Concessions Processing Review Department of Conservation Final Report April 2010

Final RepoRT—apRil 2010

Concessions Processing Review

Department of Conservation

Concessions Processing Review

Department of Conservation

Final RepoRt—apRil 2010

Prepared by

The Concessions Processing Review Working Group

Published by

Publishing Team

Department of Conservation

PO Box 10420, The Terrace

Wellington 6143, New Zealand

Cover photos (left to right): Wind turbine, Wellington (Sam O’Leary); cessna over Wilkins River Valley,

Mount Aspiring National Park (C. Rudge); tourist boats, Milford Sound; kayaks, Anchorage, Abel Tasman

National Park (Andy Dennis); cattle grazing on sand dunes, Te Paki, Northland (C. Rudge);

mountain biking.

© Copyright April 2010, New Zealand Department of Conservation

ISBN 978–0–478–14757–5 (hardcopy)

ISBN 978–0–478–14758–2 (PDF)

F o r e w o r d

Conservation in its New Zealand context is about places of great natural

beauty that are still largely untouched; unique plants and animals; adventurous

recreational opportunities; and a rich, living cultural history. It is about the

things that define us as a nation and give us pride as a people. These are

grand and inspiring notions that lay the foundation for our work. At the

hard-edge, they translate into conservation sitting at the base of our livelihood

and prosperity. There are some four and a half thousand businesses on public

conservation land. They range from small, single-person enterprises to

critical infrastructure such as energy generators and large business interests,

particularly in tourism, which makes a major contribution to regional

economies and the nation’s wealth. The profitability of each is dependent

to a greater or lesser extent on how the department of Conservation deals

with them.

we have looked at our processes and systems for concessions, and asked

whether we apply them consistently, and whether we are operating in a way

that maximises the benefits consistent with conservation values. The answer

is that we can do better, and in some cases a whole lot better.

This report sets out those findings. But more importantly, it sets out how

we are going to address the issues that the review surfaced. That action

plan will be implemented, and it will be monitored. It will demand a greater

accountability of the department to be more aware and responsive to the

needs of business. It will also require business to sharpen its approach and

pay better attention to the reality that its profitability is tied to the state of

New Zealand’s natural, historic and cultural heritage. The broad context

instructing this review and the actions arising from it is that conservation is

good for business, and business is good for conservation.

Al Morrison

director-General of Conservation

Foreword 3

executive summary 7

Part 1 Key changes 10

1.1 System wide changes 10

1.2 What this means for the Department 15

Part 2 Context 17

2.1 Project purpose and scope 17

2.2 Purpose of concessions 17

2.3 Approach 18

2.4 Information 19

2.5 Consultation 20

Part 3 Better process 21

3.1 Timeframes 21

3.2 Information requests 30

3.3 Consultation 33

3.4 Notification 37

3.5 Hearing 41

3.6 Reconsideration 44

3.7 Section 17T(2) 52

Part 4 effective support 54

4.1 Style and culture 54

4.2 Performance measurement 56

4.3 Preferential rights 57

4.4 Planning 61

4.5 Streamlining and standardisation 66

4.6 Allocation methods 71

4.7 existing tools and technology 76

4.8 Training 79

4.9 Concessionable activities 82

4.10 Terminology 84

4.11 Delegations 86

4.12 Structure 87

4.13 Management of concessions 92

4.14 Other issues 93

CONTeNTS

Part 5 Implementation 94

Part 6 Glossary 99

Appendix 1

Proposed improvements—statutory or non-statutory change 100

Appendix 2

Revised concessions process diagram 104

Appendix 3

One-offs, conforming and re-issues diagram 107

Appendix 4

Run of the mill, non-notified diagram 109

Appendix 5

Consultation 111

Appendix 6

Working Group members 112

7

e x e C u T I V e S u M M A R y

The Concessions Review 2009 was established to consider if the Department’s

processes for concession applications need to change, to make them more

effective and efficient at delivering decisions meeting the needs of applicants

and conservation. The Minister of Conservation asked for the review to

consider whether processes required simplifying and streamlining, whether

more timely decision making is necessary, whether more transparency and

certainty is needed, and whether compliance costs could be reduced.

