Part C - Improving consent decision making contd.
Improving non-local (call-in) consent decision making
Background
107. The RMA enables central government (via the Minister for the Environment) to 'call in' applications of national significance. A board of inquiry processes such applications. The Minister for the Environment then makes the decision as the consent authority in place of the council. The decision of the Minister can still be appealed to the Environment Court and heard a fresh (de novo).
What is the problem?
108. The RMA promotes devolved environmental decision making to local authorities. However, there are situations where the devolved model is not optimal:
- insufficient capacity, preparedness and information by local authorities to make decisions
- community of interest is larger than the local level or there will be significant effects beyond the local authority's boundary
- costs of the project faced at the local level but the benefits are national
- some over-riding need to avoid inconsistency unrelated to the need to recognise different environments or communities
- values or effects are the same everywhere in the country meaning that individual devolved decisions are an unnecessary cost.
109.Ministerial call-in is presently the only option within the RMA for changing the decision-making model at the project (consent) level. Call-in does not overcome the issues outlined above - it simply changes the first hearing decision maker and leaves decisions appealable to the Environment Court.
110. There are also difficulties with the call-in process itself:
- The call-in process only applies to resource consents. Most projects involve plan changes or notices of requirement rather than, or in conjunction with, resource consents.
- Applications are either called-in or not, there is no middle ground option that might better address the particular issues at hand.
- The process used to decide whether or not local decision-making is appropriate is unclear.
- The Minister for the Environment must make the final decision and is left with little discretion to alter the recommendation of the board of inquiry.
- Clear statements of the government's interest in projects of national significance can only be made in call-in (with Minister's reasons for call-in being considered alongside other relevant matters such as district/regional plan provisions) or through a submission that must state support or opposition to the proposal.
What is the outcome sought?
111. Modify the existing call-in provisions to provide a greater range of more flexible and supportive tools to better meet the needs of applicants, submitters, local authorities and government.
What is proposed?
112. The following proposal was specifically put to me by and is supported by Local Government New Zealand.
113. The proposal will modify the existing call-in process and in doing so provide a menu to better balance national and local interests and improve administrative efficiency.
114. It is proposed to allow a specific ability in the Act for applicants or local government to request that the Minister for the Environment make an assessment as to the government's involvement in the decision making. The Minister for the Environment could also decide to instigate the process without a request. In practice the assessment undertaken by the Minister for the Environment will involve representations from the relevant local authorities and will likely follow a cabinet process.
115. The outcome of the assessment would instigate a decision that:
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the local (standard) process is appropriate (ie. as has been identified above)
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the local (standard) process should be undertaken with assistance (from central government)
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the decision-making process should include national representation (ie. change the notion of Ministerial call-in to one of non-local decision making).
116. If the middle road were chosen, of a local (standard) process with assistance, the government would be able to:
- provide a government funded independent project coordinator to provide extra capacity
- direct that applications be heard jointly where more than one local authority is involved in a project (as may be the case with a network utility)
- appoint a person on the locally led hearing panel (like the Minister of Conservation can appoint a person to committee hearing a restricted coastal activity (s117(5) of the Act))
- issue a government submission as an input into the decision-making process alongside other public submissions and the application (see section above on central government advocacy for detail).
117. If the government decides, after consultation and assessment, that an application should be heard by an entity other than a local authority the Minister for Environment would instigate the modified call-in procedures. The Minister would then establish a board of inquiry as occurs in the current call-in mechanism. The board of inquiry would have all the powers described above for local authority consent hearing processes. Members of this board of inquiry would be called on from an established standing body of commissioners. The members of the board of inquiry would have a combined skill set specified in the statute.
118. The decision of the board of inquiry would be final, with appeals only on points of law (to the High Court). Decisions on designations will not be referred to requiring authorities for final decision as is currently the case.
119. It is proposed that the board of inquiry be directed to issue an interim decision, so parties (applicants, the Minister and submitters) involved can comment before a final decision is issued. This will avoid appeals on minor matters and allow for modifications of proposals to occur in a more informal setting.
120. Section 140 (the call-in section) will also be amended so that it applies to notices of requirement for designations and heritage orders, and private plan changes, as well as resource consents. Another amendment is proposed to include cross-district issues as well as cross-regional issues in the call-in criteria (s140(2)(d)).
What are the risks, benefits and costs?
121. The proposal addresses capability issues for local decision makers (and associated processes), while reflecting local values and maintaining opportunities for local participation. This will come at a cost to government for resourcing support for the process.
122. The proposal is favoured by local government (as expressed by Local Government New Zealand) and many businesses, and recognises that in limited circumstances some enhancement and integration of local decision making processes is warranted.
123. Appealing the decision of the board of inquiry on points of law only has varying support (most support comes from business and local government) and moves from a legal justice principle of two hearings on the merits of a case. It will also limit mediated settlements. The proposal is not supported by the Department of Conservation, its view is that an interim decision will reduce appeals and national policy issues should be debated, if necessary, at the Environment Court.
124. A move to appeals on points of law only is justifiable if the first hearing is robust and contains a thorough testing of evidence (eg. chaired by someone with judicial skills). To achieve this, skill requirements would be specified in the statute and the membership of the board of inquiry might include current or past Environment Court judges or commissioners, as well as representatives of the relevant local authority.
Last updated: 6 May 2008
