By: Amanda Douglas
Published: 4/01/2011
The Bill is aimed at removing current constraints on the growth of the aquaculture industry, given that no new aquaculture space has been created under the regime put in place in 2004.  Currently, aquaculture activities may take place only within aquaculture management areas identified in regional coastal plans.  The government considers that the existing system is overly complex, and offers poor incentives for councils and industry to plan for and invest in aquaculture.

The Bill removes the requirement for aquaculture management areas, so that applicants may apply  directly for resource consent in any part of the coastal marine area, subject to the provisions of the relevant regional coastal plan.

However, the Bill also contains a requirement that no rule may be included in a regional coastal plan which authorises, as a permitted activity, any aquaculture activity in the coastal marine area.  For regional coastal plans which already contain such rules, a review to change those rules in order to comply with this requirement must be initiated within 2 years of the section coming into effect.

Replacement Consenting Made Easier
A new clause 88(2B) is to be inserted, which provides that the assessment of effects on the environment accompanying an application by an existing permit holder (where that permit holder obtained the coastal permit to occupy space for aquaculture activities after 1 January 2005) need only relate to information about the effects of the activity and changes to the environment that mean that the effects of the activity are no longer the same or similar in character, intensity, or scale to those anticipated at the time the original consent was granted.  This change will make the process for obtaining a replacement coastal permit to undertake an aquaculture activity considerably less onerous than is currently the case.

Currently, the Act provides that a consent authority, when considering an application by an existing permit holder for further occupation of coastal marine area space for aquaculture activities, must take into account the applicant's conduct in relation to the use of current industry good practice for any current aquaculture activities.  The Bill deletes that requirement.

Link with Ministry of Fisheries Process
A new process is to be created whereby the making of an aquaculture decision (either a determination or a reservation) by the Ministry of Fisheries is linked to and follows on from the process of obtaining a coastal permit for an aquaculture activity from the resource consent authority. 

Where an application for a coastal permit authorising aquaculture activities to be undertaken in the coastal marine area is lodged with a consent authority, the authority must copy the application to the Ministry of Fisheries, as well as any information or report obtained under section 42C, 42A, 92 or 149, and copies of any submissions received.  Once the consent authority makes its decision, that must also be copied to the Ministry.  The applicant is to be advised that the consent authority's decision is still subject to an aquaculture decision by the chief executive of the Ministry of Fisheries, so that the decision will not commence until after that further process has taken place (in accordance with new section 116A).

If the chief executive makes a determination is made in relation to the permit, that may result in additional conditions being imposed on the permit.  If the chief executive makes a reservation, then the coastal permit may be amended to remove the areas affected by the reservation, and cancelled to the extent that it applies to the removed areas.

20 Year Minimum Term of Consent
A new section 123A provides that a coastal permit authorising aquaculture activities to be undertaken in the coastal marine area must not be granted for a period of less than 20 years from the commencement date, unless the applicant has requested a shorter period, or a shorter period is required to ensure that adverse effects on the environment are adequately managed.  The current upper limit of 35 years remains under section 123A(3).

Shorter Lapsing Period
An amendment is made to section 125, which is the section that provides that a resource consent lapses 5 years from the date of commencement unless it is given effect to, or unless an application for extension of the lapsing period is made, before the consent lapses.  The amendment provides that, for consents which authorise aquaculture activities to be undertaken in the coastal marine area, there is a shorter lapsing period of 3 years from the date of commencement.

Allocation Methods
A new procedure will provide for ministerial approval of the use, by regional councils, of methods for allocating aquaculture authorisations.  Where it is the regional council's opinion that it is desirable, due to actual or anticipated high demand or competing demands for coastal permits for occupation of space in the coastal marine area for the purpose of an activity or activities, that an allocation method be used to allocation authorisations for the space, the regional council may request the Minister of Conservation to approve allocation (by public tender or another method) of authorisations for space in the coastal marine area.  The request must be publicly notified.
Where a request has been made, then no person may apply for a coastal permit to occupy any space that is the subject of the request for the purpose of the activity in the request while the request is being processed and a decision made.

As the clause is drafted, the high or competing demand for coastal permits for occupation need not arise from aquaculture activities in order to enable a request to be made.  If that demand arises from "an activity or activities", the regional council may request the use of an allocation method.  The request must state the activities it is proposed the public tender or allocation method will apply to.

The stay on applications while the request is being processed only prevents applications for the activity specified in the request being lodged.  It would seem that other activities which are proposed to take place in the space specified in the request, and which may be competing for space with the specified activities in that space, may be the subject of an application while a request is being processed.

The Minister may approve the request on the terms specified in the request, or approve it on terms that, in the Minister's opinion, will better manage the actual or anticipated high demand or competing demands in the space, or decline the request. There is no right of appeal against the Minister's decision provided for by the legislation, and the Bill requires any application for judicial review of the Minister's decision to be lodged within 15 working days notification of the decision.

If the Minister approves the method for allocation authorisations, then during the period that the approval is in force, no person may apply for a coastal permit authorising occupation of the space for an activity covered by the approval unless the person is the holder of an authorisation that relates to that space and activity.  However, it appears to remain open for a person to apply for a coastal permit authorising occupation of the space for an activity which is not covered by the approval, whether or not that person holds an authorisation.

