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Mr Iain Maxwell introduced the item.
Councillor Barker left the meeting at
9.50am
Mr Maxwell advised that this paper is
provided in response to a request to look at delegations in terms of whether
Council could or should be involved in the notification decision for water
bottling resource consent applications. The paper details Resource Management
Act processes, how the notification decision making is conducted, how
consents are processed, relevant parts of the legislation, delegations and
looks at issues and ways forward. The paper arrives at the staff perspective
that irrespective of who makes the notification decision, proper process must
be followed and if proper process is followed, then the decisions will not be
any different than the decisions that are being made by staff. If the
decision making process is a political one rather than a proper RMA process
one, there are litigation risks (judicial review) to Council by applicants or
other parties.
Councillor Barker re-joined the
meeting at 9.53am
After further reflection on the issues,
Mr Maxwell created a presentation to expand on the broader picture and
issues, to suggest a ‘Special Circumstances’ option that staff
are seeking legal advice for, and to encourage further discussion. The
presentation outlined political issues and risks associated with water
bottling resource consents and groundwater resources, followed by possible
solutions and potential perverse outcomes of policy changes.
Discussions throughout traversed:
·
Staff view is that the TANK plan change
process is the ‘right’ place to consider the issues and the range
of solutions and resolve ways forward, potentially through prioritisation if
there is competition for the resource.
·
Clear view from MfE that there is no interest
from Central Government in charging royalties for bottling water, however
Council may choose to pursue it further.
·
In an environment where Council knows little
about a resource or has concerns about it, a very high bar can be placed on
the information required to support a resource consent application to satisfy
Council of its effects (not more than minor) on the resource. However there
must be an RMA requirement for that and there is no scientific evidence to
suggest there is an issue with the resource, and Council does have a detailed
knowledge of this resource. Also, cannot focus on a particular activity and
must consider all activities with similar effects, i.e. all water takes for
all activities.
·
Judicial review is of proper process and does
not consider or re-litigate the merits of the activity or otherwise
·
RMA section 95(A) (4)
states “Despite subsection (3), a consent authority may
publicly notify an application if it decides that special circumstances exist
in relation to the application.” The presumption of s95 is that
applications are to be processed non notified unless there are legitimate
reasons under the RMA why they should be notified.
·
The definition of Special Circumstances, for
the purposes of s95(A)(4), is circumstances
that are unusual or exceptional, but may be less than extraordinary or unique. According to good practice guidelines,
special circumstances must be more than where a council has had an indication that people want to
make submissions, the fact that a large development is proposed, or the fact that some persons have concerns about a proposal. Mr Maxwell
has sought legal advice around whether “significant public interest and
controversy” might be considered special circumstances in relation to
water bottling and will bring that legal opinion back to Council.
·
It was suggested that
instead of reviewing case law and seeking legal advice, Council use the
‘special circumstances’ reason of public interest and controversy
to notify a water take consent application for water bottling and
‘test’ its validity through the courts. Staff are of the view
that it is better to assure Council is acting lawfully and following proper
process before making a policy change that could result in a decision being
overturned in the Court.
·
Allocation of water resources, specifically
through the TANK process, and priority setting, public expectations and
public education. HBRC put a 2 page “groundwater facts”
information piece into the community newspapers about 4 months ago, however
since then individuals have re-invigorated the issues around allocation, etc
without reference to the facts and information available, and the debate has
become a scaremongering, uninformed political one.
·
Science modelling is carried out to inform
policy development to ‘avoid’ future unsustainability as opposed
to science monitoring which provides the current state of the resource. For
example, recent groundwater science reports provided trends of aquifer
levels, which include different aquifers and different parts of those, for
example confined and unconfined.
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