ASSESSMENTS OF ENVIRONMENTAL EFFECTSEnvironment
This conference has fallen in the middle of the most substantial review of the Resource Management Act since its inception in 1991. The Government's purpose in amending the Act has been to cut unnecessary costs and time delays without, we have hastened to add, undermining the environmental principles which form its core. Some 750 submissions have been made on the amendments which the Government proposed late last year. These submissions have been analysed by the Ministry and we expect to make decisions early next month about which parts will be taken up and which will be modified or abandoned.
While the RMA enjoys overwhelming support for its focus on environmental protection, it has attracted numerous complaints. I need not recount them once more here. Needless to say, some are fair, some are unfair. Most people are willing to suffer a small amount of bureaucracy in the interests of protecting our environment, but they bristle when faced with costly and time-consuming intrusions where the benefits are not obvious.
I open with these remarks because Assessments of Environmental Effects go to the very heart of the RMA. I'm sure that this audience will be more than a little interested in the amendment bill and what that means for AEEs. You should know at the outset that I am a supporter of the AEE process. Good AEEs are critical to both good environmental outcomes and efficient process.
I thought you would be interested today to hear a little about the proposed legislative amendments and how they may impact upon the Assessment of Environmental Effects. Frankly, there have been a number of ill-considered comments regarding the amendments that I would like to respond to.
I also want to talk a little bit about the Ministry's Guidelines on Preparing and Auditing Assessments of Environment Effects which are being released at this conference. The proposed amendments There are two amendments which directly effect AEEs. The first, and perhaps most obvious is the definition of "environment" itself. The definition of environment fundamentally determines the scope of an AEE. The amendment to the definition is not designed to tamper with the basic environmental focus of the RMA, but rather to give greater clarity as to the scope of the environment and hence the effects that should be of concern.
The existing definition in the Act leads to a circularity in the way decision makers have to apply the Act. I have been saying for some time that I, for one, am not sure what the current definition actually means. The proposal I advanced removed consideration of social and economic matters, reverting to a more common place understanding of the term 'environment'.
As could be expected, I have received a wide array of views on this proposal. Submissions from local authorities were generally supportive, with councils keen to obtain clear guidance on the consideration of social and economic matters. Others, particularly those from the NGO community, sought to remove economic considerations, but argued that consideration of social values be retained. Business views were somewhat split. Clearly some sought to retain in the armoury the ability to object on economic grounds. NGOs and business interests were unlikely allies in their opposition to the removal of economic and social matters. This merely confirmed to me that social and economic matters muddy the waters to such a degree that they indeed should be removed. I continue to support a clear bio-physical focus to the definition and will accept the Ministry's advice that we should proceed with the Amendment as proposed.
The other pertinent amendment relates to the future of the Fourth Schedule to the Act and section 88. As you all know, the Fourth Schedule currently deals with the scope and content of AEE documents. The Fourth Schedule sets out what should be included in and considered when preparing an assessment of environmental effects as a part of a resource consent application. Section 88 of the Act requires such an assessment to accompany applications for resource consent. Two possible amendments are currently being investigated to the Fourth Schedule and consequently to section 88 of the RMA.
The first is to repeal the Fourth Schedule and amend section 88 to include references to key elements of the Fourth Schedule that are not already specified in section 88. This includes such matters as consultation, consideration of alternatives and monitoring. This proposal was designed to remove confusion, remove duplication with section 88 (they use different words to say the same thing) and to delete references to matters which are considered inappropriate considerations (eg; socio economic effects). The alternative amendment simply proposes to remove the reference to socio - economic matters and to clarify that the AEE document should detail consultation undertaken if consultation has occurred.
Contrary to what a number of submitters seem to think, even if the Government chose to delete the Fourth Schedule, it is certainly not intending to repeal the requirement to provide an AEE. As stated earlier, AEEs are, and will remain fundamental to the scheme of the Act. The AEE document is the basis by which a consent is given or refused and by which a number of processing decisions are made along the way (for example, notification and affected party approval). The amendments that relate directly to the AEE are simply to tidy up the regulatory framework. Not surprisingly submissions on the these amendments can be broadly divided into two camps. Those suggesting that both section 88 and the Fourth Schedule should be retained (and the Fourth Schedule made more comprehensive). And those arguing that the Fourth Schedule is unhelpful, prescriptive and excessive and should be removed.
