David Bagnall
Clerk of the Committee
Transport and Environment Select Committee
Parliament Buildings
Wellington.
Submission on the Proposed Amendments to the Resource Management Act (September 1999)
Introduction: the NZAIA
The NZAIA is an incorporated society whose members are largely professionals involved in the practise, development, and teaching of environmental and social impact assessment. It was founded in the early 1980s and first incorporated in 1990 with a primary interest in social assessment, but recently expanded to include environmental assessment. The NZAIA exists to promote the practise of impact assessment, including:
The Association is an affiliate of the International Association for Impact Assessment (IAIA) - an international body with some 1500 members in over 100 countries. It is the publisher of the major international scientific journals on impact assessment. The NZ Association was the principal organiser of the IAIA conference held in Christchurch in 1998 - attracting over 400 delegates from over 80 countries. Further information on the NZAIA and IAIA can be found on our website: www.nzaia.org.nz
The NZAIA has very strong concerns over Section 2 (9) and Section 92 (c) of the Bill. These concern proposed changes to the definition of "environment" in the Principal Act , and the consequent change to clause 2 (a) of the existing Fourth Schedule.
These changes are clearly intended to reduce the consideration of the interests of people and their communities in policy and plan development and the consideration of environmental effects, to "amenity", "health", "safety" and (the nebulous and undefined) "cultural values". We believe these proposed amendments are short-sighted, ill-considered and poorly-argued, out of step with international practise and understanding, and driven by ideological rather than practical considerations. As such they need to be examined closely and with due reflection on the reasons for the inclusion of "people and communities" in the original Act and their possible consequences for environmental management in New Zealand in the future.
Discussion to support the points in the following submission is contained in Appendix 1. In summary, our submissions on specific clauses of the bill are as follows:
Definition of "environment" (Clause 2 (9))
The proposed amendment to the definition of environment should not be adopted, but rather reformulated to clarify the position of people and communities in the environment. We suggest retaining the existing wording of clause (a) (relating to ecosystems) in its current form, while adopting the proposed wordings for clause (b) and (c) of the new definition.
The inclusion of "cultural values" in the definition of environment (Clause 2 (9))
"Cultural values" should only be included in the definition of environment if it is accompanied by the inclusion of a definition for "cultural values".
Definitions of "public notice" and "working days" (Clause 2)
The present RMA definitions of "public notice" and "working days" should be retained.
Changes to consent categories (clauses 2 and 102)
The non-complying category should be retained.
Commissioner Hearings (Clauses 10 and 15)
The costs of commissioner hearings should not fall on submitters.
The best option to address concerns about council decision-making would be to provide for commissioners to sit alongside the council hearing committee in an advisory or decision-sharing role. Consideration should also be given to including tangata whenua and people with specialised technical expertise on hearing committees. Greater investment should be made in training councillors and providing good practise guidance to local authorities.
Establishing objectives, policies and rules (Clause 11)
We oppose the requirement that a cost-benefit analysis must be undertaken before any objective is adopted.
We support the removal of the test of necessity. We also support the inclusion of the precautionary principle. However, we consider that the principle should apply not just to the section 32 evaluation process, but to all decisions made under the Act.
Contestable Consent Processing (Clause 13)
We oppose the proposed introduction of contestable consents processing.
Duty to gather information, monitor and keep records (Clause 14)
We support the amendment to require local authorities to compile and make available a review of their monitoring results. The amendment is important as it will require councils to monitor the efficiency and effectiveness of policies and rules to ensure they are working.
We also support the introduction of provisions requiring records to be kept of all decisions relating to the notification of resource consent applications. This is a necessary requirement to ensure the public has the ability to challenge notification decisions. We submit, however, that the wording of the amendment needs to be clarified to state that all records should be publicly available.
Strengthening national environmental standards (Clauses 17 and 49)
We support the changes to section 43. The amendment is important as it will strengthen and extend the matters which may be included in regulations for national environmental standards.
