In December 1999 the Otago Conservancy of the Department of Conservation granted a concession authorising Routeburn Walk Limited to build an additional private lunch shelter on Harris Saddle on the Routeburn Track. I believe that the process was substantively unsatisfactory. The decision will result in a negative conservation outcome. The proposed private shelter will have an unjustified intrusive effect on the natural landscape and scenery on the highpoint of the Routeburn Track and on trampers' recreational enjoyment of those features.
The decision was predetermined by prior discussions with Routeburn Walk Limited in 1997 before the application was received and before iwi consultation or public notification. Consultation occurred after the shelter design issue was finalised. Only the one preferred option for the shelter was presented. No alternatives were presented or considered in the process.
The interpretation of consistence with conservation goals was overly weighted in favour of development due to an incorrect interpretation of 'appropriate balance' between preservation goals and use goals. The correct interpretation gives greater weight to preservation.
The review of the environmental information in the application was inadequate. Routeburn Walk Limited failed to assess the effects on the environment with appropriate reference to the conservation management plans and strategies. Routeburn Walk Limited applied for an easement to use the septic tank system at the Department's Harris Saddle shelter. During the concession process this was discharging unsettled effluent out of a 40mm pipe into an ephemeral stream in breach of the discharge permit and the Conservation Act. Otago Conservancy regarded the sewage effect as irrelevant to the concession process.
Consequently Otago Conservancy is permitting a concession proposal that is a bad conservation outcome after following a flawed process characterised by predetermined results, substandard consultation, inadequate weighting for conservation goals, and poor environmental impact assessment. Furthermore the Otago Conservator has selectively replied to requests under the Official Information Act and has refused to supply departmental correspondence on the factually incorrect grounds that it does not exist.
This section provides background to the application, describes the unfolding of the application process, and outlines my efforts to raise concerns about the process.
Routeburn Walk Limited is a private company conducting 5 day, 3 day and day-trip guided Walk on the Routeburn Track and the Greenstone Valley (RWL 2000). The company owns and operates two lodges on the track, both near Department of Conservation huts at Lake MacKenzie (Fiordland National Park) and at Routeburn Falls (Mount Aspiring National Park) (DOC 1999a). Routeburn Walk Limited has operated since 1978 (DOC 1999a).
The application was for the renewal of a guiding concession and permission to construct an additional private lunch shelter attached to the existing public shelter on Harris Saddle. It was submitted to the Department of Conservation's Otago Conservancy in February 1998 (RWL 1998). From December 1998 to January 1999 Routeburn Walk Limited sent copies to several South Island runanga (DOC 1999a). In May 1999 a preliminary report was written on the application (DOC 1999a). In June 1999 Otago Conservancy notified the application in the three major South Island newspapers and called for public submissions as required under section 49 of the Conservation Act 1987. Ten others and I responded. Ten of the eleven submissions were against granting approval for the shelter because of the intrusive effect on the natural scenery and landscape and on recreational use. A public hearing was held in October 1999 in Dunedin. Otago Conservancy Community Relations Manager Ian Whitwell was the public hearing commissioner and wrote the concession 'report to approve' document (DOC 1999b). Otago Conservator Jeff Connell approved it.
In December 1999 submitters were informed of the decision to grant the concession without being informed of the reasons. In January 2000 I requested the report to approve the concession (DOC 1999b). In February 2000 Southland Conservancy informed me that the Harris Saddle sewerage system had been 'checked and maintained to comply with the original approved plan'. I had pointed out in my submission that this system, over which Routeburn Walk Limited had applied for an easement, had an adverse environmental effect. It had no dispersal field. The effluent was gushing out of the end of a pipe. This effect had been ignored in the concession approval process.
In April 2000 I wrote a paper titled 'Sewage happens at Harris Saddle: soft DOC environmental impact assessment'. That paper argued that the decision was flawed due to lack of consistence with conservation purposes, inadequate assessment and review of environmental effects (particularly the Harris Saddle sewage dispersal), and predetermination. I sent this article to Otago Conservator Jeff Connell and to the Otago Conservation Board. In response Jeff Connell's staff contacted the Department's two field centres at either end of the Routeburn Track, Te Anau and Glenorchy. Dunedin staff asked if there were any adverse environmental effects of the Harris Saddle toilet. I requested this correspondence under the Official Information Act on 1 May. I also requested the Harris Saddle shelter addition construction start date.
Jeff Connell supplied copies of the Te Anau correspondence on the 9 May. They stated incorrectly that there had been no adverse effects from sewage discharge at Harris Saddle. Connell stated that he did not have to inform me of the planned construction date under the Official Information Act, as he did not know it. On 10 May Jeff Connell sent me a 4-page response to my article. On 11 May I specifically requested the correspondence between Glenorchy field centre and Dunedin and a copy of the Harris Saddle toilet and septic tank monitoring logbook for 1995 to 1998. On 17 May I asked Jeff Connell if Routeburn Walk Limited had submitted final plans for the shelter to the Queenstown Area Manager as required by the concession conditions. On 30 May I received a reply from the Chairperson of the Otago Conservation Board. It thanked me for raising my concerns but commented that as Harris Saddle was in Southland Conservancy they had no jurisdiction. However my letter was copied to the Southland Conservation Board. Jeff Connell had stated to the Otago Conservation Board that he did not believe any of my criticisms were valid (OCB 2000).
