\section{The resource consent process} \subsection{Before the application} In New Zealand development activities are regulated through regional and district plans. These plans are prepared by the regional and district councils in a long process that provides ample opportunity for consultation with the public and industry representatives alike \parencite{miller2010implementing}. % TODO: a little more on how consultation is used during plan design? For any activity not explicitly permitted by the plans and policy statements a resource consent must be obtained \parencite{fookes}. Any development activity that is advertised as resulting in significant positive impacts on the region---the type of activity that this analysis focuses on---is very likely to also require resource consents. After checking the appropriate district or regional plans to confirm whether a resource consent is required, the applicant is to prepare a thorough assessment of environmental effects (AEE). Although it might be beneficial to consult with possibly affected people and interested members of the general public at this stage, consultation is not a general requirement under the RMA. However, consultation may be the best means to comply with those sections of the RMA that require the recognition of the interest of \emph{tangata whenua}, for example, when a development proposal affects locations or resources that are of special interest to the Maori \parencite{ME960}. % TODO: - any results of consultation must be included in the AEE \subsection{Review and notification} After the application is lodged and the AEE submitted, the council will process it. If the AEE is considered lacking, the council may ask the applicant to provide further information; inadequate applications that are unlikely to be improved significantly may also be rejected altogether. After a review of the AEE, the council processing the resource consent application may decide to involve the public by means of notification or determine that notification is not required when the activity is expected to only have minor effects and all affected parties agree on the proposal \parencite{fookes}. A publicly notified application will be advertised in the newspaper and be sent to all people thought to be affected by the activity. The council will also call for written statements on the proposal from members of the general public \parencite{ME959}. In some cases, the council may decide to notify only directly affected people (for some definition of `affected'); the purpose of such limited notification is to give affected people---those who have not provided their written approval to the applicant---the opportunity to suggest conditions for the resource consent. Limited notification may result from an applicant's failure to engage in consultation with the affected people before lodging the application, although it may also be required when affected people refuse to provide written approval before the assessment of environmental effects has been carried out and submitted. % TODO: easy to buy off directly affected people -- outcome is not sustainable %- side agreements: applicants can buy consent by paying directly % affected people, incurring poor environmental outcomes for the % community or future generations. \parencite{PCE1998} % % % \begin{quote} % The environmental risks associated with side agreements depend on % the council’s knowledge and treatment of any contractual % arrangements by consent applicants. Good practice by the consent % authority can help to minimise these risks. For example, where a % private agreement does not necessarily result in effects on the % environment being mitigated, consent authorities should impose % appropriate conditions to mitigate these effects. % \end{quote} \parencite[][p 9]{PCE1998} % % %- wider example may be the golden link mine where the applicant % promised to do unrelated work for the community to secure approval \subsubsection{The importance of reviews} The review of the application and the AEE and the decision whether to notify the application or not (and to what degree) is the first step in the resource consent process that Grinlinton referred to in his statement. A council that---for whatever reasons---fails to reject applications with poor or deliberately misleading assessments effectively off-loads the burden to challenge the application to members of the general public. The \textcite[p 41]{reading4.3} stresses that \begin{quote} [t]he full evaluation of AEE information provided by applicants is one of the most critical aspects of the entire resource consent process. The applicant is responsible for a full assessment of the proposed activity, but such responsibility is meaningless unless a council provides guidance and, where necessary, forms judgements on the adequacy of this assessment. \end{quote} An investigation into the consent processing performance of selected councils conducted by the Ministry for the Environment revealed that councils rarely reject subpar resource consent applications as permitted by section 88(3) of the RMA; much more often, faulty applications are accepted and gradually improved through requests for additional information, a mechanism provided by section 92 of the RMA \parencite{performance}. In earlier case studies, the councils estimated that further information was requested (either formally under section 92 or informally) from at least half of all application before the application was accepted \parencite{reading4.3}. It is doubtful whether poor quality assessments significantly improve as a result of these repeated requests. It is conceivable, however, that this approach not only delays the processing of resource consents, but also increases the likelihood of poor quality applications slipping through. If the application is not considered to have more than minor impacts and is thus not publicly notified, it becomes very difficult for members of the public to affect the outcome of the resource consent decision. According to \textcite{mediation}, only those parties who make a submission on a notified application have legal standing to appeal a council's resource consent decision to the Environment Court. As revealed by the 2010/11 survey of local authorities the New Zealand \textcite{ME1069} carries out every two years, only about four