We also support the changes to section 128 which provide for water, coastal and discharge consents to be reviewed when a national environmental standard has been made. We submit, however, that the amendment should also include provisions to enable land use consents to be reviewed under section 128.
Notification of Resource Consents (Clause 37)
NZAIA opposes the proposed changes to the public notification provisions of the Act. Specifically, we oppose:
Weakening environmental impact assessment (Clauses 37 and 92)
Providing applicants with a right to refuse requests for information is unjustified as it undermines the rationality of the process. The amendment is likely to lead to excessively confrontational relations between the two parties and present a significant threat to the quality of environmental management.
Direct Referral to the Environment Court (Clauses 39 and 52)
A process for making direct application to the Court should be developed and included in the Act; but
Consideration of Consent Applications (Clause 41)
The primacy of Part II of the RMA in decision-making should be retained.
The proposed amendment will severely undermine the effectiveness of the purpose and principles of the Act.
Representation at proceedings of the Environment Court (Clause 77)
A longer notification period is needed to ensure all parties are given a genuine opportunity to participate in the process.
"Consequential" change to the Fourth Schedule (Clause 92 (c))
The proposed amendment laid out in Section 92 (c ) of the Bill be rejected, and that the existing wording of Section 2 (a) of the fourth Schedule of the Act be retained in its present form.
The requirements for AEEs should be strengthened, not weakened, in order that AEEs are reliable as a basis for determining if, when and how a development should proceed.
That concludes the summary of our submission. Thank you for the opportunity to take part in this process. We hope that you will give our submission your full consideration.
Yours faithfully,
Chris Cosslett
pp Gerard Fitzgerald, Convenor and James Newell, Secretary.
Appendix 1: Discussion
Definition of environment (Clause 2 (9))
Submission:
Explanation:
We agree that the current definition is unclear and needs tidying up, especially its implication for Section 5 (2). However the amendments proposed by the Minister eliminate the recognition of people and communities as part of the environment in any holistic sense, limiting this recognition to the "health, safety, amenity values and cultural values of people and communities". This is a significant weakening of the present inclusive and holistic definition, which is more in keeping with modern international thinking on the environment.
One of the arguments mounted against including people and communities in a holistic sense in the definition of environment is the apparent confusion generated in Section 5 (2) of the Act (see MfE's Analysis of Submissions, March 1999, p19). This especially refers to the apparent contradictions that people and communities are enabled to pursue their social and economic wellbeing in the first part of Section 5 (2) and at the same time this is "constrained" by the requirement to avoid the adverse effects on people and communities (part of ecosystems) and the social and economic conditions which affect ecosystems (including people and communities). We disagree that "it does not make sense" that "people are to be enabled and constrained at the same time in the achievement of social and economic wellbeing" (MfE, 1999a, p19), because it is not necessarily the same people who are enabled and constrained under the current definition.
Under the existing formulation, particular people, organisations, and institutions ("Party A") seek their social and economic wellbeing through the use of natural and physical resources, and apply for resource consents (and changes to district plans, rules etc) to achieve this. Other people and communities ("Parties B", "C", etc) who inhabit and are part of the particular environment and have some stake in those natural and physical resources can be (and often are) affected by the actions and proposals of "Party A". Their interests, goals and concerns are not necessarily the same as Party A's, and indeed, Party A often may not even be a member of their community or depend on the local environment and resources. The existing wording of section 5 (2) recognises that the wellbeing of all affected people and communities (as well as the bio-physical aspects of the environment) need to be considered and protected from the adverse effects.
We believe that removing "people and communities" altogether from the definition of environment, thereby limiting the protection for communities under section 5, and not requiring a systematic assessment of the effects of resource developments etc on the socio-economic well-being or conditions of people (as is not required by the current legislation), is ill-considered, inviting future environmental conflict and immoral.