On 7 June Jeff Connell replied to my letters of 11 and 17 May. He stated that 'there is no correspondence dated since 6 April 2000 between Otago Conservancy Dunedin staff and Glenorchy field centre staff concerning the operation of the Harris Saddle septic tank system'. The correspondence in fact started with a fax sent on 13 April. It was addressed to Richard Kennett the Glenorchy field centre supervisor. It was from Richard Clarke (Dunedin Community Relations Officer - Concessions) with the subject 'Harris Saddle Shelter discharge of effluent'. A second fax with 14 pages of attached documents was sent the same day. One document was a letter dated 21/7/99 from Southland Conservancy to the Southland Regional Council requesting the surrender of the Department of Conservation Harris Saddle shelter sewage discharge permit as the activity would be a permitted activity under the Southland regional water plan. Extracts of this plan were included in the 14 pages. The fax cover page specifically asks 'does the discharge comply with the conditions of the permitted activity rules S.5.1.2'
Routeburn Track hut warden Bruce Craigie (a former public health inspector with a BSc in microbiology and a diploma in public health) prepared a hand-written reply. It stated that the monitoring logbook indicated regular breaches of the 1994 permit such as routine discharges into an ephemeral waterway and within 20m of a larger waterway. I leave readers to come to their own conclusion about Jeff Connell's statement.
Jeff Connell did admit that Routeburn Walk Limited had not submitted final drawings to the Queenstown Area manager, so final approval for construction had not been given. Given the level of winter snow at Harris Saddle, construction will probably not be possible until October or November.
On 26 June 2000 I wrote back to the Otago Conservation Board. I outlined my responses to the letter of 10 May 2000 and I requested them to advise Jeff Connell to reconsider the shelter approval decision. On 7 July 2000 I attended the Otago Conservation Board's public forum with representatives from local tramping clubs, the University of Otago student environmental group and Federated Mountain Clubs. I summarised my concerns for the Board which are now outlined in detail in this submission. On 24 July I spoke to and wrote to Lou Sanson the Southland Conservator about my concerns. He replied on 28 July 2000 appreciating the time I had put in but noting that as the decision was made by two Conservators it could only be overturned by the Regional General Manager. Jeff Connell replied on 1 August 2000. He stated that that I misquote legislation and I had distorted reports and misinterpreted plans. Connell stated that he had reconsidered all relevant plans and policies at the Otago Conservation Board's request and that the decision would stand.
This section outlines the statutory basis of the concession regime and uses flowcharts to describe and analyse the statutory process.
The Department's process to permit tourism and commercial operators (concessionaires) within conservation areas is contained in Part III, sections 17O to 17ZJ of the Conservation Act 1987. These sections were inserted by the Conservation Amendment Act 1996 to create a single set of provisions for concessions under the Conservation Act, the National Parks Act, the Reserves Act and the Wildlife Act (DOC 1996). This relatively new set of concession provisions reflects the environmental impact assessment focus of the Resource Management Act (DOC 1996). Environmental impact assessment is simply a process that ensures that proposals are approved with full information about their environmental effects (Smith 1996). It is defined as a process to identify, predict, mitigate and avoid effects on the environment of planned proposals and to communicate this information to proponents, the public and decision-makers (Munn 1979). Applicants for concessions must identify the potential effects of their activities and suggest ways that adverse effects on the environment can be avoided or mitigated (DOC 1996). "Effects" has the wide Resource Management Act definition under section 2 of the Conservation Act 1987.
The concession approval process is generalised in the flowchart in Figure 1. The key documents are the 'approval in principle' report and the 'report to approve' which are reports from the Director-General under section 17S(4)(a). The approval in principle report summarises the application, the iwi consultation and how the application meets the statutory tests, before public notification. The report to approve is the final decision-making document as well as the Minister's response to submissions under Section 49(2)(d) & (e).
The principle sections are 17S, 'Contents of application', 17T, 'Process for complete application', 17U 'Matters to be considered by Minister' and 17W, 'Relationships between concessions and conservation management strategies'. The statutory tests in these sections are described in detail in Figure 2. I have phrased each test as a question, usually with a yes or no answer. Dotted lines indicate the decision criteria. Arrows with solid lines indicate the next test or question to go to in hopefully a logical order. The first test is the procedural issue of existence or application of a relevant conservation management strategy. Conservation management strategies establish objectives for areas managed by the Department (S.17D1&2). The second test is completeness of information.
The tests give differing degrees of discretion to the decision-maker. There are non- discretionary tests where the Minister 'shall decline' the application where a condition is not met. These are considered in the flowchart before the more discretionary 'may decline' tests.
I have described 16 tests in the flowchart, of which 12 are non-discretionary and 4 are discretionary. Six non-discretionary tests are directly concerned with consistence with conservation purposes. Eight tests are 'effects' oriented, and of these two are discretionary. The final test states that the Minister shall not be required to grant a concession if it is considered inappropriate in light of the non-discretionary criteria the Minister shall have regard to. (My emphasis) The tests are included at the beginning of each section below in a box.
