Department of Conservation - concession processing review

A "concession" is a statutory authorisation to undertake commercial activities on public conservation land such as national parks or reserves.  Al Morrison, the Director-General of Conservation, has released the Concessions Procession Review - Final Report.  This Final Report is the product of a review looking into the efficiency of the Department's concession statutory framework and internal processes.  The conclusion is that the Department "can do better, and in some cases a whole lot better."

The Final Report recommends a range of changes, some of which will require amendments to conservation legislation.  The key recommendations include:

• Imposition of timeframes on processing of applications (there are currently no timeframes in the legislation)
• Changes to the notification of applications, including a movement away from notifying an "intention to grant"
• Improved opportunity for applicant participation in hearings
• Reconsiderations of applications being undertaken by an independent authority
• Simplified and standardised application and reporting forms
• Improved mechanisms for allocation of concession opportunities.

There are some useful proposals in the Final Report for improving the concession process, and work is well underway on the non-statutory changes.

Ministerial intervention in environmental law processes

The last few months have seen the government increase its emphasis on efficiency of RMA processes, to rectify perceived deficiencies or impediments.  In particular, new powers are being created for Ministers to intervene in those processes in respect of specific issues.  An example of this is the intervention by the government in relation to the Environment Canterbury legislation, which we discussed in an earlier legal update.  We highlight below 3 other examples of new ministerial powers of intervention. 

Aquaculture reform

In April the government outlined its plans for aquaculture reform.  The objective of the reform is to reduce costs, delays and uncertainty, thereby promoting investment in aquaculture, and to enable integrated decision-making that balances aquaculture with other marine interests.

There are many interesting aspects of the proposed regime, in particular a more active role for central government, which includes:

• More effective use of the current "call in" powers by broadening the range of factors to which the Minister of Conservation may have regard
• Ability of the Minister of Fisheries and Aquaculture to promote aquaculture development by amending Regional Coastal Plans in "exceptional circumstances" where there is significant regional or national interest
• Requiring a 20 year minimum term for aquaculture consents and streamlining the reconsenting process (for example limiting assessments of effects to those not considered for the original consent).

In terms of the current aquaculture framework there are a number of significant changes proposed. These include the removal of the requirement for aquaculture to be within aquaculture management areas, and alignment of the commercial fisheries "undue adverse effects test" with the resource consent process.  A Bill is being drafted and is expected to be introduced shortly.

Electricity Industry Bill

This Bill is focused on reform of the electricity sector.  The Bill was reported back to the house on 9 June 2010.  As many readers will be aware this reform provides for asset transfers between Meridian and Genesis, in particular power stations on the Waitaki River.  The Bill as reported back includes a new clause 124C which allows the Minister of Energy and Resources, in consultation with the Minister for the Environment, to change by Order in Council conditions of the Waitaki Power Scheme consents if it is "impracticable" for the generators to meet those conditions.  This is proposed to "provide for a timely and effective resolution in this situation" to avoid the section 127 process to change consent conditions contained in the RMA.  Interestingly, there is no right of appeal in respect of this new process but judicial review is available (clause 124G of the Bill). 

Rugby World Cup (Empowering) Bill

This Bill was introduced on 10 June 2010 and provides for "Rugby World Cup 2011 related activities and facilities to be considered expeditiously".  This reflects the government's concerns that existing RMA processes are too slow to allow for unforeseen consents necessary for staging the Rugby World Cup, and also makes special provisions for the sale of liquor.  The objectives of the Bill include accommodating urgent approvals for activities and facilities where the need has arisen in unforeseen circumstances, and where applications could not be granted in the time available under present processes.

To achieve the objectives the Bill:

• Establishes the Rugby World Cup Authority (Authority) which considers and decides applications for temporary approvals or change to conditions, and can recommend to the Minister of the Rugby World Cup (Minister) in relation to "Rugby World Cup permitted activities", and can make interim injunctive orders to enable expeditious enforcement
• Provides for the Minister to grant urgent approvals applying during the Rugby World Cup and regulate (by Order in Council) Rugby World Cup permitted activities on the recommendation of the Authority.

Any approval must relate to a matter "reasonably necessary" for the purposes of the Rugby World Cup 2011 (or a test event).  The applicant must show that measures have been undertaken to obtain the necessary consent, but that it is unlikely that approval could be obtained in time for the event.  Applications are made to the Authority.  The Bill requires local authorities to provide administrative support to the Authority as required.

The timeframes are very short - for example 10 days for submissions (if the decision is notified and you are an affected person), a hearing within 10 days after the close of submissions, a decision 10 working days after the close of the hearing, and any appeal (on a question of law only) within 5 working days of the decision.  Approvals granted are for limited duration and do not create the right to continue the activity or land use after the expiry (or provide for existing use rights).

This article is provided for general information purposes only and not as legal advice.  If you would like more information please contact a member of the Buddle Findlay environment and resource management team - Paul Beverley, Patrick Mulligan, Kerry Smith, Rachel Dunningham, David Allen, David Randal, Andrew Braggins, Vanessa Evitt or Cedric Carranceja.