The Minister argues that "social and economic matters" lie outside the boundaries of what is relevant to the Act and notes that they are not solely a matter for environmental policy. We agree with the latter point, but wonder where else the consideration of social, economic and cultural effects might take place. He further argues that the requirement to avoid, remedy or mitigate adverse social and economic effects "invites functionaries to predetermine desired social and economic outcomes", but that this is a "meaningless exercise unless decision-makers have some idea of the social and/or economic outcomes sought" such that "a duty to avoid, remedy or mitigate adverse social and economic effects is really little different than a duty to pursue particular social and economic outcomes" (1999, p6). Such outcomes are considered to lie outside of the aim of the Act - the sustainable management of natural and physical resources. On this basis, "cultural" matters and "values" must also lie outside of the Act since there can also be no clear statement of desirable cultural outcomes. In reality we cope with cultural matters by inviting "cultural" people (Maori) to define the cultural effects and possible mitigating measures (i.e. desirable outcomes) for us and then they are tested for their relevance to sustainable management. Surely it is possible to do (and continue to do) the same for social and economic matters through case law. And if not, why has Government not provided clear direction on the desirable social and economic outcomes for our society in the same way as it has done for environmental outcomes?
The Minister expressed that in reviewing the Act he wished "to avoid unproductive and pointless philosophical squabble" (1999, p23). However, the proposal to reduce the nature of human beings' environmental concerns to those of health, safety, amenity and cultural values instead of conducting a debate on the nature of the relationship between humans and their biophysical environment - which, after all, lies at the centre of the higher-order goal that sustainable management seeks to achieve - is not consistent with the purpose of the Act. The consequence is that he offers a mechanical legalistic solution to resolve a fundamental issue. We suggest a discussion is required on the higher-order outcomes sought by having an Act which promotes the sustainable management of natural and physical resources. We suggest this would reveal that our goals are ultimately about achieving and maintaining social and economic wellbeing.
It appears that because the Minister and the drafters of the amendment can find no alternative definition of environment which captures the two-way relationship between human beings (i.e. people and their communities) and natural and physical resources and ecosystems, the relationship should simply be ignored. By analogy, this is tantamount to saying that because one cannot formulate an adequate definition of bathing, we should only focus on the bathwater and the bath, and ignore the baby.
The MfE claims that the proposed amendment:
provides for a consideration of social and economic factors under the aegis of enabling people to do things. . . The corollary of "enabling" is "disenabling". By definition, anything which disenables people and communities from providing for their well-being - and this includes social and economic factors - acts against the achievement of the first part of section 5 (2) and is therefore a factor to be considered (MfE, 1999b, p10).
We are not aware of any case law to date which might support (or undermine) such an interpretation of section 5. However an argument for this type of interpretation, if adopted by the court, has merit. If this is indeed an intention of the proposed amendment, we believe that the intention of section 5 itself needs clarification. To achieve this the "enabling" phase in the first part of section 5 (2) should be moved to the second part - so Section 5 (2) might be formulated as follows:
"In this Act, 'sustainable management' means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which:
(a) enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety; and
(b) sustains the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
(c) safeguards the life-supporting capacity of air, water, soil, and ecosystems; and
(d) avoids, remedies or mitigates any adverse effects of activities on the environment."
However such a formulation would still not provide for the protection and sustaining of society (which includes people and communities) in the face of a proposed resource use which might have significant negative social effects. There are two immediately obvious ways in which broader social concerns (such as social cohesion) might be addressed: add the words "including people and communities" after "environment" in the existing Section 5 (2) (c); or re-include "people and communities" in the definition of "environment" as per our submission above.
The inclusion of "cultural values" in the definition of environment (Clause 2 (9))
Submission:
Explanation:
The MfE's clause by clause explanation of the proposed amendment to the definition of environment notes
'cultural values' by definition involve a social component, so too, do 'amenity values'. These terms give explicit recognition to issues that people and communities consider important in determining the management of natural and physical resources. Without the inclusion of 'cultural values' in the definition of environment it would be difficult, for example, to factor in issues of concern to tangata whenua and other cultures (MfE, 1999b, p10).
