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2. The Theory: What you Need to Know Before Getting Started

What is an AEE?

You have confirmed with the council that you need to make a resource consent application and you know the type of consent(s) you need. You now need to prepare the resource consent application. A critical part of this is the preparation of the assessment of environmental effects (AEE). You need an AEE to get a decision from the council on whether you can do what you want to do.

An AEE should be seen as part of the process of shaping your proposal, or what you want to do, rather than a task to do once you have all your plans prepared. An AEE helps you identify the effects of your activity early on in the process and, if necessary, allows you to incorporate measures to reduce any adverse effects. It identifies who you should consult and, if required, from whom you should obtain written approval. It is used as the basis for the council's decision on whether to notify and grant an application, and, if granted, whether to impose any conditions to address any outstanding effects.

The final outcome of the AEE process is an accurate and objective statement about the effects of your proposal on the environment. This statement will have taken into account whether the proposal has avoided, mitigated or remedied any adverse effects on the environment and people.

What needs to be included in an AEE?

Your AEE should include the following (unless the council's plan states otherwise), as set out in section 88 and the Fourth Schedule of the RMA:

  1. A description of your proposed activity.
  2. An assessment of the actual and potential effects on the environment of your activity.
  3. Where the above effects are likely to be significant, a description of available alternatives.
  4. A discussion of the risk to the environment from hazardous substances and installations.
  5. For contaminants, an assessment of the nature of the discharge and sensitivity of the receiving environment to the adverse effects and any possible alternative methods of discharge, including discharge into any other receiving environment.
  6. A description of how the adverse effects may be avoided, remedied or mitigated.
  7. Identification of the persons affected by the proposal, the consultation undertaken, if any, and any response to the views of any person consulted.
  8. Where an effect needs to be controlled, a discussion of how it can be controlled and whether it needs to be monitored. Where appropriate, a description of how this will be done and by whom.

While an AEE is mandatory, the Fourth Schedule should be used as a guide rather than a blueprint for its preparation. The council's plan is also likely to list the information you need to supply.

What is an effect on the environment?

Under the RMA, the definitions of 'effect' and 'environment' are very broad. This means you need to look very closely at your proposal. Any effects - whether positive or negative, long or short-term, or when combined with each other - need to be identified. It is unlikely an activity will have no adverse effects. If the council requires a resource consent for your activity, it is because it anticipates the activity may have some effects needing to be controlled. Appendix 1 contains the RMA definition of these terms.

How do I identify effects?

Councils may have their own checklist to help you identify effects. This can be a useful guide, but it is important not to see this as ticking boxes or filling in blank spaces. It can be helpful as a starting point to group headings under types of effects. For example, what are the effects on the following:

  • land, water, and flora and fauna
  • people
  • infrastructure
  • traffic and parking
  • cumulative effects?

Note: 'Cumulative effects' are referred to in the definition of 'effect' in section 3 of the RMA as effects that can build up over time or occur in combination with other effects.

How do I rank or quantify an effect?

Once you have identified the effects of your proposal (including any short-term or temporary effects), you need to make an assessment of the magnitude of each effect. A simple scaled rating could be as follows:

  1. No effect
  2. Minor effect
  3. Major or significant effect
  4. Critical effect.

At this point, you may then want to consider whether you will either modify the proposal or introduce measures to reduce the effects. This is what is often referred to as avoiding, remedying or mitigating adverse effects.

A completed example showing the effects that have been identified and the ranking or magnitude of these effects is shown in Table 1 on page 25.

What is meant by avoid, remedy or mitigate?

'Avoid', 'remedy' and 'mitigate' are terms used in the RMA. While they are not defined in the RMA, they are mechanisms you need to consider when you have identified that your proposal may generate adverse effects. Adverse effects must be avoided, remedied or mitigated irrespective of the benefits of your proposal.

