Many of the draft rules setting a national environmental standard for plantation forestry lack sufficient certainty, the New Zealand Law Society says.
The Law Society has released its comments on the consultation document A National Environmental Standard for Plantation Forestry. It notes that as the draft rules are intended to convey the policy intent of the proposed Standard and it is likely they will be subject to significant change or refinement.
It says the principle that a person should be able to determine on the face of a planning document whether or not an activity is permitted means that provisions within the planning document must be sufficiently certain.
Many of the proposed Standard's permitted activity conditions involve too much subjective discretion or judgement to properly be the subject of permitted activity conditions, the Law Society says.
It says it they are enacted in their proposed form, or something substantially similar, there is a material risk that they will be successfully challenged as being beyond the legitimate scope of permitted activities under the Resource Management Act 1991 and therefore invalid.
They could also result in conflicting judgements between forestry operators, consent or enforcement authorities, and other interested persons that may lead to enforcement action.
Commenting on the division of the draft rules into eight activity-specific parts and one general part, the Law Society says there is limited guidance about how local authority responsibility for monitoring, compliance and consenting functions is to be divided or shared.
This raises a number of issues, including a lack of clarity as to how each of the identified forestry activities relate to sections 9 to 15 of the Resource Management Act, and as to which local authority is to be the consent authority where permitted activity conditions are not satisfied.
"In the Law Society's view, the terms of the [Standard] should be framed so that the appropriate consent and enforcement authorities can be clearly identified," it says.
In other comments and suggestions on the draft Standard, the Law Society:
- Finds the use of "notes" which impose substantive controls is problematic and notes in other types of planning instruments are generally regarded as being only for informational purposes.
- Points to a risk of litigation arising from several provisions in the draft rules which do not usually appear in permitted activity conditions.
- Expresses its concern that the proposed Standard's approach of leaving the making of more stringent rules for identified outstanding natural features and landscapes or significant natural areas at the discretion of a council could enable councils to avoid existing, settled rules to protect these.
- Notes that the relationship between the Standard and the matters covered by section 6 of the Resource Management Act needs to be clearly and unambiguously defined to remove the "real risk" that the implications could go well beyond the forestry sector.