The Bill does not define or explain "cultural values". To argue that the use of the term "cultural values" is in some way "explicit", and then to omit a definition (along the lines of the definition of "amenity values"), demonstrates the hurried and poorly-considered nature of the proposed amendment 2 (9).
What is intended by the incorporation of "cultural values"? From the MfE's explanation, the term "cultural", as used in the proposed amendment, is not intended to mean "pertaining to high culture", as in the arts. Rather, it appears to be used in the sense that anthropologists originally defined it, and has come to be used in general speech.
The late Dr Roger Keesing, perhaps Australasia's most accomplished and respected social anthropologist, says the term "culture" (the key focus of the field of anthropology) refers to a
" system of shared ideas; the conceptual designs that underlie the ways in which a people live; the organised system of knowledge and belief whereby a people structure their experience and perceptions, formulate acts, and choose between alternatives" (1971, p21).
Richley Crapo (in a widely used anthropology text published in 1996) has defined "culture" in a similar fashion, as "a learned system of beliefs, feelings and rules for living around which a group of people organise their lives" (p 38).
"A culture" therefore refers to the learned system of shared ideas, beliefs, feelings and rules for living of a particular group. In reality "a culture" is a composite of the ideas contained within a people or society. It is also a generalisation, within which there is variation. "Cultural" must therefore mean "pertaining to the system of shared ideas, beliefs, feelings and rules for living of a particular group."
Crapo provides a useful definition of values: they are "feelings about what should be considered good, bad, moral, or immoral"; and, "the ideals that people long for but do not necessarily pursue" (1996, p46). A set of values therefore pertains to (and are part of) a particular culture - the "set of shared ideas". Three components of the types of ideas found in all cultures (as described by Keesing) seem to be relevant to "values":
Based on these generally accepted definitions of "cultural" and "values", "cultural values" would seem to be the feelings about what should be considered good, bad, moral, or immoral, of the members of a group of people who share a system of ideas, beliefs, feelings, rules for living and way of life.
In the context of the RMA and the proposed amendment 'cultural values' refers to the feelings and beliefs relating to the use and management of natural resources and which are commonly held to be true by a particular and distinct people, community, society or ethnic group, including Maori. Is this what is intended? And how is it that such shared feelings and beliefs constitute a part of the "environment", and yet the people themselves and their communities do not? This simply makes no sense.
"Consequential" change to the Fourth Schedule (Clause 92 (c))
Submission:
Explanation:
If we accept the MfE's contention that "anything which disenables people and communities from providing for their wellbeing - and this includes social and economic factors - acts against the achievement of the first part of section 5 (2), and is therefore a factor to be considered" (MfE, 1999b, p.10), a crucial and consequent issue arises as follows:
How will the requirement of enabling (rather than disenabling) be decided on? For example in the case of a proposal for which a resource consent is required, how will the consenting authority assess whether and to what extent the proposed resource development will "enable" or "disenable" people and communities to provide (go on providing?) for their social, economic, and cultural wellbeing?. In the normal course of deciding on a proposal the consenting authority would be aided by an Assessment of Environmental Effects (AEE) accompanying the resource consent application. If Section 2 of the Fourth Schedule, which specifies what should be considered in the preparation of an AEE, remains in its present form - with the words "socio-economic" retained in clause (a) - then the extent of the "enabling" and "disenabling" referred to above will be investigated and reported on in the AEE as part of the resource consent application. However if the proposed amendment is implemented, then the consenting authority and the wider community would have no means of deciding whether (and to what extent) a proposed resource development enables or disenables people and communities to provide for their social, economic and cultural wellbeing!
As can be seen, the assumed automatic "consequential" amendment to the Fourth Schedule (2 (a)) would nullify the claimed advantages of amending the definition of "environment" and the clarification of Section 5(2). The effect of this will be to remove consideration of the social and economic effects/impacts of policies, plans and resource development proposals.
