path: root/assignment3/background.tex

\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}. 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}. Any consultation
undertaken before the application including any results or agreements
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.


\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}

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.

Following the submission period a pre-hearing meeting can be arranged,
where submitters, applicant and council representatives try to clarify
issues before the official hearing in a rather informal setting.
Additional mediation sessions may be arranged to resolve conflicts and
reach an agreement without the need for a formal
hearing \parencite{ME959}. For publicly notified applications, the
council usually organises a formal hearing in which submitters may
present their submissions and where the applicant is to present
whatever additional information has been requested. 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 decision whether to grant the resource consent or not is
made on the basis of the officer's report.


\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 citizen
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}.

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 commoditisation of resource consents}

According to the \textcite{PCE1998}, the RMA creates a climate in
which there are incentives for applicants to enter into so-called side
agreements with directly affected persons, as through early
consultation and mediation with the affected party public notification
(and with it long delays) can be avoided. While the goal of the
resource consent process is to lead to environmentally sustainable
outcomes, the existence of side agreements may result in worse
environmental outcomes, for example when affected parties receive
financial compensation in return for their approval of an
environmentally harmful development.

Likewise, the evaluation of the positive effects of the mining
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}. These
payments may benefit the general community and sway the public's
attitude towards the proposal, but it does not necessarily compensate
those who are directly affected by the proposed activities (if they
are willing to receive compensation in exchange for accepting the
proposal at all).


\subsection{The value of submissions from the public}

It would not be fair to conclude from this case study that economic
benefit generally outweighs the concerns of the public.  In September
2012, the Dunedin City Council publicly notified a proposal to
construct a 28-storey\footnote{In the initial announcement by the city
council the hotel's height was reported as 27 floors plus basement,
while news reports consistently referred to its proposed height as 28
storeys \parencite{hotel-announce}.} tall hotel on Wharf Street close
to Otago Harbour.  Despite the economic benefits that the city of
Dunedin could derive from the construction of a modern five star hotel
and the mayor's backing of the project, about 80 per cent of the 507
submissions were in opposition of the proposal, mostly because the
bulky hotel was considered too tall and its style not in character
with its surroundings.  After two hearings and the applicant's refusal
to demonstrate the height of the hotel using a tethered balloon or
helicopter, the council sided with the opponents and rejected the
proposal on 6 June, 2013 \parencite{hotel-rejected}.

Interestingly, among the council's reasons for the rejection of the
application this statement can be found: ``for us to be able to grant
consent, we had to be very certain that the effects of imposing this
structure on this site had been fully canvassed in the application and
were able to be fully understood. Unfortunately, this was not the
case. \emph{The application suffered, in our view, from a lack of
proper information.}'' \parencite[][p 93, emphasis
mine]{hotel-decision}.  This is a somewhat surprising statement as
this `lack of proper information' did not prevent the application from
passing the council's review and only became apparent after a record
number of submissions from the public had been received.  It appears
that the submissions highlighted problems with the application and
thus tipped the scales against the proposed development despite its
economic benefits.