MEMO To: Malcolm Miller From: Paul Barrett Date: 25/7/2013 (superseding that dated 5/7/2013) Subject: WP120274T – AMENDMENT TO APPLICATION AFTER PUBLIC NOTIFICATION Background Application no. WP120274T was publicly notified with the group of Tukituki replacement consent applications on 15 June 2013. Submissions close of 12 July 2013. The applicant has advised that they wish to amend the rate and volume of water sought, so that it matches what was previously consented under their previous consent (WP030693T). The application notified sought 8.5 L/s and 5,000 m3/week. The amended application seeks 20 L/s and 5,000 m3/week. Application Chronology 29/11/2012 6/12/2012 6/12/2012 18/1/2013 22/1/2013 20/2/2013 3 Application lodged. Seeks 5 L/s and 3,000 m /week. Processing officer emails applicant to confirm rate and volume. Sought confirmation due to the departure form the previously consented rate and volume. Applicant responds: “Yes, it is correct, but I will confirm it with my lessee, who considers that the amount applied for is sufficient. In the meantime take it as read” Email from applicant to Tim Waugh. Seeking advice on how to amend application Processing officer emails applicant. Advises that amendments can be made, but should be done before end of February 2013. Also advised that applicant should check that the take rate (L/s) is sufficient for the irrigation equipment to be used. 3 Applicant advises by email that they wish to increase volume to 5,000 m /week. 27/3/2013 Processing officer meets with applicant. Amendment made to application. 3 Application no for 8.5 L/s and 5,000 m /week. The consents database was updated to reflect these changes. Letter sent advising applicants to check their application details and confirm any errors. 15/6/2013 Application notified. 4/7/2013 Letter received requesting application be amended. 27/2/2013 11 July 2013 Email from applicant confirming that the increase in rate is sought (to 20 L/s), but that a volume of 5,000 m3/week is now sought. O:\Hearings & Notifications\Tukituki 2013\McGreggor Re-Notification\WP120274T memo application amend.doc PAGE 2 OF 3 Key Issue Whether the proposed amendment can be considered without re-notification of the application Discussion A similar situation occurred during the Twyford consent process. A number of applicants sought to amend their application during the hearing, after it became apparent that they had applied for less water than they actually used. Phillip Milne provided the following advice on this matter. The decision on the Twyford consents concluded: In his legal submissions Mr Milne advised us that, in considering the requested amendments, we would need to decide in relation to each application (i.e. on a case by case basis) whether the amendments were within the scope of the original application, or should be subject to a new application. In that regard, he advised that we should consider:  Whether the environmental effects of the increases would result in a material increase in effects compared to the original applications; and  Whether, had the applications in their amended form been publicly notified, there would have been other people who would have submitted that did not submit to the original applications. Moreover, the Environment Court has formulated two principled approaches on whether amended applications need re-notification. The first principled approach is from Darroch v Whangarei District Council [A18/93] where the Court held that amendments to the application are only permissible if they are within the scope of the original application. If the scope is exceeded by increasing either the scale or intensity of the activity or by significantly altering the character or effects of the proposal, they cannot be permitted as an amendment to the original application and a fresh application would be needed. The second principled approach is from Haslam v Selwyn District Council (1993) [2 NZRMA 628] where Judge Sheppard held that the test to be applied regarding whether the amendment was outside the scope of the application was whether “the amendment... is such that any person who did not lodge a submission would have done so if the application information available for examination had incorporated the amendment. ” In the Twyford case, the panel went on to consider that the second principled approach had been satisfied, and that new applications and re-notification was not required. That was a slightly different situation as the applications were in the process of being heard. There was little opportunity for them to be re-notified without significant delay to the hearing and considerable additional costs. O:\Hearings & Notifications\Tukituki 2013\McGreggor Re-Notification\WP120274T memo application amend.doc PAGE 3 OF 3 The proposed amendment sees the rate of take increase by 11.5 L/s from what was notified (8.5 L/s). It is difficult to argue that his amendment is within the scope of the original application. The amendment extends the scale of the take, and will increase the effects of the proposal, and would be contrary to the first principled approach outlined above. It may not be contrary to the second principled approach. Two submissions have been received, one of which is on opposition the group of applications. These submissions focus on the cumulative effects of the applications, and so it is unlikely that the change proposed will have affected the nature of these submissions. Neither submission identities this application as of being of particular interest. I recommend that we re-notify the application. This is a cautious approach, but will make the amendment clear and transparent, and gives all potential submitters opportunity to comment on this via an amended submission or a new submission solely on WP120274T. This will ensure that the consent process is beyond reproach. I recommend that notice be served on the following parties, as required by the Regulations: - DOC - FGNZ - Ngati Kahungugnu Inc - Taiwhenua and Marae (as previously notified) - Central Hawke’s Bay District Council - Hastings District Council O:\Hearings & Notifications\Tukituki 2013\McGreggor Re-Notification\WP120274T memo application amend.doc