Environmental impact assessment, as adopted by most developed countries, and conducted in New Zealand as an AEE, has developed primarily as a rational means of alerting people and communities to the potential negative effects of our endeavours, thereby enabling us to protect ourselves and the biophysical world we inhabit. By including consideration of positive effects (benefits) we are able to weigh up and then choose what endeavours we wish to permit. The effects or impacts we are particularly concerned with are those on the natural and physical environment, and people and communities who live in and depend on that environment. Caldwell, one of the fathers of environmental management and impact assessment, described EIA as, among other things, a means to a larger end - the protection and improvement of the environmental quality of life - and a procedure to discover and evaluate the effects of activities (chiefly human) on the environment - natural and social (1989).
Social (or socio-economic) factors which are often impacted or affected (in addition to values, recreation, amenity, health and safety as specified in the proposed amendments to the definition of environment), include, among other things, material/economic circumstances, work related activities, political circumstances, psychological wellbeing, leisure activities, social relations, community activities and cohesion, and cultural activities. These kinds of effects are experienced at different "levels" in the structure of a society, such as households (including individuals, and families), communities, organisations and groups, and societal institutions and systems. Peoples' ability to move around and communicate may be frustrated, social or community cohesion may be weakened, general wellbeing lowered, or even participation in local social and political life reduced - none of which would be considered as an "effect" if the amendments proposed in the Bill are adopted, and yet these are of principal concern to Government in its statements of "strategic outcomes".
We are not as concerned as the MfE and the Minister that such provisions invite trade competition arguments and objections against potentially competing resource developments. Case law (e.g. Countdown Properties Limited v Ashburton District Council C17/96) provides guidance on the nature of the economic effects which can be considered, and future case law will no doubt take into account the Minister's concerns over the use of the Act to frustrate or block potential trade competition.
Definitions of "public notice" and "working days" (Clause 2)
Submission:
Explanation:
The proposed redefinition of working days fails to take into account the extreme difficulty of finding lawyers and legal advice around the Christmas - New Year period, and will unfairly disadvantage parties wishing to take part in resource consent processes affected by the proposed change.
Changes to consent categories (clauses 2 and 102)
Submission:
Explanation:
In general, councils use the non-complying category sparingly. Only 11% of resource consent applications in the last financial year were for non-complying activities. The category is typically used only where legitimate grounds exist to limit adverse environmental effects in especially sensitive areas. This can be seen as reflecting the effects-based philosophy of the RMA.
Commissioner Hearings (Clauses 10 and 15)
Submission:
Explanation:
NZAIA agrees that applicants for resource consents should have the right to choose the option of independent commissioner/s.
However while there may be merit in providing for commissioners on request where concerns exist regarding the ability of the council to make an unbiased decision, the ability of councils to charge submitters for the costs of requesting a hearing commissioner will create a significant barrier to parties wishing to make use of the new provisions. It also unfairly places the cost for ensuring a public good outcome and quality decision making, on a private individual. NZAIA endorses the Department of Conservation's proposal that would require the local authority to meet the costs of commissioner hearings thus providing an incentive to have well-trained councillors.
Establishing objectives, policies and rules (Clause 11)
Submission:
Explanation:
It is generally impractical to achieve a commensurate balancing of the costs and benefits of environmental objectives. The emphasis on cost-benefit analysis will detract from the purpose and principles of Part II of the Act and sustainable management.
Contestable Consent Processing (Clause 13)
Submission:
Explanation:
Placing the responsibility for decisions about what information is required and whether the application will be notified in the hands of a private consultant has serious implications for both public participation and the quality of environmental decision making. The commercial imperative to attract clients will place competing consultants under considerable pressure to reduce the quality of consent processing by requiring a minimum amount of information, limiting public participation and making client-driven recommendations.
