Every application for resource consent must “be made in the prescribed form and manner” and “include the information relating to the activity, including an assessment of the activity’s effects on the environment, that is required by Schedule 4” of the Resource Management Act 1991 (s 88 (1)). That Schedule sets out what is required of an application, clauses 6 and 7 dealing with the infomation that must be contained and the matters that must be addressed in the assessment of environmetal effects (AEE). The ‘prescribed form’ – Form 9 of the Resource Management (Forms, Fees and Procedure) Regulations 2003 – is embellished with explanatory notes reminding applicantsof the Schedule 4 requirements. The two should be read together.
Clause 1 of Schedule 4 provides that the information required by it, including the AEE, “must be specified in sufficient detail to satisfy the purpose for which [that information] is required.” What the relevant purpose(s) might be is not specified. This is the focus of the present article..
Context matters. The AEE is part of the process by which applications for resource consent are begun; necessarily it must be prepared before notification issues have been addressed, well before formal notification has occurred and some considerable time before the issues for determination have been identifed through a consideration of submissions. The most obvious purpose for which an AEE is required is thus to provide a basis upon which the notification and submission process can proceed (another is to found the desccription of mitigation measures required by clause 6(e) of the 4th Schedule). An AEE must therefore contain sufficient information both to enable appropriately delegated persons to perform the Council’s functions (relating to notification (sections 95-95G) and to enable potential submitters to assess the effects of the activity on the environment and on their own interests so that they can decide whether to make submissions. The New Zealand courts have made it clear that, at this phase of the process, neither the council nor potential submitters should be required to engage in detailed investigation.
How, then, does this obligation ‘cash out’? It seems reasonable to suppose that an adequate assessment can only be made if it has been preceded by a sufficient description of the ‘bundle of activities’ for which consent is sought.
On the face of things applications require somewhat different activity descriptions in different places. Clause 2 of Form 9 is, in its entirety:
- The activity to which the application relates (the proposed activity) is as follows: [describe the proposed activity]
What seems to be required here is a form of words which, in the applicant’s view, will both encapsulate and sufficiently authorise the ‘proposed activity’ – one otherwise proscribed by the Act and the relevant Plan. By way of example, the 2003 Marlborough Sounds Resource Management Plan employs the use-description ‘Commercial Forestry’, for which a definition is given. If an applicant for resource consent proposes to to carry out that activity (as defined) all that may be required in Clause 2 of the application is a repetition of those words. In that way the ‘scope’ of the activity will be identified in a manner apt to the enabling parts of the desired consent.
While that may satisfy the requirements of Clause 2 it does ot seem sufficient for the purposes of an AEE. Plainly, an activity like ‘Commercial Forestry’ will change over time, differing phases each possessing different operational elements and environmental effects. An adequate AEE must capture all of these – at least to the extent that they can reasonably be anticipated at the time of application. Again taking ‘commercisl forestry’ as an example, it will be obvious that the effects on the environment (and on potential submitters or their successors) of the harvesting phase will both differ from the those of the preceding phases and have a lot to do with the harvesting process which the applicant has in contemplation.
A sufficient description of the activity for the purposes of an AEE will therefore be rather different from that required in Clause 2 – or, for that matter, for the purposes of an “assessment of the activity against the provisions of a” statutory planning document (Schedule 4, clause 2(1) (g)). What is needed here is a whole-of-life assesssment of environmental effects based on a whole-of-life description of anticipated activites. Such an approach also facilitates the required judgment, by the applicant, as to whether “it is likely that the activity will require significant adverse effects …” – cl. 6(a), my emphasis – and thus whether there needs to be “a description of any possible alternative alternative locations or methods of carrying out the activity.”
Thus far the discussion has remained within the ‘purpose’ framework described earlier – one that sees the function of the AEE as largely exhausted by the time submissions have closed. There are grounds, I think, for concluding that the ‘purpose’ of an AEE has no further reach. Firstly, as Judge Treadwell remarked many years ago, an AEE must be looked at in light of the fact that it is an applicant’s assessment, and as such carries no warrant of its own veracity. Every part of that document is contestable at a later stage; all that an applicant can be expected to do at this stage is to put forward opinions reasonably held on an understanding of ‘facts’ honestly reached. Council officers, s42A report writers and submitters may well be of a different view, thus raising issues ultimately to be determined at the hearing. However the sufficiency of an AEE, considered at the time of application, does not require that every assertions of fact or opinion contained in it be either incontrovertibly correct or accompanied by supporting argument.
Nevertheless those assertions will retain something of an ‘evidential’ character. This is reflected in s 113 (a)(i), which permits the adoption, by way of ‘cross-reference’ and without repetition, of relevant parts of it in the ultimate decision – a provision which seems imply a finding by the decision-makers that the passages in question either encapsulate matters generally agreed (or, at least, not contested) or reflect the conclusions to which they themselves have come.
In the absence of support at the hearing, however, the evidential weight of asssertions in an AEE will be slight. The Environment Court and its predecessors have long taken the view that reports and the like are to be given little weight unless one (at least) of their authors is called in support of them. The point here is two-fold: (i) the probative weight of any document of that kind depends on the knowledge and expertise of those responsible for its compilation; and (ii) it is part of the decision-makers’ task to determine whether evidence of fact or opinion comes from a sufficiently reliable source.
A similar point can be made in relation to the adoption, within the evidence of another witness or a s42 report, of parts of an AEE – the second of these is enabled by s42(1B). When something like this happens the weight to be given to those adopted parts depends on the knowledge and expertise of the adopter – at its lowest, adoptions of this kind may establish no more than that such a thing was said, rather than whatever it is that was said is itself worthy of belief. As a matter of natural justice decision-makers must come to conclusions on the basis of the evidence available to them. The broad principle is this: something will be ‘evidence’ only if it is brought in to the hearing context.
In summary: An assessment of environmental effects which complies with the requirements of Schedule 4 RMA’91 is both a necessary and important part of every application for resource consent. Its primary purpose is twofold: to enable the consent authority to perform its statutory functions relating to notification, and to alert potential submitters to the nature and significance of effects of the proposed activity upon the environment and upon matters of interest to them. Thereafter its significance declines.
An AEE must deal with the effects of the proposed activity viewed as a whole, rather than merely the effects of those elements that trigger the need for consent. It must not mislead, either actively or by omission. In this respect the threshhold of adequacy is not that of incontrovertible truth; rather an AEE will be sufficient if it (i) deals with the matters set out in the 4th Schedule to the Act. (ii) is founded on an appreciation of the factual circumstances that is both honestly and reasonably held, (iii) identifies all effects likely to be relevant to the substantive decision and (iv) provides an honest evaluation of those effects at a level of detail that corresponds with the scale and significance of them.
The adequacy of an AEE may well become an issue. At a contested hearing however, and in the absence of supporting evidence, the assertions made in an AEE are unlikely to carry significant weight.