From the number of tests and their wording, particularly that of the last test, it is apparent that the process has the purpose of ensuring that the Department of Conservation will not grant applications that are either inconsistent with conservation purposes or have undesirable effects. The burden of proof for establishing otherwise lies on the applicant.
Figure 1. Summary of the concession approval process. All references are to sections of the Conservation Act 1987 unless stated.
Continues next page Figure 2. Flowchart of the statutory tests in the concession approval process. All references are to sections of the Conservation Act 1987 unless stated. Page 1 of 2
Figure 2. Flowchart of the statutory tests in the concession approval process. All references are to sections of the Conservation Act 1987 unless stated. Page 2 of 2
Routeburn Walk Limited's consultation with the public was substandard as it was the absolute minimum required by the department. From 1996 until the application was received in February 1998 the department had been engaged in a lengthy dialogue with the applicant without any public consultation (DOC 1999b). There had been a joint site visit involving a departmental architect in May 1997. Several designs for the shelter had been discussed, again without any public consultation (DOC 1999b). From December 1998 Routeburn Walk Limited sent copies of the concession application to several South Island runanga (DOC 1999a). This appears to have been at the insistence of the department as Routeburn Walk Limited stated in the application that they considered there was no need to consult anyone (RWL 1998).
Public notification was mandatory under the Conservation Act as the application was for a licence (section 17T(4)). A public hearing was requested by two of the eleven submitters. The report to approve the application incorporated only one aspect of the submitters' concerns. This was a recommendation to reconsider the shelter design to ensure the best outcome in a highly sensitive area (DOC 1999b). This was rejected by the Conservator, Jeff Connell. He stated that 'appropriate care (with the shelter design) was taken prior to the application being lodged and that there are no compelling reasons or new issues raised in the submissions that justify the design being reconsidered now' (DOC 1999b, my emphasis).
It appears that the public have no real role to play in the process. The real decision will be determined without public consultation before the statutory process starts. According to Otago Conservancy, public submissions must satisfy the excessively high burden of proof of being compelling in order to influence the decision making process. Figure 2 indicates that the legislation clearly places the burden of proof on the concession applicant.
Case law summarised by the Ministry for the Environment (MFE 1996) establishes that good consultation involves sufficient time, genuine effort, and meaningful discussion. Consulting involves communicating a proposal that is not set in stone, listening to others, considering responses and then deciding what will be done. Consultation must happen for a reasonable time in a spirit of open-mindedness so that all reasonable planning options are carefully considered.
For an environmental impact assessment process, public involvement through consultation is critical to the success of the process. Consultation addresses environmental issues of public concern, keeps the process open and democratic, provides better advice to decision-makers and gives credibility to the process (Morgan 1998). Good consultation will be early, in the planning (or scoping) stage of the development. It will be iterative, so that feedback loops continually inform all interested parties of responses to concerns and solutions. It will be open, so that the applicants can adopt options from a range of alternatives (Morgan 1998).
When considered on these measures consultation for Routeburn Walk Limited's concession application has been manifestly inadequate. Consultation was late, after the shelter design issue was determined with the department. Consultation was compartmentalised as each party was consulted with partial information that did not reflect concerns of other parties (i.e. The rununga would not have been informed of the sewage discharge breach). Consultation was closed as only the one preferred option for the shelter was presented. Submitters could not finally form a view of the validity of the process and of how the department regarded their concerns as the department did not send them the report to approve at the end of the process.
This section describes how Otago Conservancy interpreted the requirements for concessions to be consistent with conservation management strategies and plans. Otago Conservancy used an 'appropriate balance' interpretation between 'provided for' uses and 'consistent with' constraints. The correct interpretation under Section 17W is that the 'consistent with' requirements carry greater weight than the 'provided for' uses. This is consistent with the legislation's purpose of conservation.
17W. Relationship between concessions and conservation
management strategies and plans
(1) Where a conservation management strategy or conservation management
plan has been established for a conservation area and the strategy or
plan provides for the issue of a concession, a concession shall not be
granted in that case unless the concession and its granting is consistent
with the strategy or plan.
(2) Where-
(a) There is no conservation management strategy or conservation
management plan for a conservation area; or
(b) The relevant conservation management strategy or conservation
management plan does not make any provision for the activity to which the
application relates in a conservation area,---
the Minister, after complying with the provisions of sections 17S, 17T,
and 17U of this Act, may grant a concession.
The Department must consider whether the conservation management strategy 'provides for' the concession activity. See Figure 2, step 1).
This test appears to have the purpose of allowing applications for activities for which there is no specific provision in conservation management strategies and plans, as long as the decision complies with S.17S, S.17T and S.17U (S.17W(2)), and the activity is compliant with and consistent with conservation management strategies and plans (S.17T2). Activities that are not provided for but are consistent with conservation management strategies and plans may be approved.