This report outlines the key changes the Department will make to ensure a

concessions processing is effective and efficient; and the matters the review

Working Group considered in undertaking the task outlined above.

There is considerable scope for improvement throughout the concessions

process, but particularly in the timeliness and efficiency of decision making

on concessions; the level of transparency and certainty the process offers

applicants; and the Department’s organisational behaviour regarding

concessions work. The review outcomes reaffirm, however, the importance of

concessions as a tool for managing activities on public conservation land and

enabling appropriate business opportunities, while delivering conservation

outcomes and a return to the public.

The Department will revise the concessions process to ensure it is a single

process designed to deal with all applications, with variable paths at key

points for simple applications that can be more rapidly processed and for

more complex cases requiring public notification. This new process will be

ready for implementation by 1 July 2010.

each step in the new process is allocated a maximum timeframe, which

will be mandatory. The timeframes have been designed, in consultation

with departmental concessions staff, to provide the shortest time allocation

that could consistently be complied with for the normal run of concession

applications. Implementing these timeframes will offer concession applicants

significantly improved certainty about what to expect from the process.

Combined with better communication, this will improve transparency by

clarifying the Department’s and applicants’ responsibilities at each step.

Opportunities to extend processing timeframes and ‘stop the clock’ on

processing are provided for where necessary to ensure information and

consultation requirements can be met. These opportunities are, however,

more tightly defined and controlled than in the current concessions process,

as repeated requests for further information from applicants and ‘pauses’

for consultation are common causes of undue delay. The Department

will be limited in most cases to a single request for further information

from a concession applicant that ‘stops the clock’ while the Department

awaits the applicant’s response. The exception is for notified applications

where submissions may raise issues requiring further information and a

further such request is enabled. All extensions of standard timeframes

will require justification against specified criteria and a decision by an

accountable manager.

8

Public notification of certain concession applications has an important

place in the process, reflecting the public nature of conservation land.

Increased discretion over notification of licences is provided for in a

Regulatory Improvement Bill now before Parliament. Changing from

notifying an ‘intention to grant’ a concession, to notifying the application

with an accompanying officer report would eliminate the preliminary

decision currently made before notification, which has contributed to a

common view that public consultation is of marginal relevance to concession

decisions. This will require a change to the law. There will also be changes to

hearing procedures, requiring the decision-maker to be present and routinely

providing an opportunity for the applicant to respond to matters raised in

submissions.

To address concerns that the existing internal departmental process for

reconsideration of concession decisions is insufficiently transparent,

reconsiderations will be undertaken by an independent authority. This

will comprise a departmental officer, a member of the conservation board

for the conservancy in which the application was made, and a ministerial

appointee. A panel will make a recommendation to the Minister or delegated

decision-maker.

It is critical that introduction of a redesigned process is accompanied by

more effective organisational support and systems. This will be driven by

a step change in the value the Department attributes to concessions work,

to ensure it is widely recognised and treated as core business. Leadership, a

new emphasis on relationship management skills in concessions work, and

more effective performance measurement will be necessary.

Consistent with an earlier review of concessions processing, more specific

direction in statutory management plans on desirable outcomes at places

would enable quicker and clearer decisions on concessions. Too often the

concessions process effectively substitutes (poorly) for place-based planning,

causing uncertainty and delay. The recent introduction of conforming

schedules effectively creates ‘permitted activities’ for which concessions can

be granted rapidly, and these will be extended to cover more activities.

The Department’s requirements of concession applications can be excessively

detailed and there is a tendency to ‘re-invent the wheel’ too often in setting

conditions on concessions. Simplified application forms and report templates,

and more consistent use of standard conditions on concessions will occur.

The Department has limited legal scope and organisational capability for

running effective allocation processes for concessions in competitive

situations. It can tender rights to apply, but not concession opportunities

themselves. As concession activity grows, the need for recourse to a

wider range of allocation mechanisms will become more pressing and a

range of options will be investigated, including through pilot studies. The

establishment of the Commercial Business unit will increase capability in

running effective tenders.