MfE has stated that the objective of contestable consent processing is to improve the efficiency of consent processing. It is difficult, however, to see how this will be achieved. Inconsistencies between processors, poor quality processing and the significant costs involved in council monitoring of consent processes will not only reduce efficiency but will result in higher costs. The mounting costs forced on councils will inevitably be passed on to the applicant and/or to ratepayers.
The proposal presents an added risk in that some councils may fail to adequately monitor the performance of consent processors. Where this occurs, the costs to the environment could be considerable.
The competitive environment which the proposal envisages will also have a significant effect on the sharing of information and the promotion of good practise. Competing processors will be reluctant to share information that may threaten any perceived competitive advantage. The result will be to undermine efforts to improve practise and will create a major barrier to the success of the Act.
Duty to gather information, monitor and keep records (Clause 14)
Strengthening national environmental standards (Clauses 17 and 49)
Notification of Resource Consents (Clause 37)
Submission:
NZAIA opposes the proposed changes to the public notification provisions of the Act. Specifically, we oppose:
Explanation:
Amendments to the Act should not weaken, in any way, the central requirements for consultation and participation by the public. Consultation and participation is fundamental to the preparation of good quality policies and plans, and to the assessment of environmental effects. This has been a consistent lesson from international planning and impact assessment practise. (See discussion of the Fourth Schedule, below.)
Notification provides the community with an opportunity to contribute to decision-making, releases new information and helps to identify mitigation possibilities. Absence of notification can lead to poor-quality decisions. Evidence that is available shows opportunities for public participation in resource consent processes are already severely limited, with less than 5% of applications being publicly notified last year. Granting councils a greater discretion to limit notification is likely to see opportunities for public participation further eroded.
On this latter point, existing practise shows there are already strong grounds for concern about how councils are exercising their discretion to notify applications. The failure of councils to publicly notify applications has resulted in a growing number of applications to the High Court for judicial review and complaints to the Office of the Ombudsman from adversely affected parties. The Court of Appeal in Bayley v Manukau City Council found that the grant of resource consent applications under the RMA should be "public and participatory". The decision has been described by the Ombudsman as a "judgement of considerable importance to local government". The Court's ruling clearly shows a need for greater guidance and certainty for both resource consent applicants and local authorities. The proposed amendment serves only to cloud the issue of who should be notified.
The opportunities for public participation in resource consent processes should not be reduced. If anything, the available evidence points to a need to improve opportunities for public participation.
Weakening environmental impact assessment (Clauses 37 and 92)
Submission:
Explanation:
The proposed restrictions in clause 37 on the ability of consent processors to obtain information from consent applicants, have the potential to significantly weaken environmental impact assessment. Without adequate information to assess the impacts of a proposal, consent authorities will not be in a position to make an informed decision.
Additional issues are raised when the proposal is viewed in conjunction with the amendment to allow applications to be processed by private consent processors. Given their financial interest in retaining clients' business, private consent processors are likely to be reluctant to recommend against poor applications.
Latest statistics show that councils currently make requests for further information from applicants only on a minority of applications, and in these cases the requests are generally due to the poor quality of information provided. If an applicant believes a request for additional information is unwarranted, the Act currently provides a right of objection.
NZAIA submits that any weakening of the AEE provisions would run counter to the precautionary principle so widely accepted now. The RMA has provided a sound basis for environmental impact assessment in New Zealand to date, and this country is regarded internationally as a leader in the field. Our Association strongly supports an integrated approach to impact assessment, with full participation of interested and affected parties. We note that the Ministry has provided leadership and a number of important publications on the practise of environmental impact assessment under the Act, and our Association has embarked on developing guidelines for practise - consistent with the Act and taking into account international standards.