per cent of all resource consents in the two-year period were publicly notified. Unfortunately, there is little data on what proportion of the remaining 96 per cent are small-scale applications submitted by private people and how many are larger projects where the decision not to notify may not have been justified. According to a report by the Parliamentary Commissioner for the Environment, complaints about councils' decisions not to notify applications are rather common and are often upheld due to the fact that local authorities ``failed to carry out sufficient enquiries before deciding that there were no affected parties or that it would be unreasonable for the applicant to obtain written approval from affected parties'' \parencite{reading4.3}. In fact, according to the \textcite{ME1069}, the number of formal objections against consent decisions follows an upward trend in recent years. % beyond the requirements of the Fourth Schedule there are few % guidelines to assess the quality of an AEE \parencite{miller2010implementing}. \subsubsection{The importance of plan quality and coverage} Often the quality and coverage of activities in the council's plan determine whether or not the expected effects of a development activity will be considered minor and thus influence directly whether an application will be publicly notified. This dependency on plan quality and coverage can be seen in the dealings of the Christchurch City Council with a series of resource consent applications between 2004 and 2006 relating to the construction of a 53 metre high office block and an adjacent car park building \parencite{ruske}. The first application in 2004 was processed on a non-notified basis, despite the opposition of about 1,300 people who presented a petition to the council in which they demanded a change to the city plan to explicitly restrict the height of buildings in the affected zone. Since the city plan did not include any height restrictions for buildings in the zone, the application could not be rejected on grounds of non-compliance. A second application for a scaled-down proposal was also approved without public notification. While it is possible to amend plans and established mechanisms for extensive consultation exist in the plan creation process, it is clearly not feasible to modify plans on a case-by-case basis. Under the assumptions of the RMA, plans are the foundations on which resource consent decisions are made to achieve sustainable development; they were not meant to be used as a tool to block individual proposals and hence do not support quick amendment procedures. \subsubsection{The implementation gap} The links between plan quality, plan implementation through AEE review and resource consent decisions, and environmental outcomes were the subject of the \emph{Planning Under a Cooperative Mandate} programme \parencite{confessions}. One of the core findings of the programme that studied six councils over a period of several years was that \begin{quote} there was a gap between the environmental management techniques advocated in district plans and those being applied in resource consents. [...] For a number of reasons, most plans are more ambitious in their scope and intentions than is realised in practice through techniques used in consents. \parencite[p 13][]{confessions} \end{quote} %TODO: report on the sad state of council plans that have had % provisionary plans for years and the process dragged on for many years. The findings further suggest that the width of this implementation gap is closely linked to council capacity. Due to the devolved nature of environmental management intended by the RMA and the wide range of activities requiring assessment, an overwhelmingly large number of resource consent applications is to be processed by local councils. Since the RMA specifies statutory time periods within which certain tasks must be performed and due to the need to save costs, many councils operate under tight constraints that negatively impact on their ability to implement plans. The very benefits that were thought to follow from a devolved mandate---such as specialised assessment methods most appropriate for the district and innovation in the area of evaluation techniques---may actually be suppressed as a consequence of a lack of capacity on the level of local government. Summarising the effect of capacity on consent processing practice, \textcite[p 46][]{confessions} comes to this conclusion: \begin{quote} The findings of this research would suggest that low capacity forces councils to adopt policies that appear to favour economic growth. In many cases growth is needed in order to maintain---at the minimum--- current service levels. Effectively, the pressure for development to proceed quickly and unimpeded does not foster a climate that considers and values environmental quality to the extent advocated in many district plans (or envisaged by the RMA). \end{quote} \subsection{Submissions, hearings and decision-making} For those applications that the responsible council has determined will have impacts on the environment that are more than minor and that have been publicly notified, members of the public can make submissions to challenge---or express support for---the application. % On hearings \parencite{ME959}: \begin{quote} % A hearing allows you and anyone who has made a submission to explain % their views about the application. The council usually holds a formal % hearing about a notified application and can sometimes hold a hearing % for a non-notified application. % % A pre-hearing meeting can be a useful way to try and sort out issues % before a hearing in a relatively informal setting. It can also help % save time at the hearing itself, or even avoid the need for a hearing % altogether. You can suggest to the council that a pre-hearing meeting % may be useful. % % The council can require or invite people to attend the pre-hearing % meeting, including people who have made submissions on your % application. The council officer will also be likely to attend. If you % are required to attend a pre-hearing meeting, and don’t, the council % may refuse to process your application. If submitters are required to % attend a pre-hearing meeting, and don’t, the council can refuse to % consider their submission. % % Everyone at the hearing will get