9

A vital tool for implementing a revised concessions process and monitoring

the Department’s performance is the Permissions database. Identified issues

with the functionality of Permissions will be fixed as a matter of priority, so

that use of the database can become standard throughout the Department.

The existing structure can bear some responsibility for the problems that

are experienced in concessions processing at present. The decentralised

nature of the Department has resulted in SOPs and guidelines not being

used in a consistent manner. The review Working Group concluded that if

the Department is prepared to invest in making the existing decentralised

structure work with improved systems and by enforcing national consistency,

it is not necessary to undertake significant structural change. The review

Working Group also concluded that if the existing organisational system posed

too many impediments to enable more efficient and effective processing of

concessions, then new models should be considered.

Since the concessions processing review was instigated, the Department,

through its Prioritising for the Future Project, has identified a workstream

focusing on shared services. This project will consider organisational

structure matters raised above.

Regardless of the structural models used to process concessions, it is noted

that in North Island conservancies, where relatively low levels of concession

activity mean fewer staff with expertise in this area, there can be issues

with a lack of ‘critical mass’, which can be addressed by consolidation. New

training in the project management skills necessary to lead teams dealing with

concession applications for large projects such as energy and infrastructure

developments is also required. The need for a new position providing national

support and training for concessions will be scoped.

The review has identified a series of potential amendments to the

Conservation Act to make the process work more efficiently. It is important

to note that the review concluded that significant improvement can be made

to process efficiencies without amending the law. effort will be placed on

making these improvements.

10

Part 1 Key changes

There is considerable scope for improvement throughout the concessions

process, particularly in the timeliness and efficiency of decision making;

the level of transparency and certainty the process offers applicants; and

the Department’s organisational behaviour regarding concessions work. The

review has reaffirmed the importance of concessions as a tool for managing

commercial activities on public conservation land and enabling appropriate

business opportunities, while delivering conservation outcomes and a return

to the public.

The Department is committed to ensuring concessions work is integral to

people valuing conservation. The Department’s senior managers will lead an

increase in the value attributed to concessions management by communicating

the importance of change and following up through performance and

operations management. This is the primary method for ensuring any process

changes implemented are effective.

A new concessions process will be implemented on 1 July 2010, which will

provide a consistently applied, focused and transparent system.

1 . 1 S y S T e M W I D e C H A N G e S

Many changes will be implemented to improve the concessions processing

system across the Department. Some of these are reliant on legislative

amendment. It is important to note that the review concluded that significant

improvement can be made to process efficiencies without amending the law

(refer to Appendix 1). effort will be placed on making these improvements.

Timeframes and process

The new concessions processing system will:

Impose a new process and timeframes in accordance with those identified 1.

in Appendices 2–4. The timeframes are mandatory and will only be

extended in defined circumstances. The existing timeframes for re-issues,

one-off applications and conforming concessions are retained. Timeframes

for large projects can be negotiated and agreed with applicants, though

are generally expected to be completed within 1 year.

Include an application fee discount policy. Should the Department not 2.

meet the timeframes outlined in the new SOP1, a percentage of the

application fee will be returned to the applicants.

Better audit and monitor concessions processing. New performance 3.

measures will be developed to effectively track timeliness and other key

improvements. Adequate reporting in monthly operating reviews will

occur with the aim of tracking progress.

1 This and subsequent acronyms are defined in Part 6 Glossary.

11

Result in the following specific changes: 4.

Change the notification period of submissions from 40 to 20 working a)

days. This will require a law change.

Focus on rejecting applications where there has been applicant inaction b)

after 3 months. This may require a law change.

Change the presumption of what is a complete application to apply c)

at the point of meeting s17S(1) and (2) regarding application content.

This may require a law change. Require the application fee up-front.

enable the lead conservancy for multis to have authority to move d)

concessions through the process regardless of whether other

conservancies have responded. List places/activities for each

conservancy where multis are not appropriate. These will be

independently verified by National Office. This will be included on

the Department’s website. These changes can be immediate.