Direct Referral to the Environment Court (Clauses 39 and 52)
Submission:
Explanation:
Following our first submission, NZAIA has reconsidered this matter. It believes that direct referral should be an option for clear-cut cases where little controversy exists over the preferred outcome. However, large, complex, controversial applications are the very ones which most require an initial non-litigious forum in which to thrash out the differences in stakeholder perspectives etc, to save time and resources spent in the Environment Court.
Nevertheless, the proposal raises serious concerns regarding the ability of submitters to participate in the process. The higher costs and increased formality associated with Environment Court hearings mean the proposal could effectively exclude parties who may have taken part in a local and less formal process.
In addition, the lack of a prior council hearing will, in most instances, be likely to result in a much longer Environment Court hearing. Pre-hearing meetings and council hearings allow for identifying and refining issues, and clarifying the points in dispute prior to any appeal. With direct referral, matters which are currently resolved during these earlier stages of the process would have to be litigated in the more costly arena of the Court. This will add significantly to the workload of an already over-stretched Court and could result in lengthy delays.
The proposal causes some concern regarding public participation. For those submitters unable to take their concerns beyond a low-cost first hearing, it appears likely that the amendment will increase rather than reduce costs. This is of major concern given the issues that may be the subject of direct referral proceedings are likely to involve matters of wide public interest.
The ability of the Court to award costs against submitters is also an issue of major concern. The threat of costs will create an additional barrier to parties wishing to participate in direct referral proceedings.
Consideration of Consent Applications (Clause 41)
Submission:
Explanation:
The amendments to sections 104 and 105 significantly constrain the matters a council must consider when determining a resource consent application. The key change is the exemption of decisions on controlled and restricted discretionary activities from the sustainability provisions of Part II. Under the amendment, consent authorities will only be able to consider the issues specified in the plan when making decisions on controlled and restricted discretionary activities.
The Minister for the Environment has advanced the proposal on the basis that the reference to Part II in section 104 is not necessary as the Act requires plans to be prepared subject to Part II; therefore consent authorities need only refer to the matters specified in the plan. This approach has not only been rejected by the majority of submissions but also by the Environment Court. The Court has held on a number of occasions that provisions in plans are of secondary importance to the assessment of any proposal against the provisions of Part II..
Parliament has also recognised the primacy of Part II by amending section 104 in the Resource Management Amendment Act 1993 to reinforce its importance in decision making. By explicitly ruling out consideration of Part II, the Minister's amendment will enforce a rigid and inflexible adherence to the plan provisions at the expense of achieving the purpose of the Act. Sustainable management will only be achieved to the extent that a plan anticipates all important potential issues.
Representation at proceedings of the Environment Court (Clause 77)
Submission:
Explanation:
The proposed period of 30 days within which third parties must give notice of their intention to appear is inadequate. Decisions as to whether to appear in Environment Court proceedings are not taken lightly. Parties require adequate time to consider the merits of taking part and the costs and benefits of doing so. This is especially important in cases of direct referral.
A crucial factor in the decision to take part is the information available to potential participants. Notice of an appeal is generally limited to original submitters. As a result, interested parties who have not previously been advised of the matter may only learn about proceedings some time after an appeal application has been lodged.
Submission:
Explanation:
Further to our earlier specific concerns over the removal of socio-economic matters from the Fourth Schedule, the overall effect of the proposed amendment will be to send a message to developers that there is no need to consult with affected parties prior to an application being lodged.
There have been many concerns about the adequacy of AEEs. The latest Annual Survey of Local Authorities undertaken by MfE shows only 53% of councils have a structured process to check environmental effects.
The ability of consent processors to assess an application will be further undermined by the changes to the Fourth Schedule. The Fourth Schedule sets out the matters to be included in the Assessment of Environmental Effects (AEE), and is used widely as a guide to impact assessment with consultation. The AEE is a key document. It is the basis by which affected individuals can consider the scale and range of effects and make a decision whether or not to give their approval to a proposal. It is also an important foundation for a consent processor's decision to notify or not to notify. Early consultation is good practise and the current provisions of the Fourth Schedule recognise this.