Like the submissions on most of the amendments there are undoubtedly valid points on both sides. However, there are few policy issues at stake here. For the most part, what we are talking about is deciding what is the most rational and helpful way to set out the requirements for AEEs. I have to say that I haven't found the arguments for retaining the status quo terribly compelling. I fail to be convinced by the argument that removing the fourth schedule and consolidating the requirements for AEEs into section 88 would exacerbate the existing problem of councils accepting inadequate AEEs. Having said that, I do accept that a large number of submitters maintained that the fourth schedule provided a basis for deciding what was adequate with some degree of consistency. Frankly it is not an issue that worries me unduly one way or the other.
For its part the Ministry has recommended to me not to proceed with the proposal to repeal the fourth schedule. The more important policy issue relates to the removal of socio-economic effects from the matters that must be considered when preparing AEEs. Logic dictates that the contents of an AEE should be consistent with the definition of environment. On this issue the Ministry recommends that the reference to socio-economic effects currently in the Fourth Schedule be deleted. I agree.
Another point of clarification is proposed. No section of the Act currently requires applicants to consult affected parties before lodging applications. While I don't think there's too much debate about the value of such consultation, the Act itself leaves that as a matter for applicants to consider. The Fourth Schedule, however, contains an ambiguous reference to evidence of consultation (clause 1 (h)). When read in the context of the Act the clause asks for evidence of consultation, when such consultation is undertaken. It does not constitute a requirement for applicants to consult. The Ministry recommends, and I concur, that this matter should be clarified by adding the words "if any" after the words "an identification of the ....consultation undertaken".
Of course retaining the schedule, straightening out inconsistencies and clarifying ambiguous provisions will not automatically improve the quality and suitability of AEEs. If there is one thing we have learnt about the Resource Management Act it is that legislative changes can take you only so far. The law, as a framework must be well constructed. However, even a well crafted framework will buckle and strain under the pressure of impractical use. All those using the Act must be encouraged, cajoled and, if necessary, embarrassed into good practice.
Irrespective of the outcome of amendments to the Fourth Schedule. The lack of quality in AEEs will remain as an issue that needs to be addressed. Anecdotal evidence to date indicates that assessments of environmental effect are, at present, being both processed and audited badly. As an example, in last year's Annual Survey (96/97 Financial Year) 39% of all resource consent applications prompted written requests for further information. This is an increase on the previous year, when the figure was 22%. One Council requested further information on well over half of its applications, whereas some other Councils didn't request further information on any applications.
While these broad figures do mask a great deal of variation and complexity, they do underline the fact that this is one of the more troublesome aspects of the Act. It seems that AEE documents are being badly prepared. It also seems that too many councils are receiving deficient AEE documents and then repeatedly requesting information, or requesting excessive information which is not specifically targeted to the activity for which resource consent is required. Much of this practice can be explained by understanding the assumptions which stakeholders bring to the application making and determination process. As part of the guideline development work (which I will refer to in more detail shortly) applicants and councils were asked about the assumptions they have developed through making or processing applications. The results make for truly fascinating reading.
Apparently, based on their experience, applicants believe that: their efforts will be doubted throughout processing because they are making an application and are thus "breaking the rules"; because the planner dealt with over the counter is not the decision maker, their advice cannot be relied upon and may be inconsistent with the views and requirements of the processing planner; the council will take a lot longer than 20 working days to process the application; the Council will duplicate the AEE in any event so that there is little point in preparing a comprehensive AEE only to have to pay for the Council's AEE as well; and in some applications, especially those bringing major economic benefit to the district, the political process is more important than the RMA process.
With these pre-conceptions it is small wonder that the following poor practices are prevalent: applicants are encouraged to lodge applications regardless of the level of AEE which in turn puts the onus back on the Council to determine the level of acceptability or alternatively complete the application requirements for the applicant; the applicants' actions are motivated as much by ad hoc politics as by sound resource management practice; the council is blamed for the deficiencies in their work; and costs escalate.
Councils on the other hand believe that:
- the AEE has been prepared with an inherent bias;
- negative effects will have been omitted;
- negative consultation is not recorded;
- the AEE will not reflect the issues identified within the community; and
- professional advice, because it is obtained by the applicant, may be inherently biased.
This in turn leads to poor practice:
- councils may accept applications for processing which are information deficient and are then compromised into preparing or - reassessing an application rather than auditing it;
- multiple handing of applications occurs that can lead to significant additional costs and time delays;
applicants who have a proven track record are favoured;
- there is little incentive for those that prepare applications to have done their homework before approaching the Council;
- the Council is required to invest its more experienced staff in processing rather than other tasks;
- complex reporting formats and a lack of appropriate delegation have developed;
- the confidence of submitters in the Council's neutrality is undermined.
