Total Outdoor Momentum has listed a 38 km running event called the Glenorchy Grunt for Saturday 5 May 2001 on two web sites (www.multisport.co.nz/calendar.htm, and www.queenstown-nz.co.nz/events.asp#May2001, both viewed 21/02/01). It is not clear to me if this is the same event or an alternative event in case the application is declined.
I have great sympathy for the staff who prepare first determination reports. The tasks involved (identifying effects of applicants proposals, assessing their significance, assessing adequacy of mitigation, considering consistence with purpose, considering consistence with plans) are complex. I am concerned that there appears to be a lack of guidance from the department. These important judgements seems to be largely up to the staff member preparing the first determination report. I do not wish to appear critical of those staff. My concerns are to protect the attributes of protected areas such as the Routeburn Track and to improve the quality of the concession approval process. My comments are intended to be constructive and I hope they are received in that light.
The application identifies one effect of the running event with 300 participants on other users (walkers, trampers, Routeburn Walk Limited clients) in E(1), p 4. 'Noise will be non-existent apart from heavy breathers. Visitors will be present but will be briefed by marshals of the event'. On page seven of the application Jason Caulton notes that when he has run the Routeburn the response from trampers is bewilderment.
I think that is a fair assessment of a tramper's encounter with a runner. The tramper may think "I'll be stuffed! Someone running the whole track! How do they do it? I wish I was that fit!". I don't think an encounter with one runner is an adverse effect. The tramper's view of an encounter with a running event with up to 300 entrants will be different. The novelty of the first encounter will have worn off by the third, or fourth runner. After ten runners I suggest a tramper will have lost count. By then the tramper's thoughts will probably be "Not more runners! Having runners go past every five minutes is a pain! How many more of them are there? I wish they weren't here!"
There is a simple way to answer the question 'will a running event have an adverse effect on trampers? Ask yourself 'would I want to tramp the Routeburn Track on the day of a running event with up to 300 entrants?' For me the answer is no, the experience I want to have would be affected.
The first determination report has considered the effects on other users in some detail in section 3.2(c) on page 4. Conflict with other users is recognised. 'With the track invariably busy in the first week following the booking season it will be important to avoid at least the first 7 days beyond the booking season.' I assume that this means that holding the running event with 300 participants in the first seven days after the end of the season (when it is 'invariably busy') would be a significant and therefore unacceptable effect.
The report estimates the number of users who would have been affected if the running event had been held on the first Saturday of May 1999. This is done by reference to the Routeburn Falls hut book of May 1999. From the Friday to the Sunday inclusive, fifteen people signed the book. There is no explicit conclusion whether this number of trampers is few enough for the effect of the running event on them to be insignificant. I believe the conclusion is implicitly contained in the second sentence of the section: 'This application does that'. That is to say the proposed running event avoids the invariably busy first seven days after the end of the booking season. Therefore the effects on the other users (trampers) will be insignificant as there are likely to be about fifteen trampers on the Routeburn on the day of the running event.
I question whether this is a sufficiently objective way of assessing the significance of the potential effects of the running event. There is clearly going to be a significant adverse effect (or conflict between types of users) on walkers and trampers (users) of the Routeburn Track if the running event is held. What reasonable basis is there for concluding that an adverse effect is not significant because of the number of heads counted? At which number of trampers does the effect of the running event of 300 runners change from significant to not significant? The 'ask-yourself' test leads me to conclude that the 'no effect' number of trampers is very low.
This is particularly relevant when the effect is on recreational use of a national park where natural quiet is specifically valued. The trampers who choose to tramp the Routeburn Track after the booking season (and before winter snowfall and consequent avalanche danger) have probably deliberately chosen that time to enjoy the Routeburn in early winter conditions with fewer people. For these people the Recreation Opportunity Spectrum (ROS) setting is more 'remote' from the summer booking season experience of the Routeburn Track. In terms of the Visitor Strategy user groups they are more likely to be 'backcountry adventurers' than 'backcountry comfort seekers'. Even if there are only fifteen 'backcountry adventurers' on the Routeburn on Saturday 5 May 2001, it is not a reasonable conclusion that the effect of encountering up to 300 running event participants is insignificant.
Furthermore the estimate of fifteen trampers is almost certainly wrong. On great walk tracks the majority of trampers do not sign the hut books. Hut book counts significantly underestimate track usage. Hut books will not record day walkers who may not go to the huts. Isn't Key Summit from the Divide one of the most popular day walks off the Milford road? As a former Routeburn Track hut warden I consider that it is extremely unlikely that there will only be fifteen trampers or walkers on the track on a fine Saturday in early May.