a copy of a report about what went on % at the pre-hearing meeting, including the issues that were agreed on % and those that are outstanding. The council must consider this report % in determining the application. % % As well as arranging a pre-hearing meeting, the council can also refer % you and some or all of the submitters to mediation. Mediation can help % you clarify issues, resolve conflicts and reach agreement without % needing to go to a hearing. You can request the council to refer you % to mediation. \end{quote} % TODO: Officer's report and decision-making. % TODO: I don't like this paragraph at all. After an evaluation of the application and public submissions, council prepares a report based on the AEE and additional evidence provided by the applicant during the hearings in response to the submissions from the public. The report is hence strongly influenced by the applicant's input. \subsubsection{Information access} It is of utmost importance that an assessment of environmental effects be detailed enough and understandable for interested members of the public to enable them to make submissions on the proposal without first having to engage in investigations themselves \parencite{reading4.3}. A misleading or unintelligible AEE will be very difficult for the public to challenge on technical grounds. What presentation of information is `unintelligible' and what is not depends to some extent on the public. At the example of three case studies, \textcite{reading5.6} argues that higher levels of education and income (both facilitating access to information) are predictors of successful participation in the consultation stages of the resource consent process. \textcite{reading4.4} distinguishes between physical access to information (e.g. when travel is required to obtain information) and intellectual access and concludes that access usually favours the ``mobile, determined and educated European New Zealander, confident in dealing with public servants, able to seek advice from specialists, and competently handle the requirements of written submissions.'' % TODO: p 47, reading 5.4: % submitters may have to take time off work to participate, may have to travel % p 57: % "inadequate information may lead to poor outcomes: people failing to make submissions on matters affecting them + poorly considered appeals to the Environment Court" % "levels of knowledge and understanding are still low, representing a significant barrier to effective participation in all resource management processes." The case of the Golden Link Project and the Correnso Underground Mine application by Newmont Waihi Gold illustrates this. The proposal for a new underground gold mine in the eastern part of Waihi, a town in the Hauraki district with a long history as a gold mine town, would directly affect about 50 homes below which the mining operations would take place. The application was publicly notified on August 30, 2012 and 501 submissions were received until the end of the submission period on September 28, 2012. 120 of the submitters requested to be heard at hearings, including representatives of organised citisen groups in opposition such as the Waihi East Ratepayers Group Inc (WERGI) and Protection of Waihi Environment and Ratepayers (POWER). Despite the residents' many concerns about blast vibrations, noise, dust, property value loss, and physical damage to their property, the resource consent for the underground mine was granted by the council. In its decision report the council states that ``the positive effects of the proposal are significant'' while the ``adverse effects of the proposal will be minor'', the ``most significant adverse effect on amenity [being] vibration'' \parencite{goldenlink}. The evaluation of the positive effects of the proposal may have been influenced to some degree by Newmont's previous financial commitment to the community by funding local primary school and preschool facilities and providing \$400,000 for Waihi residents to spend on community amenities \parencite{goldenlink-appeal}. According to Green MP Catherine Delahunty, the residents did not have the financial means to provide expert evidence at the hearings to demonstrate that their concerns are justified. Without expert testimony their experience with two other underground mines in the region (although not located directly underneath their homes) could be dismissed as anecdotal \parencite{goldenlink-delahunty}. Both resident groups have announced they would be appealing to the Environment Court \parencite{goldenlink-appeal}. \subsubsection{The value of submissions from the public} % Dunedin waterside hotel % ~~~~~~~~~~~~~~~~~~~~~~~~ % % - 27 stories % - despite economic benefits, 80% of 507 submissions are in opposition % - applicant didn't supply information in response to council's request % - weirdness: council rejected application because not enough information was provided. % how could the application be accepted in the first place? % - public submissions highlighted problems with the application and prevented the project % despite very positive expectations from the major % % Council's page on the application: [locked] % http://www.dunedin.govt.nz/council-online/notified-resource-consents/current-notifieds/luc-2012-212 % % Sept 2012 % Original announcement by the council % http://www.dunedin.govt.nz/your-council/latest-news/september-2012/resource-consent-sought-for-major-hotel % % Dec 21, 2012 % Applicant asked to demonstrate height with baloon or helicopter. % http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10855550 % % Mar 15, 2013 % Hotel construction feasible: report % http://www.odt.co.nz/news/dunedin/249520/hotel-construction-feasible-report % % Mar 17, 2013 % Otago Regional Council likely to refuse consent; requested info was not supplied. % http://www.odt.co.nz/news/dunedin/249951/refuse-consent-hotel-orc-says % % Mar 21, 2013 % Betterways Advisory Ltd counsel Phil Page complains about submissions from competitors. % http://www.odt.co.nz/news/dunedin/250221/strong-push-hotel-hearing-adjourned % % April 10, 2013 % No third hearing for hotel; decision to be made before June 4 % http://www.odt.co.nz/news/dunedin/252532/committee-rule-hotel-soon % % June 6, 2013 % Proposal rejected by council. % http://www.odt.co.nz/news/dunedin/259914/hotel-ruling-disappoints