The approval in principle report notes the relevant plans and strategies in section four on page seven. A two-page appendix to the report summarises relevant sections of these plans. The paragraph concludes, "the application is not inconsistent with these documents". The approval in principle report does not state whether the conservation management strategy or plan provides for the activities applied for. The report to approve spends several pages discussing consistence with conservation management strategies and plans but does not discuss whether they provide for the activities applied for (DOC 1999a).
The two Departmental reports confuse 'consistent with' and 'provide for'. The process has not stated whether the application's activities were 'provided' for in conservation management strategies and plans.
As noted above the approval in principle report notes the relevant plans and strategies in section four on page seven. A two-page appendix to the report summarises relevant sections of these plans. The paragraph concludes that as the plans mention (provide for) guiding and facilities, "the application is not inconsistent with these documents".
Submitters argued that the Routeburn Walk shelter addition would be inconsistent as it compromised the natural setting of Harris Saddle. These concerns were dismissed as they were considered "too narrow a view" of the interpretation of the "appropriate balance between preservation and use" statements in the relevant conservation management plans and strategies (DOC 1999b).
The report to approve states that there are two-clause objectives where the first clause enables or envisages a development and a second clause places some constraint on it. The clauses are to be interpreted by determining the 'appropriate balance'. Authoritative support for this proposition is claimed from the Introduction to the National Parks General Policy (1983) and from the practice of zoning in national parks for impacts (DOC 1999b, page 12). The key question is whether the constraining clause has been unacceptably compromised in favour of the envisaged activity. For example this is the objective for the Mount Aspiring National Park Management Plan moderate impact zone: "To allow a greater degree of impact in the more accessible areas of the park and more varied uses than elsewhere, while retaining the essentially unmodified character of Mount Aspiring National Park" (DOC 1994)
Mr Whitwell's interpretation of this objective is:"The first clause suggests that an additional shelter building might well be an acceptable development, and the second clause puts some constraints on the idea. The question is: at what point does the 'essentially unmodified' character become unacceptably affected?" (DOC 1999b, page 13).
The logical flaw in the 'appropriate balance' interpretation is that it allows ad-hoc decision-making. Anything may be consistent with a strategy or plan if the 'provided for' clause is interpreted broadly enough and the 'consistent with' clause is interpreted narrowly.
Under S.17W(1) of the Conservation Act 1987, activities that are provided for but are inconsistent with conservation management strategies and plans shall not be approved. This means that a strategy can 'provide' for an activity that can be considered 'inconsistent' by reference to that strategy. For example the Fiordland National Park Management Plan specifically provides for guided walks (3.10.7, page 68), and for their facilities and huts (3.4.4, page 53). In common with most conservation management strategy or plan objectives the statement at 3.4.4 has two clauses:
The first clause makes provision for the activity. The second clause limits that provision. I would interpret this to mean that concessionaires facilities within Fiordland National Park are provided for in the plan but if they conflict significantly with other park values or recreation management objectives, the facilities will be inconsistent with the conservation management strategy or plan. If so, the Minister's decision making is not discretionary, the Minister shall not grant the concession.
In the same way that Section 5 of the Resource Management Act is interpreted to have a management clause that is subordinated to the ecological clause by the word 'while' (Fisher 1991; Harris 1993; Williams 1997; Grinlinton 2000), I interpret this objective in the Fiordland National Park Management Plan to have two clauses. One of these (the 'consistent with' clause) subordinates or constrains the other (the 'provides for' clause). I consider all 'two-clause' objectives in conservation management strategies and plans should be interpreted in this way because of S.17W(1) and as it is consistent with the conservation purpose of the Conservation Act 1987.
I submit that the correct interpretation of S.17W(1) is that an activity being consistent with a plan or strategy is more important than an activity being provided for. This means that the 'appropriate balance' should be found nearer to the constraining 'consistent with' requirements than towards the enabling 'providing for' phrases.
Mr Whitwell's interpretation, that the 'consistent with' requirements can be acceptably affected, places the balance too far towards development. Section 17W(1), the 1996 amendment to Conservation Act 1987, provides the correct interpretation of the 'appropriate balance' and should take precedent over the introduction to a 17 year-old policy.
Jeff Connell argues that objectives in conservation management strategies and plans should not be interpreted literally as this may preclude any actions. Jeff Connell's letter of 10 May states that "management planning statements frequently provide that something may happen subject to some overall objective. Both have to be considered in the overall context of the legislation and planning documents, since a literal interpretation of the overall objective may preclude any action" (DOC 2000).
I disagree. The reason for having conservation management strategies and plans is to preclude undesired actions that lessen the naturalness of the environment. In the conservation context the effectiveness of a strategy should be measured by the degree that it unequivocally precludes undesired actions. There is little point having conservation management strategies and plans if the Department can still make ad-hoc decisions.
In summary the decision process has incorrectly interpreted the relationship between the statutory terms 'provided for' and 'consistent with'. The correct interpretation is that 'consistent with' is to be given greater weight than 'provided for'.
This section asks how well did the Harris Saddle shelter proposal and its approval process consider alternatives. This is a basic requirement of good environmental impact assessment (Morgan 1998; Raff 1997) and a statutory step.
