A standard can force a council to allow an activity with no conditions and to require no resource consent. Could be used for infrastructure projects, e.g. power lines. Has removed power to set conditions for an allowed activity in the plan.
A standard overrides a stricter standard in the plan unless it expressly provides that a plan can be more strict.
National Policy Statements (23-27)
Minister can issue a NPS without using the Board of Enquiry process in the Act – can use any process she likes as long as there is opportunity for public comment and a report to the Minister on the comments. The Ministry could do this. No requirements for hearings. Coastal policy statement can be amended with a similar truncated process.
Non-local decision making – national significance (54 inserts 139 B,C,D)
Call in process may now be triggered by a request from the applicant or the consent authority. Reduces process to one hearing, non-local, no appeal to Environment Court. (57)
Instead of calling in Minister may appoint a commissioner to sit with local authority, or a project co-ordinator to advise.
Minister’s new powers (various provisions but mainly clause 6 and 7 of the Bill)
The Minister for the Environment has unprecedented powers to interfere with the planning process of local authorities, mainly through plans. Effectively she can direct a local authority to do anything in regard to any of their functions under the Act. This could be positive in
- directing the preparation of a regional plan where needed,
- but also could be used to strongly influence the national interest in local decision making.
Powers (summarised)
- request any information from a council
- direct any changes to regional and local plans
- can direct the preparation of plans
- call in powers
Environment Court – consent appeals (cl 74)
No new evidence accepted except
By leave of court
By new s274 party
In reply to above
De novo hearing only if
Evidence insufficiently tested
Natural justice
Important new evidence
+ catch all clause
Council/commissioner hearings do not have cross examination but commissioners are to be trained, including in testing evidence. This raises the likelihood of every Environment Court hearing being preceded by long legal arguments about whether certain evidence was adequately tested in the first hearing, or whether it should now be subject to cross examination. Will be difficult, as first hearings are not transcribed. I may have missed something here but it sounds like a recipe for protracted and expensive legal wrangles.
EC – policies and plans (75)
- can no longer direct changes
- but can refer back for further consideration
EC – declarations on notification (82(3)
Minister has finally reinstated power of EC to make declarations on whether notification decisions were made correctly. One has to turn to cl2 to find that this provision does not come into force with the rest of the Bill, but only when (if ever) and Order in Council brings it into force. Moreover, there is no clause giving power of redress as there was in the 1999 amendment Bill introduced by Upton. These provisions were agreed by the 2000 select committee and reported back but removed by the minister in 2003 before the Bill was passed.
Iwi Maori issues
New section 36A clarifies that applicants for consents and local authorities have no duty to consult about applications. The only exception is to consult where there is no operative plan, or if the existing plan was not consulted on. This implies that councils have sufficient understanding and regard for Maori issues and these have been incorporated in policy statements and plans. It seems to go against some best practice that has developed over the years in terms of developing relationships with iwi and hapu.
New clause to be added to the First Schedule similar to consultation requirements in Local Government Act.
Joint Management
Enables shared management with any defined public authority (including iwi authorities), therefore doesn’t recognise the special status of Maori to be involved in resource management planning. The local council is able to effectively ‘veto’ any decision it sees fit which does not encourage consensus decision-making or a positive working relationship. This is not joint management. There is no discussion of how this arrangement will be resourced. Agreements are uncertain as they can be terminated quite easily with 20 days notice. I can’t see this as a way to encourage iwi participation, or in terms of developing good long-term relationships. This echoes of section 33 powers where no actual transfers have taken place.
Pre-hearings
Council/commissioners may require attendance, evidence and to strike out vexatious or frivolous submissions. Changes have been made to the First Schedule restricting further submissions on plans and policy statements, and restricting the hearing process.
Additional information (36)
Changes requirements for additional information to requests. Essentially the council can make a request, but the applicant doesn’t have to supply anything further. The decision can be made on the information provided only. The council must state its reasons for requiring further information. Designed to avoid councils using requests to stall time but may lead to councils making decisions on poor information, not knowing the significance of what they don’t know. This provision was in the 1999 Bill; was carefully considered by the select committee and rejected.
Notification
Further restrictions on applications and serving of notice for restricted discretionary and controlled activities. Clause 39 withdraws the requirement to serve notice on affected parties of non-notified controlled or restricted discretionary application consent if provided for in the plan (or proposed plan), despite whether effects are minor or more than minor.
Content of plans
Intent seems to be to reduce the complexity, which may be useful. Issue is where they have set out criteria to guide natural resource allocation plans
Where there is no allocation plan existing consent holders who re-apply will have preference. The criteria is
- Value of business investment
- Number of enforcement orders and convictions (+ seriousness of orders and how recent they were).
- The national interest (undefined in Bill)
Favours large scale projects such as Aqua and does not consider abatement notices that can be more accessible by the community (rather than Environment Court Enforcement Orders)