Manage further information requests to enforce time limits on both e)

the Department and the applicant, with only two ‘stop the clock’

opportunities available. This will be limited to the first further

information request at the beginning of the process and, if needed,

after submissions have been received.

Improve effort in pre-application discussions. The SOP will be f)

amended to remove the requirement for only enabling 1 hour of free

pre-application consultation. This will be aided by including good

practice examples of applications and conditions for commonly applied

for applications on the Department’s website, and by encouraging

applicants to use trained and competent consultants.

encourage conservation boards to use sub-committees with delegated g)

authority to provide feedback on concessions outside of the normal

timeframes the board meets. establish triggers with each conservation

board about the concession applications they comment on.

Develop triggers with iwi on when consultation should occur and h)

encourage applicants to undertake pre-application discussions with

iwi as a pre-requisite to submitting the application.

Provide an extension of time for iwi consultation under specific i)

circumstances made under delegated authority.

Permissions database

The Permissions database will be used consistently across the Department. 5.

A project will be undertaken to identify key parts of the database

requiring mandatory use. The database will provide key information for

the development of new performance measures that accurately measure

process actions. Immediate improvements are required to this database

to make it more user-friendly and to address the requirements of the new

process, while in the medium- to long-term, linking of the Permissions

database (or its replacement) with online applications, electronic billing

and provision of activity return forms should be scoped.

12

Notification

Process around notification will be improved through: 6.

Developing guidance notes on the exercise of discretion in the public a)

notification of concessions.

Advertising notified concessions on the Department’s website and b)

through email notices, as well as in newspaper public notices.

Including notice of hearing dates within the public notification c)

where possible.

enabling notification of a concession application with an officer report d)

on the application, rather than an ‘intention to grant’. This will require

a law change. Should this occur, an opportunity should be provided

for the applicant to withdraw the application before notification if the

officer report on the application recommends that it be declined.

Hearings

Hearings will improved by: 7.

encouraging pre-hearing meetings. a)

Developing better guidance material on how to run the hearing and to b)

exercise discretion to extend possible hearing dates.

Providing the applicant with a right of reply at the end of the c)

hearing.

ensuring a delegated decision-maker is present at the hearing.d)

Reconsiderations

Non-statutory guidance on reconsideration will be revised to:8.

Clarify that reconsideration is a complete reprise of the original a)

decision.

Provide for reconsideration to be undertaken by a body comprising b)

a departmental officer, a member of the conservation board for the

conservancy in which the application was made (nominated by the

board), and a ministerial appointee, who are responsible for reaching

a consensus on a recommendation to the Minister. Further work will

be undertaken to ascertain whether this approach should apply to all

reconsiderations.

Apply a timeframe to a reconsideration that parallels the timeframe for c)

processing a new concession application.

Provide for submitters to be given further opportunity to comment if d)

reconsideration includes new information relevant to issues raised in

their submissions.

Provide for an application for reconsideration to be rejected if it is more e)

appropriate for the applicant to submit a new concession application

as a result of the volume and nature of any new information provided

by the applicant.

When an application for reconsideration of a decision is sought, it must be 9.

made within 20 working days of the applicant’s receipt of a final decision

on their application. This requires a law change.

13

Section 17T(2)

Provide an opportunity to enable the Minister to decline an application 10.

where it would be more appropriate to run an expressions of interest

process or offer an opportunity through tender. A timeframe for doing

this will need to be specified. This requires a law change to s17T(2) of

the Conservation Act.

Provide an opportunity to decline an application where a Conservation 11.

Management Strategy (CMS), Conservation Management Plan (CMP)

or national park plan is formally under review or amendment and the

application may be contradictory to the outcome of the content of the

planning document. This requires a law change to s17T(2) or s17W(3)

of the Conservation Act.

Change the delegations to ensure GM sign-off on application of s17W(3), 12.

which relates to declining a concession on the basis that it is more

appropriate to review a planning document.