The first determination report has not presented sufficient reasonable arguments to conclude that the running event on 5 May 2001 will have only minor effects on other track users. I consider that the reasonable conclusion is that the running event will be an adverse effect on the other track users.
(2) The Minister may decline any application if the Minister considers that---The first determination report considers this test on section 3.8 on page 5 with the comment 'not applicable at this stage'. I note that information on the application is considered sufficient in section 2.4. Effects and avoidance measures have been more fully considered (in the context of s.17U(1)(b) and s.17U(1)(c)) in section 3.2 on page 3. However s.17U(2) is a separate statutory test with two steps. It should be separately considered in the first determination principle report. This has not been done.
(a) The information available is insufficient or inadequate to enable him or her to assess the effects (including the effects of any proposed methods to avoid, remedy, or mitigate the adverse effects) of any activity, structure, or facility; or
(b) There are no adequate methods or no reasonable methods for remedying, avoiding, or mitigating the adverse effects of the activity, structure, or facility.
Section 3.2.c seems to include the s.17U(2)(b) consideration of methods for avoiding adverse effects. Notification at visitors centres, track end signs and newspaper public notices are proposed to 'minimise conflict with other users'.
Presumably notification of the running event will result in trampers knowing about the running event and choosing to not to visit the Routeburn on 5 May 2001. There won't be the adverse effect of conflict between users as one group of users will be, in effect, displaced. In the Visitor Strategy (p 21) displacement of one visitor group is considered to be the result of conflict and the intrusion of increasing numbers. In other words displacement is an adverse effect on the enjoyment of the displaced visitors, not a measure to avoid or mitigate an effect.
The fact that the department considers it necessary to discourage trampers using the Routeburn on the day of the running event strongly suggests that there are no adequate methods for remedying the effects. Consequently the Minister should consider declining the application under s 17U(2).
S. 49. Concessions---Both sections require the Minister to consider whether the proposed concession activity is contrary to or inconsistent with the purpose for which the land is held. This is of course preservation as far as possible in the natural state for the benefit, use and enjoyment of the public (s.4. National Parks Act 1980).
(1) The Minister may, in accordance with Part IIIB of the Conservation Act 1987, grant a concession in respect of any park; and the said Part IIIB shall apply as if references in that Part to a conservation area were references to a park and with any other necessary modifications.
(2) Before granting any concession over a park, the Minister shall satisfy himself or herself that a concession---
(a) Can be granted without permanently affecting the rights of the public in respect of the park; and
(b) Is not inconsistent with section 4 of this Act.S.17U(3) The Minister shall not grant an application for a concession if the proposed activity is contrary to the provisions of this Act or the purposes for which the land concerned is held.
The National Parks Act 1980
4. Parks to be maintained in natural state, and public to have right of entry---
(1) It is hereby declared that the provisions of this Act shall have effect for the purpose of preserving in perpetuity as national parks, for their intrinsic worth and for the benefit, use, and enjoyment of the public, areas of New Zealand that contain scenery of such distinctive quality, ecological systems, or natural features so beautiful, unique, or scientifically important that their preservation is in the national interest.
(2) It is hereby further declared that, having regard to the general purposes specified in subsection (1) of this section, national parks shall be so administered and maintained under the provisions of this Act that---
(a) They shall be preserved as far as possible in their natural state:
(b) Except where the Authority otherwise determines, the native plants and animals of the parks shall as far as possible be preserved and the introduced plants and animals shall as far as possible be exterminated:
(c) Sites and objects of archaeological and historical interest shall as far as possible be preserved:
(d) Their value as soil, water, and forest conservation areas shall be maintained:
(e) Subject to the provisions of this Act and to the imposition of such conditions and restrictions as may be necessary for the preservation of the native plants and animals or for the welfare in general of the parks, the public shall have freedom of entry and access to the parks, so that they may receive in full measure the inspiration, enjoyment, recreation, and other benefits that may be derived from mountains, forests, sounds, seacoasts, lakes, rivers, and other natural features.
This is considered in the first determination report with the
comment "It is considered that the proposed activity is not
inconsistent with the purposes for which land is held under this
Act" (section 3.9, p. 5).
This conclusion is not supported by any further comment. A report
put into the public domain for consultation should contain sound
reasoning in support of its conclusions.
