path: root/assignment3/background.tex

\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}.  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.

% TODO
- EIA in NZ differs from international best practice, because
  consultation before the application is lodged is not required

- consultation may be required by another Act; consultation with Maori
  (if affected) is usually required due to Treaty

- 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.

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.  A misleading AEE will be very
difficult for the public to challenge on technical grounds.  If,
additionally, 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 made a submission on a notified application have
legal standing to appeal a council's resource consent decision to the
Environment Court.

A review of 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 in line with section 92 of the
RMA \parencite{performance}. It is doubtful whether poor quality
assessments significantly improve through this course of action. It is
clear, however, that this approach not only delays the processing of
resource consents, but also increases the likelihood of poor quality
applications slipping through.

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 there are established
mechanisms for extensive consultation in the plan creation process, it
is clearly not feasible to modify plans on a case-by-case basis.
According to the 2010/11 survey of local authorities the New Zealand
\textcite{rma-survey} 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
whether to notify or not is possibly contentious.

%TODO: report on the sad state of council plans that have had
% provisionary plans for years and the process dragged on for many years.



\subsection{Submissions, hearings and the officer's report}

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.

% TODO
% Officer's report and decision-making.
- in the case of public notification, council prepares a report based
on submissions, the AEE and additional evidence provided by the
applicant. The report is hence strongly influenced by the applicant's
input.


\section{Consultation and participation in EIA and the RMA}

refer to http://www.mfe.govt.nz/publications/rma/everyday/consent-consultation/


\subsection{AEE review and notification}

%beyond the requirements of the Fourth Schedule,
%however, there are few guidelines to assess the quality of an
%AEE \parencite{miller2010implementing}.

% TODO: review course readings to find problems

\subsection{The implementation gap}

\begin{quote}
% there was a gap between the environmental management techniques
% advocated in district plans and those being applied in resource
% consents. The lower the council capacity and plan quality, the greater
% the implementation gap. 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.
\end{quote} [confessions, p 13]

% TODO