Dear Sir,
Further to my letter of 23 April 2003 I have received a copy of the report dated 28 March 2003 to approve the Routeburn Rage 2003 concession application. I enclose a copy. In the covering letter dated 22 April 2003 Ian Whitwell confirms that the signed copy of the report is the file record of the decision not to notify the application.
Having read this report I wish to add the following grounds of complaint to my letter of 23 April 2003.
A discretionary power under s 17T(5) of the Conservation Act 1987 to decide on public notification having regard to effects of a proposed concession activity was exercised unreasonably and/or was exercised on irrelevant grounds and/or on the taking into account of irrelevant considerations in terms of s 22(2) of the Ombudsman Act 1975.
The report of 28 March 2003 confirms that the reasons for non-notification are the 2002 social impact survey, the experience of the 2002 race and that the potential adverse effects can be avoided, remedied or mitigated by conditions such as advance notification.
The report also comments on my letter of 11 March 2003 about the 2002 social impact survey and the precautionary approach to increasing visitor numbers set out in the Department’s Visitor Strategy. The report states on page 7 in relation to my comments on the small sample size:
“The department would not be justified in using the findings of the report to conclude that the race had an adverse impact”.That was not what I was suggesting they do. The Department is concluding that a survey with a small sample size can be acceptable evidence of minor or no effect but that it can not be acceptable evidence of adverse effect. This contradictory viewpoint effectively reverses the burden of proof set out in the 1996 Visitor Strategy. The standard of proof set out in that document is a clear demonstration that increased numbers pose no significant problem (p 40). This standard of proof has not been achieved and the Department should then have followed the default path of notification, or obtaining more information or declining the application.
It is unreasonable of the Department in considering the effects of the proposed race to ignore the Visitor Strategy document and to adopt a burden of proof other than requiring a clear demonstration that the proposed race would have no significant adverse effects.
Irrelevant effects considerations A discretionary power under s 17U(1)(b) and (c) of the Conservation Act 1987 to have regard to the effects of the activity and to measures that mitigate adverse effects was exercised unreasonably and/or on irrelevant grounds and/or on the taking into account of irrelevant considerations in terms of s 22(2) of the Ombudsman Act 1975.
Effects and mitigation measures are a mandatory consideration for the Minister’s delegate.
“17U. Matters to be considered by Minister-The report to approve the 2003 Routeburn Rage implies that the effects will be ‘minor’ as there will be fewer trampers in early May than in the summer booking season for the Routeburn Track.
(1) In considering any application for a concession, the Minister shall have regard to the following matters:
(a) ...
(b) The effects of the activity, structure, or facility:
(c) Any measures that can reasonably and practicably be undertaken to avoid, remedy, or mitigate any adverse effects of the activity:
(d)...”
“The date of the event is May 3 2003 which is outside the main Great Walks booking season (...October to mid April). There will therefore be significantly fewer people potentially affected...” (page 5).
The application is not for a run during the summer booking season. The number of trampers on the Routeburn Track in summer is not a relevant consideration. As the dates of the race were specified in the application (May), the effects and mitigation of alternative dates (the (the summer season) are hypothetical and therefore irrelevant matters. Relevant mitigation measures under s 17U(1)(c) must be specific to the date proposed in the application. Therefore the decision-maker took into account irrelevant considerations.
The previous two approval reports also concluded that lower numbers of trampers in May than in the summer booking season equated to satisfactory or reasonable mitigation of the effects of the Routeburn Rage. The report dated 14/12/01 approving the Routeburn Rage 2002 (page 4, paragraph 8) stated:
“By staging the event outside of the main booking season there will be significantly less people potentially affected than if it were held in the main season. Thus holding the event outside of the main season is a reasonable and practicable way of mitigating any adverse effects.”
The same conclusion was also reached on page 5, paragraph 1 of the report dated 12/4/01 that approved the Routeburn Rage 2001.
The Department has unreasonably and incorrectly considered displacement of trampers/walkers from the Routeburn Track by advance notification of the Routeburn Rage 2003 to be a mitigation measure instead of an adverse effect.
Page 5 of the report to approve of 28 March 2003 states:
“In order to lessen any potential effects the applicant will be required to advertise the event widely so that walkers who may be particularly averse to such an event will have the opportunity to plan to walk the track at another time.”
Special condition 7 of the concession describes the detailed public notices the applicant will prepare.
Such notification will result in displacement. Displacement as a consequence of crowding and reduction in solitude on tramping tracks is an adverse effect on the recreational experience sought by visitors to national parks (DOC Visitor Strategy 1996, p 21; Parliamentary Commissioner for the Environment 1997. Management of the environmental effects associated with the tourism sector: review of literature on environmental effects. Wellington, p 27)
The Southland Conservation Board believed that many people value the opportunity to tramp the Routeburn Track in May outside the restrictions of the booking season and that there were few weekends available before snow brings avalanche danger (p 10, section 9 of the report to approve the 2002 Routeburn Rage dated 13 December 2001). The Board considered there would be adverse social effects on these people if the race was held.
My final point is that if the effects of the Routeburn Rage were in fact minor or adequately mitigated, then there would be no need for advance notification of the event to trampers and walkers. The need for such notification is evidence that the social effects would be more than minor and would not be adequately mitigated.
Thank you for your consideration
Yours sincerely
Simon Johnson
Enclosed:
Letter from Ian Whitwell 22 April 2003
Report to the Area Managers Wakatipu and Te Anau Application for concessions by Jason Peter Caulton Limited (Total Outdoor Momentum) 28 March 2003.