Each is a different way of addressing an adverse effect so it is acceptable. For example, a quarry has an adverse visual effect. You would 'avoid' the effect if you did not quarry or if the quarry was located where it couldn't be seen. You would 'remedy' the effect if you filled the hole in. You would 'mitigate' the effect if you planted trees around the hole. All three actions may address the adverse effects, but in the long term only one or two are likely to be acceptable to the community. The AEE process works out whether an effect needs to be addressed and the best way of doing this.

What's minor and what's not?

A consideration of what is minor is important as this will determine the path your application will take. If the plan does not define how the council interprets 'minor' you could use this guidance from the case of Bethwaite v. Christchurch City Council (CO85/93)19:

"The word minor is a comparative word meaning lesser or comparatively small in size or importance. Minor is less than major but could be more than simply minute or slight. Adverse effects could also be made minor by means of conditions - although the necessity to impose stringent conditions to mitigate off-site effects may indicate that the suitability of the site is marginal and the effect on the environment may be more than minor."

The council will make the final decision on whether the proposal is minor for the purpose of determining if it should be publicly notified, but your AEE will be used as a factor in the council making this decision.

How much detail should I include?

The comprehensiveness of your AEE should be proportional to the potential effects of your proposed activity. It does not need to be exhaustive, but should provide enough information for the council to evaluate the potential effects. You should be able to work out how much effort is required by looking at the issues identified in the council's plan and the activity's status in the plan (see Steps 6 and 7 in Section 3 of this guide). Council staff will be able to provide guidance, but remember they cannot prepare the AEE for you, as this is your responsibility. Some councils prepare checklists to help you prepare your AEE. Use these as a starting point, rather than just filling in the blanks.

How can the plan be used to identify potential effects?

The matters that the council will assess will depend on what type of consent is required. This should be your starting point. The plan will state the significant resource management issues of concern and may contain assessment criteria. You can use these to identify the types of effects you may need to address. These criteria will not be exhaustive and will need to be discussed in relation to your proposal. Most plans will contain explanations for rules or activities. These can often be a good guide for determining the types of effects that may be generated. If your proposal cannot comply with a rule, you can use the plan's objectives and policies to help identify the purpose of the rule, and how your proposal fits in. Step 4 in Section 3 of this document shows how you can use the plan in this way.

Some councils may not have an 'operative plan' but instead could have a 'proposed plan' (the new one the council wants to introduce). The importance given to each plan will depend on a number of factors, but mainly how far the proposed plan has progressed towards being made operative. This will also apply where a council has a 'variation' or 'plan change' that relates to your proposal. You should discuss this with the council.

How can the plan be used to identify potentially adversely affected parties?

The plan will give you a guide to the likely effects your activity may generate (but remember, every proposal is different, and it may not necessarily generate the types of effects that are indicated in the plan). Once you have established the potential effects, you are likely to have a good idea of who, if anyone, may be adversely affected by your activity. Some plans state that certain activities will be non-notified and do not require any approval from affected parties. This is mostly likely to be the case with controlled or restricted discretionary activities.

What is the permitted baseline?

The permitted baseline is a term developed through case law and refers to what is permitted to occur on the land as of right or without resource consent. [The development of the permitted baseline test can be traced back to a comment made by the Court of Appeal in Bayley v Manukau City Council [1999] 1 NZLR 658 where the Court suggested it is not sufficient for a consent authority to assess a proposal against the environment as it exists, but that it must go further and assess the proposal against the environment "as it would exist if the land were used in a manner permitted as of right by the plan" (Chapman Tripp, 27 September 2001).] Any consideration of effects is therefore in comparison to what could occur on the land as a permitted activity. This requires a good understanding of the various rules in the district or regional plan. In some instances, it is appropriate to only consider those effects that are generated over and above those which are permitted, or in other words, the permitted baseline. This is likely to be the case with simpler applications where the activity is permitted but there are only one or two minor infringements. The permitted baseline is not a mandatory test, but it is a discretion that the council may exercise. For this reason, it should not be relied on, except in very clear cases.