The approval in principle report states in section 3.10 that the existing Routeburn Walk buildings and the proposed addition to the Harris Saddle shelter could not be undertaken in alternative locations. The existing lodges and the proposed addition need to be considered separately. It is obvious that the issue of alternative locations for the lodges is a little unrealistic as the lodges are already there. This is not the correct approach for the shelter addition. The location of a proposed shelter is not limited in the same way.
The Routeburn Walk Limited assessment of environmental effects states that no alternative site for the proposed shelter is more appropriate because Harris Saddle is already modified and has water and sewerage. The proposed shelter will have no significant adverse effects. Therefore there is no requirement to assess alternative locations or methods.
This interpretation appears to be correct in terms of the Fourth schedule to the Resource Management Act which describes matters to be included in an assessment of environmental effects. However this is not the applicable statutory test. Section 17U(4)(a) of the Conservation Act specifically requires the Minister to consider alternative locations for structures.
'The Minister shall not grant any application for a
concession to build a structure or facility, or extend or add to an
existing structure or facility, where he or she is satisfied that the
activity;
a) could reasonably be undertaken in another location that
i) is outside the conservation area to which the application relates;
or
ii) is in another conservation area or in another part of the
conservation area to which the application relates, where the potential
adverse effects would be significantly less...
This test is also expressed in plain language in the DOC web page:
"If your proposal includes buildings or structures, the Department will also consider whether there is a more suitable place where your proposal would cause less damage"(DOC 2000b)
The Fiordland National Park Management Plan has this statement on implementation of objectives for the eastern popular zone that includes Harris Saddle:
"...any development proposals must include assessment of impacts on the natural environment and existing recreational opportunities. An important consideration will be the impacts that proposed developments might have on landscape vistas in this popular area of the park, and any optional sites or routes that could be used to avoid such impacts". (DOC 1991, section 3.3.6, page 50, my emphasis)
From these statements the 'potential adverse effects' will at minimum include impacts on the natural environment, impacts on existing recreational use, and impacts on landscape vistas. The Harris Saddle proposal has all three potential adverse effects and so triggers the requirement to consider alternatives, 'optional sites that could be used to avoid such impacts'. Therefore alternative locations that significantly reduce the potential adverse effects shall be considered in the decision-making process. Again the Minister's decision is not discretionary. If the Minister is satisfied that other locations are reasonable and have less effects the Minister shall decline the application.
The report to approve does not meet this requirement as no other locations are considered. The report dismisses alternative sites for two reasons (DOC 1999b, page 17). Firstly it is preferable to deal with problems on the existing site rather than establish an additional site elsewhere and secondly there are no alternatives as the Routeburn cannot be substituted for elsewhere. This is a case of disposing of alternatives in favour of a decision that has already been made (Raff 1997). A proposed action must be assessed, not a 'fait accompli'. Assessment of a proposal's effects cannot validly be reduced to mere paperwork in favour of a decision already made. American courts have stated that this is a direct contravention of environmental impact assessment requirements. Such closed attitudes in a written assessment usually indicate that it is inadequate. (Raff 1997).
From my knowledge of the area there are at least two possible alternative locations. Neither have been considered. The first is by the small stream about 10 minutes walk from the saddle towards Lake MacKenzie, just after a switchback. This is a sunny, moderately sheltered small valley within the Hollyford face. It is not visible from Harris Saddle though only 10 minutes walk away. The second alternative would be to place the additional shelter on the west and slightly downhill side of the existing shelter. This would lessen the landscape impact on the view of the majority of trampers who approach Harris Saddle from the Routeburn Falls side after the sweeping traverse above the Lake Harris bluffs. The first alternative disperses the shelter users and stops Harris Saddle looking like a small village of intrusive structures with clashing architecture. Both would require Routeburn Walk Limited to build their own toilet and gain the necessary discharge compliance.
Consideration of alternative sites is a statutory test for concession structures and an important part of environmental impact assessment. It is not adequately addressed in the decision document. This omission alone is enough to invalidate the decision approving the shelter.
Good environmental information is essential to achieve the goals of the concession approval process, consistence with conservation purposes and absence of adverse environmental effects. Obtaining and reviewing this information is the crux of the effects-based or environmental impact assessment procedures of Section 17. This section reviews:
The Routeburn Walk Limited application dated 10/2/98 uses the Department of Conservation's standard form for concession applications - structures and facilities. This is an eleven-page document that partly requires filling in of necessary details such as contact addresses and partly prompts the applicant to fill in the space with a reference to an attachment that provides the detail such as the actual and potential effects. To explain further, the spaces provided are not intended to provide enough room for a complete answer. Routeburn Walk Limited answered some of these prompts with "N/A" or "known to the Department".
Otago Conservancy did not consider the initial application complete. A letter dated 28 May 1998 requested further information (Anderson Lloyd 1998). The solicitor of Routeburn Walk Limited provided further information about radio repeater sites, the Harris Saddle shelter addition, safety plans and waste water systems on 4 September 1998 (Anderson Lloyd 1998). The assessment of environmental effects report for the Harris Saddle addition was submitted after January 1999 as it notes consultation with runanga from December 1998 to January 1999 (RWL 1998).
