[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 It is of utmost importance that an assessment of environmental effects
122 be detailed enough and understandable for interested members of the
123 public to enable them to make submissions on the proposal without
124 first having to engage in investigations
125 themselves \parencite{reading4.3}. A misleading or unintelligible AEE
126 will be very difficult for the public to challenge on technical
127 grounds. If, additionally, the application is not considered to have
128 more than minor impacts and is thus not publicly notified, it becomes
129 very difficult for members of the public to affect the outcome of the
130 resource consent decision. According to \textcite{mediation}, only
131 those parties who make a submission on a notified application have
132 legal standing to appeal a council's resource consent decision to the
133 Environment Court. As revealed by the 2010/11 survey of local
134 authorities the New Zealand \textcite{ME1069} carries out every
135 two years, only about four per cent of all resource consents in the
136 two-year period were publicly notified. Unfortunately, there is little
137 data on what proportion of the remaining 96 per cent are small-scale
138 applications submitted by private people and how many are larger
139 projects where the decision not to notify may not have been justified.
140 According to a report by the Parliamentary Commissioner for the
141 Environment, complaints about councils' decisions not to notify
142 applications are rather common and are often upheld due to the fact
143 that local authorities ``failed to carry out sufficient enquiries
144 before deciding that there were no affected parties or that it would
145 be unreasonable for the applicant to obtain written approval from
146 affected parties'' \parencite{reading4.3}. In fact, according to the
147 \textcite{ME1069}, the number of formal objections against consent
148 decisions follows an upward trend in recent years.
150 % beyond the requirements of the Fourth Schedule there are few
151 % guidelines to assess the quality of an AEE \parencite{miller2010implementing}.
154 \subsubsection{The importance of plan quality and coverage}
156 Often the quality and coverage of activities in the council's plan
157 determine whether or not the expected effects of a development
158 activity will be considered minor and thus influence directly whether
159 an application will be publicly notified. This dependency on plan
160 quality and coverage can be seen in the dealings of the Christchurch
161 City Council with a series of resource consent applications between
162 2004 and 2006 relating to the construction of a 53 metre high office
163 block and an adjacent car park building \parencite{ruske}. The first
164 application in 2004 was processed on a non-notified basis, despite the
165 opposition of about 1,300 people who presented a petition to the
166 council in which they demanded a change to the city plan to explicitly
167 restrict the height of buildings in the affected zone. Since the city
168 plan did not include any height restrictions for buildings in the
169 zone, the application could not be rejected on grounds of
170 non-compliance. A second application for a scaled-down proposal was
171 also approved without public notification.
173 While it is possible to amend plans and established mechanisms for
174 extensive consultation exist in the plan creation process, it is
175 clearly not feasible to modify plans on a case-by-case basis. Under
176 the assumptions of the RMA, plans are the foundations on which
177 resource consent decisions are made to achieve sustainable
178 development; they were not meant to be used as a tool to block
179 individual proposals and hence do not support quick amendment
180 procedures.
183 \subsubsection{The implementation gap}
185 The links between plan quality, plan implementation through AEE review
186 and resource consent decisions, and environmental outcomes were the
187 subject of the \emph{Planning Under a Cooperative Mandate}
188 programme \parencite{confessions}. One of the core findings of the
189 programme that studied six councils over a period of several years was
190 that
192 \begin{quote}
193 there was a gap between the environmental management techniques
194 advocated in district plans and those being applied in resource
195 consents. [...] For a number of reasons, most plans are more ambitious
196 in their scope and intentions than is realised in practice through
197 techniques used in consents. \parencite[p 13][]{confessions}
198 \end{quote}
200 The findings further suggest that the width of this implementation gap
201 is closely linked to council capacity. Due to the devolved nature of
202 environmental management intended by the RMA and the wide range of
203 activities requiring assessment, an overwhelmingly large number of
204 resource consent applications is to be processed by local councils,
205 many of which operate under constraints, such as time pressure and the
206 need to save costs. The very benefits that were thought to follow
207 from a devolved mandate---such as specialised assessment methods most
208 appropriate for the district and innovation in the area of evaluation
209 techniques---may actually be suppressed as a consequence of a lack of
210 capacity on the level of local government.
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 \parencite[p 46][]{confessions}
221 \end{quote}
223 % TODO
224 %The lower the council capacity and plan quality, the greater
225 %the implementation gap.
228 %TODO: report on the sad state of council plans that have had
229 % provisionary plans for years and the process dragged on for many years.
233 \subsection{Submissions, hearings and the officer's report}
235 For those applications that the responsible council has determined
236 will have impacts on the environment that are more than minor and that
237 have been publicly notified, members of the public can make
238 submissions to challenge---or express support for---the application.
240 % TODO
242 At the example of three case studies, \textcite{reading5.6} argues
243 that access to information and the ability to present a position
244 professionally is a precondition to successful participation in the
245 consultation stages of the resource consent process.
248 % Officer's report and decision-making.
249 - in the case of public notification, council prepares a report based
250 on submissions, the AEE and additional evidence provided by the
251 applicant. The report is hence strongly influenced by the applicant's
252 input.