Conditions Relating to Existing and Future Management Plans and Certification

Large-scale projects often require significant refinement of design and construction concepts once the consent for the development is granted. A challenge with such applications is to provide for flexibility in design and construction whilst appropriately managing and mitigating effects without using consent conditions that are ultra vires because of the potential discretion needed.

It has become relatively common in these situations to either provide for subsequent management plans or some technical matter to be approved by a council representative after consent has been granted. However, this type of condition is not lawful because it leaves a decision to a subjective discretion.

Instead of requiring management plans conditions must provide clear performance or environmental standards that are to be certified by an appropriately qualified and experienced person as being achieved. This approach is appropriate for both simple and complex applications, with requirements responding to the issues to be addressed varying from being relatively minimal, to stringent and complex for complex developments.

Critical actual or potential adverse effects need to be identified, appropriately avoided, remedied or mitigated with conditions before a decision to grant is made and not left to be addressed via a future management plan. Management plans should be limited to non-critical operational processes that lie behind a performance or operational standard. For example, a certified Noise Management Plan could be used to complement noise limits specified by other conditions.

A number of councils provide design guides or technical plans as examples that comply with specific plan requirements. These can be used to assist in preparing conditions linking to Existing management plans or requiring Future management plans to be prepared. This approach can have significant benefits by enhancing the certainty of the consent process and its efficiency and effectiveness. The availability of such ‘standard solutions’ can sometimes remove the need to develop individual plans and remove the need for certification processes.

Existing management plans

Where an existing management plan is proposed as a consent condition, great care is needed to ensure there is clarity about exactly what aspects of that management plan should be included. Often environmental management plans include a range of measures, only some of which may be critical or relevant to a specific resource consent. In addition, management plans may incorporate both mandatory and optional procedures/processes.

It is preferable to include specific mandatory aspects of a management plan as consent conditions. Alternatively, if this is not feasible, the specific mandatory provisions can be referred to. If the plan is a public document, the document can be attached to the consent or the relevant provisions can be specifically referenced (for example, clauses X and Y of NZSABC, 2009). Certainty is essential both in terms of the level of adverse effects authorised and exactly what the conditions require of the consent holder.

If a detailed management plan is incorporated into a consent condition by reference, it may be appropriate to have a condition that makes it clear that if there is any inconsistency between the requirements of a management plan and another consent condition, that the consent condition has priority.

Future management plans

A future management plan can be required by a condition of consent where the management plan provides detailed information on how the consent holder will comply with other conditions of the consent

An example management plan condition is:

The consent shall be exercised in accordance with a management plan prepared by the applicant. The management plan shall include, but is not limited to the following:

1. reporting and auditing;

2. complaints handling and reporting procedure;

3. all measures that will be undertaken to mitigate potential dust effects to achieve compliance with condition X of this consent; and

4. a copy of the management plan shall be provided to the AB Council, Attention: Environmental Compliance Manager by 30 November 20XY.

Management plans can be used to clarify how compliance will be achieved but they should not be relied upon as the sole mechanism to provide reassurance that a critical performance or environmental standard will be achieved.

Conditions requiring preparation of management plans cannot guarantee that such a management plan will contain the effective measures wanted. It simply requires that there has to be a management plan with specific procedures and measures. In addition, such a condition is based on an assumption that methods are readily available to enable compliance with the condition. If it is not clear that such methods are available, then such a condition without other complementary certification conditions would not be appropriate.

Below are additional general guidelines for preparing conditions requiring preparation of future management plans:

• Where potentially significant adverse effects are a concern it would be appropriate to require a certification sequence to provide assurances that the effects of a development stay within defined limits. For example, this can include the certification (to specific requirements) of a design prior to construction and certification of the ‘as-built’ system. The qualification required for the certifier needs to be specified (eg, chartered professional engineer, a person with at least a XYZ qualification in noise measurement).

• Monitoring and reporting conditions that complement certification conditions are usually essential to ensure the consent holder reports on compliance with critical performance or operational standards.

• Monitoring and reporting conditions can be linked to specific results to automatically allow for a reduction in monitoring and reporting if the results demonstrate the effects are within specified limits. Conversely, a specific feedback control and/or review provision can often be appropriate to ensure that if the environmental effects are not within a specified range then, either a change must occur (eg, take less water, discharge less effluent), and/or a review can be initiated.

• It may be appropriate, where the potential adverse effects of an error in design or application of a method could be particularly significant, to require details of the certifier’s qualifications and technical experience to be submitted to the council in advance of certification. This allows the council to check the person’s credentials against the qualification/experience requirements.

• The council may include a condition where it can nominate a certification expert or determine whether one nominated by the consent holder has the specified qualifications and experience. Time frames for such determinations must be specified to avoid unreasonable delay and failure by the council to respond within the time frame.

• The technical information used for certification can be required with the certification to provide a documented ‘assurance chain’.

• Certification can be undertaken by a council officer or an agent. However, the qualification requirement must be specified and that person must meet that requirement. For many certification processes there can be a number of advantages in having certification undertaken by an independent person. For example, this can demonstrate independence to the consent holder and to other parties. Certification by a council officer or agent may involve taking on responsibilities that should be held by the consent holder.

• The greater the potential adverse effect on the environment of a proposal the greater the level of assurance needed about performance.

Example certification conditions

The table below provides an outline of the application of certification conditions on two types of consents, one with low potential adverse effects on the environment, and one with high potential adverse effects.