Otago Conservancy did not adequately review the Routeburn Walk Limited assessment of environmental effects. The approval in principle report uncritically accepted the assertion that all Routeburn Walk Limited sewerage systems had no adverse effects as they had discharge permits (DOC 1999a). There would be no adverse effect from attaching another toilet to the Harris Saddle septic system as it had a discharge permit. I pointed out the false logic of that assertion in my submission. Having a permit is no guarantee of the correct functioning of a septic tank. For the duration of the concession application process the Department's Harris Saddle shelter septic tank was in breach of its discharge permit as effluent flowed out of a 40-mm pipe into an ephemeral stream instead of diffusing through a dispersal field.
In response the report to approve stated that submissions regarding sewage disposal are not relevant to the concession application as they are matters for the Southland Regional Council (DOC 1999b).
This is incorrect. The potential effects of Harris Saddle sewerage system are clearly relevant to the concession application. The private lunch shelter proposal includes an easement (a non-exclusive legal right of use) over the existing Harris Saddle sewerage system. An easement is a type of concession (Section 17Q(1)). The same statutory process and criteria apply for granting the easement. That is to say predicting effects, and avoiding or mitigating adverse effects, consistence with conservation management plans, and compliance with the Conservation Act.
Jeff Connell replied in writing with one new erroneous defence; that there was no adverse effect. (At the public hearing the Community Relations Manager, Ian Whitwell, had not doubted my information about the Harris Saddle toilet). My comments on sewage dispersal effects were "unfair and incorrect". Heavy winter snow had in October 1997 dislodged the end of the Harris Saddle dispersal pipe. This had been replaced (DOC 2000a). Therefore there was no adverse sewage effect at Harris Saddle, and if there was, Otago Conservancy repeated the previous stance that sewage discharges and resource consents are not relevant to concession applications (DOC 2000a). I presume this letter was written for the benefit of the Otago Conservation Board.
The letter was based on communication between Dunedin and Te Anau area staff in April 2000. A communication from Glenorchy staff which confirmed the sewage problems was suppressed by Jeff Connell. He denied the existence of the Glenorchy correspondence when I specifically requested it under the Official Information Act.
The existence of adverse sewage dispersal effects is conclusively supported by the copy of the Harris Saddle septic logbook. I have listed some entries in Box 1 below.
|
Box 1. Extracts from the Harris Saddle shelter septic tank logbook.
|
|---|
| "26/12/95 -went to hose at bottom - had to unblock holes, but they were blocking again rapidly. Definitely not just urine and H2O coming out - lots of brown stuff and mulched up loo paper" |
| "18/1/96 Bottom tank no 2 drained & extension pipe put on inside of tank. End cut off blocked drain pipe" (NB my emphasis. This action to cut off the blocked diffusal section of the pipe caused the breach of the discharge permit.) |
| "9/12/96 shit and gunk coming out of the bottom drain pipe" |
| "23/12/96 Outlet from bottom tank blocked - toilet paper, tampons and brown sludge appear to have filled the whole down line. Had to siphon bottom tank.." |
| "26/12/97 I drained the bottom tank and walked down to the end of the pipe - toilet paper, a pink chux cloth and a plastic bag noted. I moved the end of the pipe so it flows less directly into the nearby stream" |
The facts are that the diffusal section of the effluent drainage pipe was cut off on 18 January 1996. Undiffused sewage flowed out for four years in breach of both the 1994 discharge permit and the Southland Regional Water Plan permitted activity rules S.5.1.2 (which superseded the permit on its surrender in July or August 1999), until January 2000 when the end of the pipe was stopped. It is worth noting that Otago Conservancy was unaware of the correct regime (permitted activity) governing the septic discharge at the time of both the public hearing in October 1999 and the approval of the concession in December 1999.
The point of highlighting the Harris Saddle septic tank discharge was to show that a 'file review' environmental assessment is ineffective. A piece of paper (the discharge permit) does not guarantee clean green sewage. The discharge permit only states conditions and describes the monitoring system. To assess the effects of the Harris Saddle toilet sewerage system and to predict the effects of attaching an additional toilet (irrespective of no projected increase in use), Otago Conservancy needed to check the monitoring record, the Harris Saddle septic tank logbook. I had raised this issue in August 1999. Otago Conservancy did not consult field centre staff about the Harris Saddle toilet as part of the concession approval, but only when I wrote to the Otago Conservation Board, some four months after the concession was approved. That was closing the stable door after the horse had bolted.
The public still have had no satisfactory assurance from the concession renewal process that the septic tanks at Routeburn Walk Limited's lodges have no similar adverse environmental effects.
Routeburn Walk Limited supplied a Resource Management Act style 'assessment of environmental effects' report. It was not satisfactory in comparison to benchmark guidelines (MFE 1999a; Morgan 1999). The report failed to refer to the relevant conservation management strategies and plans, failed to identify the effects of reduction in naturalness, and failed to identify social effects on recreational use. There was no real evaluation of the significance of effects. Affected parties were not identified (trampers, the local community). Consultation had only been with iwi at the insistence of the Department.
