\section{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


\section{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



\subsection{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}.


\subsection{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.


\subsection{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}


\section{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.


\subsection{Access to information and representation}

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}.


\subsection{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