Mountain running is really just a different way in which "the public shall have freedom of entry and access to the parks, so that they may receive in full measure the inspiration, enjoyment, recreation, and other benefits that may be derived from mountains" (s.4(2)(e) of the National Parks Act 1980). The Total Outdoor Momentum application quotes similar sentiments from the Mount Aspiring National Park Management Plan. I agree that mountain running by individuals is totally consistent with national park principles. However the application is for a commercially organised running event. Jason Caulton appears to be attempting to make his living from such events. The running event is not an activity allowed as of right, it is a concession application, to be considered carefully under Part IIIB of the Conservation Act 1987.
If this application is granted the trampers on the Routeburn on the day of the event will not "receive in full measure the inspiration, enjoyment, recreation, and other benefits that may be derived from mountains", because their experience will be adversely affected. Therefore granting the application is arguably not sufficiently consistent with the purpose for which the land is held. The Minister should consider declining the application under s. 49(2)(b) of the National Parks Act 1980 and s.17U(3) of the Conservation Act 1987.
"Comment The MANMP considers the fact that there may be competitive events in the park. This application is therefore not inconsistent with the MANP Management Plan"
This is confusing 'consistent with' and 'provided for'. I don't think that this is the appropriate interpretation of s.17W(1). Plans typically consist of two-clause objectives where the first clause enables or envisages an activity and a second clause places some constraint on it. Evaluating consistence with a plan requires two steps. Is the activity 'provided for' by an enabling clause? If 'no', go to s17W(2). If 'yes', is the activity 'consistent with' all the 'second' clauses that place constraints on such activities?
17W Relationship between concessions and conservation management strategies and plansThe general thrust of the CMS and MP extracts summarised in the first determination report is that the Routeburn is primarily managed as a high use walking track. I think that is the key requirement that the running event application has to be 'consistent with'. This reinforces my views on effects of the event. The effects (and mitigation and consistence with purpose) should be assessed from the perspective of a high use walking track.
(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.
I am pleased to see that this reasoning is in the draft Fiordland National Park Management Plan:
"In general multi-sports events should be prohibited except when there is an established and accepted use or when the event is small scale such as a local community fun run".
"Competitive sporting events will not be allowed on the Routeburn Track during the walking season".
While noting that the Total Outdoor Momentum event is not a multi-sport event, but a competitive mountain running event, the context clearly applies. There are no precedents for running events on the Routeburn Track. The Total Outdoor Momentum event, if approved, will set a precedent. It is not an established or accepted use. It is not a local community run organised, for example, as part of the annual Glenorchy Race Day.
The first determination report concludes on page 7 that:
"The proposed date of the event (5/5/01) means that the event is outside the walking season and is therefore consistent with these provisions".
I presume that 'booking season' is meant, not 'walking season' as the Routeburn Track can still be walked after the end of the booking season. However, my substantive point is that the conclusion is wrong. The fact that the date of the event is outside the booking system season means only that the application is not expressly prohibited. It does not mean that the event is consistent with that management plan provision. This is not sufficiently established.
It seems clear to me that granting the Total Outdoor Momentum running event application will not be consistent with the two extracts quoted above from the draft FNP plan. The first determination report has not presented sufficient reasonable arguments to conclude that granting the application is consistent with the relevant conservation management strategies and plans. The decision maker should consider declining the application under s 17W(1).
Even if the application was considered consistent, the conservation management strategies and plans indicate that the effects of the application should be considered adverse under s17U(1)(b) and not able to be adequately avoided or mitigated under s17U(2)(b).
17T(3) Nothing in this Act or any other Act shall require the Minister to grant any concession if he or she considers that the grant of a concession is inappropriate in the circumstances of the particular application having regard to the matters set out in section 17U of this Act.
The Minister, after considering all the s 17U matters, should step back from the details and consider whether or not the grant of the concession is innappropriate. This is an existing statutory test and should be considered in the first determination report.
I consider that granting the Total Outdoor Momentum running event application will be inappropriate. There will be effects on other recreational users (trampers walkers). These effects cannot be adequately mitigated (except by displacing trampers). The application is not sufficiently consistent with the national park purpose as 'the inspiration, enjoyment, recreation' of the public will be affected. The application is not sufficiently consistent with conservation management strategies and plans which emphasize management as a high use walking track and prohibit such events during the walking season.
I submit that the Minister should decline the application.
Simon Johnson