In the letter of 10 May 2000 Jeff Connell appears to be arguing that the Department's review of Routeburn Walk's assessment of environmental effects or 'further information' is optional as the Department has the discretion to request these reports. This is incorrect. Effects, mitigation and environmental impact assessments are included in the matters that the Minister shall have regard to in considering an application for a concession (Section 17U(1) b, c & e, my emphasis).
The Department has a statutory duty to adequately review effects, mitigation and environmental impact assessments in the concession approval process. The Fiordland National Park Management Plan requires environmental assessment for all site-specific commercial recreation and tourism proposals (DOC 1991, page 52). Uncritically accepting the incorrect conclusions of the assessment of environmental effects does not satisfactorily discharge that duty.
The report to approve stated that "it is perhaps a moot point as to whether it (the inadequacy of the assessment of environmental effects report) is a relevant matter for a submission" (DOC 1999b).
This indicates a misunderstanding of environmental assessment. Public (and decision maker) scrutiny of applicants view of the environmental effects is essential as there is no formal audit procedure to counter the problem of bias in assessments of environmental effects prepared by applicants (Grinlinton 2000). The problem of bias, that applicants will present their proposals in the best light, is accepted for a number of reasons. The applicant bears the cost of the assessment. The decision maker can commission audits of assessments of effects at the applicant's cost (Smith 1996). See section 17S(4)(a) and section 17U(1)(e).
However the most important reason for the applicant preparing the assessment of environmental effects is that it enables environmental issues to be considered early in the planning stage of the proposal while alternatives can still be considered (Smith 1996). For Routeburn Walk Limited's shelter application there never any chance of that, irrespective of the quality of the content. The assessment of environmental effects report was submitted a year after the original application.
In summary the process was deficient. There is persuasive evidence of predetermination of the shelter decision. Public consultation was minimal and substandard. Consideration of alternatives was minimal and substandard. Consistence with conservation management strategies was incorrectly interpreted. The quality of environmental information in Routeburn Walk Limited's original application was inaccurate and inadequate, in spite of the 'lengthy dialogue' with the Department. The assessment of environmental effects report was so late in the process that it served no real purpose except being a retrospective justification of a decision already made. Spurious reasons(e.g. that sewage discharges are not relevant to the grant of a sewage easement) were given for disregarding submitters concerns. I am concerned that this is the standard of review of concession applications across the whole Department. I believe that the concession approval process warrants a national review.
Then there is the issue of Otago Conservator Jeff Connell's involvement. The Otago Conservation Board were fobbed off with issues of jurisdictional boundaries. Information on the Harris Saddle toilet appears to have been selectively filtered to defend the decision. Jeff Connell denied in writing the existence of the relevant correspondence with Glenorchy Field Centre. He answered an official information request for this correspondence with the factually incorrect statement that the correspondence did not exist. The correspondence indicates that he had instructed Richard Clarke to contact Te Anau and Glenorchy. Given the context, an unintentional explanation such as administrative error is unlikely. Otago Conservator Jeff Connell has behaved inappropriately for a senior public servant in permitting and being personally involved in such an unsatisfactory process. I consider that he is no longer responding objectively to the situation. The terse letter to me of 1 August, where he implies I am "distorting" reports and "misquoting" legislation, is evidence of this. His role in this decision needs specific review.
If only one of these factors were present it could be accepted as a minor unintentional oversight. In combination, these factors inexorably lead to the conclusion that the concession approval process was substantively flawed from start to finish.
Anderson Lloyd. (1998) Routeburn Walk Limited. Letter from Ted Lloyd to Community Relations Supervisor, Department of Conservation, Dunedin. 4 September 1998. (included as part of application material provided to submitters)
DOC. (1991) The Fiordland National Park Management Plan. Department of Conservation, Southland Conservancy, Invercargill.
DOC. (1994) The Mount Aspiring National Park Management Plan. Department of Conservation, Otago Conservancy, Dunedin.
DOC. (1996) The Visitor Strategy. Department of Conservation, Wellington.
DOC. (1999a) First determination report to the Area Manager Te Anau and Wakatipu (Approval in principle/decline) Application for concession by Routeburn Walk Ltd, Routeburn Track - Fiordland and Mount Aspiring National Parks. Department of Conservation, Otago and Southland Conservancy, Dunedin.
DOC. (1999b) Report to approve application for concession by Routeburn Walk Ltd. Department of Conservation, Otago Conservancy, Dunedin.
DOC. (2000a) Letter from Jeff Connell, Otago Conservator, to S Johnson, 10/5/00. 4 pages.
DOC. (2000b) An Introduction to Concessions and Permits. http://www.doc.govt.nz/about/conces.htm 25/5/00
Fisher, D. E. (1991) The resource management legislation of 1991: A judicial analysis of its objectives. In Resource Management. Brooker and Friend Ltd, Wellington, Vol. 1A, Intro 1-30.
Grinlinton, D. P. (2000) Integrated environmental assessment in New Zealand. Environmental and Planning Law Journal 17(3): 176-198.
Harris, B. V. (1993) Sustainable management as an express purpose of environmental legislation: the New Zealand attempt. Otago Law Review 8: 51-76.
Ministry for the Environment. (1999) A guide to preparing a basic AEE. Ministry for the Environment, Wellington.
