentage of applications is rejected at this stage?
42 % majority of rejected applications are made by private people.
44 % requesting additional information
46 After a review of the AEE, the council processing the resource consent
47 application may decide to involve the public by means of notification
48 or determine that notification is not required when the activity is
49 expected to only have minor effects and all affected parties agree on
50 the proposal \parencite{fookes}.
52 A publicly notified application will be advertised in the newspaper
53 and be sent to all people thought to be affected by the activity. The
54 council will also call for written statements on the proposal from
55 members of the general public \parencite{ME959}. In some cases, the
56 council may decide to notify only directly affected people (for some
57 definition of `affected'); the purpose of such limited notification is
58 to give affected people---those who have not provided their written
59 approval to the applicant---the opportunity to suggest conditions for
60 the resource consent. Limited notification may result from an
61 applicant's failure to engage in consultation with the affected people
62 before lodging the application, although it may also be required when
63 affected people refuse to provide written approval before the
64 assessment of environmental effects has been carried out and
65 submitted.
67 The review of the application and the AEE and the decision whether to
68 notify the application or not (and to what degree) is the first step
69 in the resource consent process that Grinlinton referred to in his
70 statement. A council that---for whatever reasons---fails to reject
71 applications with poor or deliberately misleading assessments
72 effectively off-loads the burden to challenge the application to
73 members of the general public. A misleading AEE will be very
74 difficult for the public to challenge on technical grounds. If,
75 additionally, the application is not considered to have more than
76 minor impacts and is thus not publicly notified, it becomes very
77 difficult for members of the public to affect the outcome of the
78 resource consent decision. According to \textcite{mediation}, only
79 those parties who made a submission on a notified application have
80 legal standing to appeal a council's resource consent decision to the
81 Environment Court.
83 % TODO: who has legal standing in this case?
84 % Do people have to resort to the Environment Court then?
86 Often the quality and coverage of activities in the council's plan
87 determine whether or not the expected effects of a development
88 activity will be considered minor and thus influence directly whether
89 an application will be publicly notified. This dependency on plan
90 quality and coverage can be seen in the dealings of the Christchurch
91 City Council with a series of resource consent applications between
92 2004 and 2006 relating to the construction of a 53 metre high office
93 block and an adjacent car park building \parencite{ruske}. The first
94 application in 2004 was processed on a non-notified basis, despite the
95 opposition of about 1,300 people who presented a petition to the
96 council in which they demanded a change to the city plan to explicitly
97 restrict the height of buildings in the affected zone. Since the city
98 plan did not include any height restrictions for buildings in the
99 zone, the application could not be rejected on grounds of
100 non-compliance. A second application for a scaled-down proposal was
101 also approved without public notification.
103 While it is possible to amend plans and there are established
104 mechanisms for extensive consultation in the plan creation process, it
105 is clearly not feasible to modify plans on a case-by-case basis.
106 According to the 2010/11 survey of local authorities the New Zealand
107 \textcite{rma-survey} carries out every two years, only about four per
108 cent of all resource consents in the two-year period were publicly
109 notified. Unfortunately, there is little data on what proportion of
110 the remaining 96 per cent are small-scale applications submitted by
111 private people and how many are larger projects where the decision
112 whether to notify or not is possibly contentious.
114 %TODO: report on the sad state of council plans that have had
115 % provisionary plans for years and the process dragged on for many years.
119 \subsection{Submissions from the public and hearings}
121 For those applications that the responsible council has determined
122 will have impacts on the environment that are more than minor and that
123 have been publicly notified, members of the public can make
124 submissions to challenge---or express support for---the application.
126 % TODO
127 % Officer's report and decision-making.
128 - in the case of public notification, council prepares a report based
129 on submissions, the AEE and additional evidence provided by the
130 applicant. The report is hence strongly influenced by the applicant's
131 input.
134 \section{Consultation and participation in EIA and the RMA}
136 %While councils usually engange the public during the consultation
137 %phases of the plan formation process, the picture on the resource
138 %consent level is a different one.
139 refer to http://www.mfe.govt.nz/publications/rma/everyday/consent-consultation/
142 \subsection{AEE review and notification}
144 - council reviews AEE and decides whether to notify or not
146 %beyond the requirements of the Fourth Schedule,
147 %however, there are few guidelines to assess the quality of an
148 %AEE \parencite{miller2010implementing}.
152 % http://www.thefreelibrary.com/Mediating+sustainability%3a+the+public+interest+mediator+in+the+New...-a0176372138
153 \begin{quote}
154 only those parties who make a submission on a notified consent
155 application have standing to appeal a council's decision to the
156 Environment Court.
157 \end{quote}
159 % TODO: review course readings to find problems
161 \subsection{The implementation gap}
163 \begin{quote}
164 % there was a gap between the environmental management techniques
165 % advocated in district plans and those being applied in resource
166 % consents. The lower the council capacity and plan quality, the greater
167 % the implementation gap. For a number of reasons, most plans are more
168 % ambitious in their scope and intentions than is realised in practice
169 % through techniques used in consents.
170 \end{quote} [confessions, p 13]
172 % TODO