Align the notified concessions process

Align the notified concessions process under the Conservation Act 1987 with notified resource consents under theRMA

Problem

222. Approximately 5% of concession applications received by DOC also require resource consents. The total is highly variable from year to year, but amounts to roughly 25 applications per annum. While, in general, requiring two approvals does not appear problematic, targeted consultation by DOC with applicants, iwi, and representatives from central and local government has indicated that there may be issues related to the lack of alignment between the RMA consent process and the concessionsprocess.

223. Key concerns include having to apply to two different organisations for the same proposal, providing similar information to two different organisations, dealing with differences in notification timing and other process timeframes, and the need for two hearing processes. This can lead to increased costs, delays, and duplication for large-scale or complex applications that require notification of both concession andconsent.

Proposal

224. Currently, the concession and consent processes differ in a number of ways. Examples are provided in the tablebelow.

ConservationAct

RMA

Criteria fornotification

All concession leases, and licences over 10 years must be notified, and any concession may be notified if the effects of it make that stepappropriate

Plan provisions under RMA are both highly relevant and highly variable

When the decision to notify ismade

No statutory requirement for a concessionapplication

Within 10 working days of application

The possible scope of notification

National notification unless the activity is only of local interest

Notification if the activity will have or is likely to adverse effects on the environment that are more than minor, the applicant request it, or a rule or national environmental standard requiresit

What isnotified

A proposed decision (if there is an intention togrant)

The consentapplication

Submission time period

40days

20days

225. Greater alignment of the concession and resource consent processes would provide for more synchronisation at key stages such as lodgement, notification, and submissions. The proposed changes to the Conservation Act are outlinedbelow.

Require public notification for all notified concessionapplications

226. An application under the Conservation Act is not notified until DOC has assessed, considered and come to a preliminary decision to grant the concession. The application itself, and the report with the decision-maker’s preliminary decision, is notified with it. Therefore, if the preliminary decision is to decline, then notification is notrequired.

227. An amendment to the Conservation Act would align it with the notification provisions in the RMA. This would enable the public notification of all notifiable concession applications, not just those that the Minister ‘intends to grant’. This would remove the preliminary decision stage of the concession application process, and the only decision would be after the public submissions have been considered. The advantage of such a change would be in ensuring that the Minister was fully informed of the concerns ofstakeholders.

228. This change could lead to slightly longer timeframes before final decisions on applications. However, this risk is somewhat mitigated by the proposal to shorten the public submission period (outlinedbelow).

Shorten the public submission period for concessionapplications

229. The public submission period for a concession application is 40 working days, compared with 20 working days for resource consents under theRMA.

230. Given that 20 working days is considered acceptable for the resource consent submission period, and that the nature and scale of information required for resource consent and concession submissions on the same activity are similar, we recommend amending the Conservation Act to provide for a 20 working day period for submissions on concession applications. This would bring this provision in line with the RMA and reduce costs and delays.

Require the receipt of a compliant concession application before it isaccepted

231. Under the RMA an application is judged as complete before it is accepted and processing begins. There is uncertainty in the Conservation Act as to when an application is “complete” and when the processingstarts.

232. An amendment to the Conservation Act would require a concession application to be judged compliant before the application is accepted and processing starts. This would require an assessment of whether a concession application complies with specified requirements to be made within ten working days of receipt. An application is considered complete after it has been publicly notified and any additional material provided. The Minister then considersit.

233. The above changes to the Conservation Act would bring concessions processes and timeframes more in line with resource consentprocesses.

234. This proposal was developed as part of DOC’s 2010 Concessions Processing Review, and was widely consulted on at that time. The changes would benefit applicants who need to apply for both a resource consent and a concession. By providing a consistent approach, applicants will have more certainty around the two processes. In addition, it will enable an applicant to undertake the processesconcurrently.

Alternativeoptions

Optional joint process for notified and nationally significant proposals requiring both a concession and resourceconsent

235. Another option is to introduce an optional joint process for notified and nationally significant proposals. Under thisoption:

· Applicants apply directly to the EPA for both the concessions and the resource consents required. The proposal is assessed under the national significance factors set out in section 142 of theRMA.

· For nationally significant proposals, the approval of both the Minister for the Environment and the Minister of Conservation would be required to determine that a proposal was of national significance and the applications should be referred to a BOI. For applications that require notification under both Acts but do not meet the national significance factors set out in section 142 of the RMA, an independent commissioner or EPA itself would be appointed to hearapplications.

· The role of the decision-maker would be to hear both applications. The EPA would commission a report from DOC about the statutory tests applicable to the concession application and a recommendation on how DOC considers the matter should be determined.

· It would also require a report from the council on the resource consent with a recommendation on how the council considers the matter should be determined. DOC would also be able to make a submission to the decision-maker regarding the resource consent in the normalmanner.

· The decision-maker would make two separate decisions, based on the different decision- making criteria as set out in the RMA and Conservation Act, on the resource consent application and concession application. This decision would be appealable on points of law to the HighCourt.

236. While this option could save time and costs for applicants by enabling the amalgamation of two separate notification, hearings and submissions processes, there are significant Treaty implications with this proposal. Legislative responsibilities to iwi differ significantly between the Conservation Act and the RMA. Iwi can be expected to look closely at this process to ensure their role, and the weight provided to the Treaty in the Conservation Act, is not diminished.

237. There is also a risk that this option would pose serious practical difficulties for the BOI or commissioner. The BOI or commissioner would need to apply two different sets of legal tests relating to the different legislation. It is possible that the task of mentally separating out the evidence and applying the different tests may be unrealistic in practice and that the BOI or commissioner would resort to requiring two different briefs of evidence addressing the different tests, and hearing them separately. In other words, the BOI or commissioner would need to hear the evidence on the concession and the consent consecutively rather than concurrently and effectively hold two hearings. The time and cost of developing and implementing this option may therefore outweigh the benefits (particularly given the small number of applications that would be eligible for the jointprocess).

Conclusions

238. The proposed changes to the Conservation Act will bring concessions processes and timeframes in line with resource consent processes. The impacts of this proposal are relevantly minor due to the small amount of applications each year requiring both concession and resource consent. However, this proposal does go some way in aligning processing timeframes across different pieces of resourcelegislation.