Morgan, R. K. (1998) Environmental Impact Assessment: a Methodological Perspective. Kluwer Academic, Dordrecht.
Morgan, R. K. (1999) A structured approach to reviewing AEEs in New Zealand. Centre for Impact Assessment Research and Training publication no. 3. Department of Geography, University of Otago, Dunedin.
Munn, R. E. (1979) Environmental Impact Assessment - Principles and Procedures. Second Edition, Wiley, New York.
OCB (2000) Minutes of the Board meeting held on 5 May 2000. Otago Conservation Board, Dunedin.
Raff, M. (1997) Ten principles of quality in environmental impact assessment. Environmental and Planning Law Journal 14(3): 207-221.
RWL (1998) Concession application - structures and facilities. Routeburn Walk Limited application for concession (DOC form 4) dated 10/2/98.
RWL (2000) http\\:www.routeburn.co.nz/ Routeburn Walk Limited website 12/6/00
Smith, G. (1996) The role of assessment of environmental effects under the Resource Management Act 1991. Environmental and Planning Law Journal. 13(2): 207-221.
Williams, D.A.R. (1997) Environmental and Resource Management Law in New Zealand. Williams D.A.R. (ed.) with contributions from David Grinlinton and others. Butterworths, Wellington.
10/2/98 Concession application - structures and facilities. Routeburn Walk Limited application for concession (DOC form 4) dated 10/2/98. (includes Fourth Schedule Assessment of effects on environment.)
5/5/99 First determination report to the Area Manager Te Anau and Wakatipu (Approval in principle/decline) Application for concession by Routeburn Walk Ltd, Routeburn Track - Fiordland and Mount Aspiring National Parks. Department of Conservation, Otago and Southland Conservancy, Dunedin.
August 1999. Submission on Routeburn Walk Limited's concession application. S Johnson.
5/12/99 Report to approve application for concession by Routeburn Walk Ltd. Department of Conservation, Otago Conservancy, Dunedin.
21/12/99. Letter to S Johnson from Richard Clarke, Community Relations Officer Concessions, re decision concession application Routeburn Walk Ltd. 3 pages.
4/2/00. Letter to S Johnson from Ian Thorne (Te Anau Field Centre), 1 page.
6/4/00. Letter to Otago Conservation Board from S Johnson, enclosing Sewage happens at Harris Saddle, soft DOC environmental impact assessment paper, 6 pages.
1/5/00. Letter to Lou Sanson, Southland Conservator, from S Johnson, enclosing Sewage happens at Harris Saddle, soft DOC environmental impact assessment paper, 6 pages.
1/5/00. Letter to J Connell from S Johnson requesting Te Anau and Glenorchy correspondence re Harris Saddle sewage effects.
12/4/00. Fax to Richard Kennett, Field Centre Supervisor Glenorchy from Richard Clarke, Community Relations Officer Concessions Dunedin, subject: Harris Saddle shelter discharge of effluent, sent 13/4/00, 1 page.
13/4/00. Fax to 'Bruce', DOC Glenorchy, from Richard Clarke, Community Relations Officer Concessions, Dunedin. with attachments:
3) Letter to SRC from Ian Burford (DOC Southland) 21/7/99 requesting surrender of Harris Saddle discharge permit.
4) Southland regional water plan permitted activity rules S.5.1.2
5) Fax to Richard Clarke from Environment Southland, 12/4/00 and consent inpection notes.
13/4/00. Fax to Richard Clarke, Community Relations Officer Concessions, Dunedin, from Bruce Craigie, Hut Warden, Routeburn Track, subject: Harris Saddle shelter discharge of effluent, 2 pages.
19/4/00. Email to Ian Thorne, Te Anau, from Richard Clarke, Community Relations Officer Concessions, Dunedin, re Routeburn Walk Ltd concession Routeburn Track Harris Saddle effluent discharge permit.
27/4/00. Email to Richard Clarke, Community Relations Officer Concessions, Dunedin, from Ian Thorne, Te Anau.
9/5/00. Letter to S Johnson from Jeff Connell, Otago Conservator, 1 page.
10/5/00. Letter to S Johnson from Jeff Connell, Otago Conservator, 4 pages.
11/5/00. Letter to Jeff Connell, Otago Conservator from S Johnson re official information, Glenorchy - Dunedin correspondence, 1 page.
17/5/00. Letter to Jeff Connell, Otago Conservator from S Johnson re official information, the final detailed drawings of the shelter, 1 page.
30/5/00. Letter to Jan Riddell, Chair, Southland Conservation Board from S Johnson, 1 page and attachments.
30/5/00. Letter to S Johnson from Acting Chairperson, Otago Conservation Board, 1 page.
26/6/00. Letter to Otago Conservation Board from S Johnson, 3 pages.
24/7/00. Letter to Lou Sanson, Southland Conservator from S Johnson, 3 pages.
25/7/00. Letter to Jan Riddell, Chair, Southland Conservation Board from S Johnson, 3 pages.
28/7/00. Letter to S Johnson from Lou Sanson, Southland Conservator, 1 page.
1/8/00. Letter to S Johnson from Jeff Connell, Otago Conservator, 2 pages.
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