The Minister of Aquaculture may suspend the receipt of application for coastal permits authorising aquaculture activities to be undertaken in the coastal marine area, in response to a request by a regional council, and only if the Minister is satisfied that suspension is necessary or desirable because of actual or anticipated high demand or competing demands, and the existing methods are not adequate to deal with that.

The Minister of Aquaculture may also direct a consent authority to process and hear together applications for coastal permits authorising aquaculture activities to be undertaken in the coastal marine area.  Such a direction does not need to have been initiated by a request from the regional council, and the section does not specify any matters about which the Minister must be satisfied prior to making such a direction.

Regional Coastal Plans May be Amended by Regulation
The Bill enables the Governor-General, by Order in Council, to amend provisions in a regional coastal plan that relate to the management of aquaculture activities in the coastal marine area.  Any such regulations must be made on the recommendation of the Minister of Aquaculture, after consultation with the Minister of Conservation, the regional council that will be affected, and others with whom the Minister of Aquaculture considers it appropriate to consult.

Before making the recommendation, the Minister must be satisfied that
  • the proposed regulations are necessary or desirable for the management of aquaculture development in accordance with the Government's policy for aquaculture in the coastal marine area;
  • the matters to be address are of regional or national significance;
  • the amended plan will continue to give effect to any national policy statement, New Zealand coastal policy statement, and any regional policy statement; and
  • the amended plan will not duplicate or conflict with any national environmental standard.
However, there is no requirement for the Minister of Aquaculture to carry out an evaluation under section 32 of the Act, prior to making a recommendation.
This procedure does not enable any person to make a submission on the proposed changes to a regional coastal plan, nor provide any ability to appeal the Minister's decision, although judicial review of the decision remains possible.

Regional Coastal Plans Amended by the Amending Act
The Amending Bill contains, in schedules 2 and 3, extensive amendments to the proposed Tasman regional coastal plan and the Waikato regional coastal plan respectively.

It is a very unusual step to amend plans through legislation in this manner, as it removes the ability for persons affected by and interested in the plan to have input to the plan-making process (apart from making a submission on this Bill), and also removes any ability to appeal the new provisions of the plan to the Environment Court.

Extension of Time for Considering Imposition of Coastal Occupation Charges
Currently, section 64A requires regional councils, when preparing or changes regional coastal plans, to consider matters relating to the imposition of coastal occupation charges.  Sections 401A(3) and (4) suspended the requirement to comply with section 64A until 1 July 2007.  The Bill amends those sections by extending the suspension period until 3 years after the commencement of the Amendment Act.
The Bill also contains some amendments which apply to all resource consent processes, and are not confines to aquaculture applications.

Discounting on Resource Consent Applications
Section 36AA is amended.  That section provides for local authorities to discount their administrative charges where the Act's timeframes for resource consent processing have not been met, and the responsibility for that failure rests with the local authority.

Currently, section 36AA(1) states that a local authority may provide a discount on an administrative charge imposed under section 36 in accordance with regulations made under section 360(1)(hj).  The amendment tightens this up, so that a local authority must provide a discount on an administrative charge imposed under section 36 in accordance with -
(a) regulations made under section 360(1)(hj); or
(b) any policy it has adopted under subsection (3), if the policy is more generous than that provided for in the regulations.

The current wording allows an argument to be made that discounting of administrative charges is optional, whereas the amendment would make discounting mandatory, on a basis at least as generous as provided for in the regulations.

Who may be given Hearing Authority?
Section 39B, which is the section setting out which persons may be given hearing authority, is amended by the Bill.

The scope of the existing section is expanded to include hearings on council-initiated plan changes.
The amended section will require all of the persons on a hearing panel to be accredited, whereas the current provisions only require the chair of a hearing panel to be accredited.

There is an exemption for exceptional circumstances that do not provide the time or opportunity to ensure that all persons in the group are accredited.  Sometimes it is necessary or desirable to appoint a decision-maker with particular technical expertise to a panel, and where the pool of suitably qualified experts is small, it may not be possible to appoint somebody who has carried out the accreditation course.

If enacted in its current form, this amendment would not come into force until 2 years after the date on which the Bill receives the Royal assent.  This should enable any districts and regions which are currently operating with a substantial number of unaccredited hearing members to have their decision-makers accredited before the amendment takes force.

Activity Status for Prohibited Activities in Proposed Plans
Section 87A(6) is amended to correct a drafting error. That section currently provides that, if an activity is described in the Act, regulations, a plan or a proposed plan as a prohibited activity, then no application for a resource consent may be made for the activity; and the consent authority must not grant a consent for it.  That was inconsistent with section 87B(1)(c), which stated that an application for a resource consent for an activity must be treated as an application for a resource consent for a discretionary activity if a rule in a  proposed plan describes the activity as a prohibited activity and the rule has not become operative.  The amendment corrects the inconsistency by removing the phrase "or proposed plan" from section 87A(6).
 
 
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