This raises more issues than I can comment on here but let me make just a few obvious comments. As with most other areas of the Act, our biggest gains are likely to come from practice improvements. The largest steps will be made only when we increase competence and the use of best practice in both the preparation and auditing of AEEs. Clearly, a consent authority cannot swiftly and effectively audit an inadequate AEE.
However, the quality of AEEs is unlikely to improve unless a consent processor demands that this happens. When it does, there must be good, practical guidance about what is required by an AEE and the consent processor must be in a position to process the application and its accompanying AEE document accurately and efficiently. The results of the survey also indicates that a degree of open mindedness and trust on both sides might also be of some benefit!
The Fourth Schedule doesn't, and probably can't, provide detailed guidance to applicants. Plans which show clearly and precisely what information is required would be of very real benefit. Unfortunately, to date only some local authorities have utilised the ability of plans to set out information requirements for resource consent applications. Few have provided targeted guidance to applicants about the extent and scale of information that may be necessary to include in assessments of effects on the environment.
People involved in plan preparation should take greater advantage of this opportunity. Setting out information requirements in plans can ensure that they are targeted and focussed - and inherently more useful than a generic list. The plan should be used to spell out matters which are of concern to the community. It should contain comprehensive assessments of relevant information requirements for the various resource consents required by local authorities. Such provisions should be clear and consistent and linked to relevant policies and/or assessment criteria and rules.
The first generation of RMA plans have often not contained such guidance. Perhaps part of the reason for this is the failure of some councils to undertake an appropriate cost benefit analysis of plan provisions, pursuant to section 32 of the Act. Many such Councils would find it difficult to justify exactly why a rule is included in a plan (that is, exactly what environmental outcome is sought). In such a case it would clearly be difficult to identify what effects non compliance with the rule may generate. It is difficult to identify what information you should require of an applicant when you're uncertain about what effects you are trying to control.
The plan is critical to decision making and therefore to promoting the sustainable management of natural and physical resources. While the RMA has already suffered a long lead-in time, some solace can be taken in the likelihood that the theory of this generation of plans will be the practice of the next. Hopefully, therefore, councils will monitor the effectiveness of the current crop, and use the feedback to include or improve information requirements outlined in the second generation of plans, and to ensure the appropriateness of the rules.
I am quite convinced that best practice will not be reached until steps are taken to ensure performance is properly measured and regular and public reviews of practice take place.
Central government has also been slow in its provision of guidelines to assist councils, staff, applicants, consultants et al in determining the type of information required, how much is needed and how it should be evaluated. I am, therefore, pleased to say today that the Ministry for the Environment's projects to improve practice by training, guidelines and a bit of 'peer comparison' are well advanced. Today is an opportunity to launch two practice guides specifically developed in the area of AEE.
The first practice guide is entitled "A Guide to Preparing a Basic AEE". This guide explains the AEE process to persons who don't have a detailed understanding of the resource management process. It outlines why resource consents are needed, what an AEE is, how to go about preparing and drafting an AEE and gives some tips on how to keep an application's processing costs to a minimum.
The second practice guide is entitled "Auditing Assessments Of Environmental Effects". This guide focuses on regional and district council AEE audit practices, with the aim of helping new planning staff and others involved in the resource consent process (for example, engineers, arborists and iwi liaison officers). It also contains reminders for experienced staff to assist them in establishing and reviewing procedures, and includes examples of case law and good practice.
The guide discusses councils' AEE audit functions and what they seek to achieve, elements of good practice in the audit process (from the pre-application to the decision-making phases of a resource consent) and offers suggestions on how to feed back into the community lessons learned during the audit process.
The second guide is going to be the subject of a seminar series, run in conjunction with the New Zealand Planning Institute. The target audience for the seminar series is council planning staff, and also consultants who may wish to become involved in the external processing of consents (especially if contestable consent processing is adopted).
At this stage, it is not anticipated to hold specific training on the preparation of AEEs. While the identified problems are on the part of both the applicants and processors, it is hoped that consent authorities will promote the first guide to applicants and that practice of both parties will be improved over time.
The theory about systems is that once they are up and running they should be easy to use. While we need to concentrate on the RMA being useable (correcting the law), we also need to concentrate on the users being proficient at using it (correcting the practice). I would like to thank the Centre for Advanced Engineering for organising this conference, which I'm sure will highlight many knotty problems and, I hope, as many useful solutions.
In all this work, however, it is important not to lose sight of the purpose of the RMA- sustainable management. The real reason we need to get the AEE process right is that it forms the key document for participating in the RMA process and provides the basis for controlling adverse effects. Without AEEs we cannot work towards better environmental results.