Develop guidelines to assist with interpretation of ‘inconsistent with’.13.

Incumbents

The first in, first served principle will be applied in managing concessions. 14.

Preferential placement in the processing order will not be encouraged.

Recognising incumbents who are professional will be encouraged by: 15.

Not enabling the ‘rolling on’ of concessions and introducing a non-a)

statutory requirement that conservancies alert concessionaires of the

expiry date (taking a proactive approach).

Providing similar provisions to s124 RMA to provide for concessionaries b)

to continue operating if an application is lodged 6 months prior to

expiry. This requires a law change.

Proactive planning

efficiencies in concessions processing can be aided by good proactive 16.

planning. The Department needs to improve proactive planning by:

Providing clearer identification of opportunities through well defined a)

outcomes of place. Certainty for decision-makers and applicants

is required.

Providing clear direction for the development of conforming b)

schedules.

Providing opportunity to enable for permitted activity schedules in c)

planning documents. This requires a law change.

undertaking pilot studies of proactive integrated planning, which d)

involve the identification and scope of concession opportunities,

quantify potential economic benefits and proactively allocate these

concession opportunities.

Providing improved national planning and direction on specific e)

issues.

Considering amending conservation law to enable a quicker and f)

smarter way of carrying out reviews and amendments to planning

documents.

14

Streamlining and simplifying

Streamlining and simplifying processes will occur by: 17.

utilising the online conforming schedule process much more a)

widely. This is considered a priority for rationalising effort, creating

efficiencies and reducing costs for applicants.

Investigating further the use of regulation/bylaws or schedules for b)

enabling ‘permitted’ activities for what would otherwise require a

concession.

utilising national concessions where they are applicable. c)

Amending officer report templates and application forms to reduce d)

duplication and remove unnecessary information. Develop and

use standard special conditions. These will be placed, along with

concession contracts, on the Department’s website.

Allocation tools

use of contemporary allocation tools will be encouraged. The following 18.

is required:

Investigate the range of tools and determine what, if any, legislative a)

change is required to implement these tools.

Develop a register of existing opportunities, which should be included b)

on the Department’s website.

Amend s17ZG to enable for the tendering of the opportunity, rather c)

then the right to apply.

Develop improved guidelines on tender processes. d)

Concessionable activities

Clarity around whether some activities require a concession is necessary. 19.

This can be achieved by:

Making it clear that ‘core educational activities’ do not require a a)

concession, and defining ‘core educational activities’. This requires

a law change.

Reviewing the Sporting events Guidelines to better reflect legal b)

interpretation regarding gain and reward. Further policy guidance

on other criteria such as the legal entity, the size of the event and

reasonable cost recovery should be included in this review.

Terminology

Modification of some of the Department’s terminology is required: 20.

Rename ‘high impact’ to become known as ‘notified’; ‘low impact’ to a)

become known as ‘non-notified’; and ‘First Determination Report’ to

be known as an ‘officer report’.

Change the SOP to ensure one-off permits are a once only situation. b)

They can only be applied for once every 3 years.

Change the definition of licence to remove the reference to c)

non-exclusive interests in land; and repeal the requirement for a

permit. This requires a law change.

15

The Department’s website

utilise the Department’s website to:

Improve the information on the Department’s website and ensure the 21.

concessions page is more accessible.

enable online applications for all applications and link with the 22.

Permissions database. enable online financial returns and activity

returns.

Provide links to concessionaires’ websites. 23.

1 . 2 W H A T T H I S M e A N S F O R T H e D e P A R T M e N T

The implementation of this work will be led by GM Research and Development,

with each GM being responsible for individual tasks as identified in Part 5 of

this report. To carry out this work, the organisation will do the following:

Apply the new process and tools consistently across the Department. 24.

This includes the use of the Permissions database, SOPs and guidelines.

Reconsider how each conservancy manages the concessions process 25.

internally to meet new timeframe and process expectations.

Create a new role focusing on National Office support and training for 26.

concessions. This will address all concession-related matters, not just

recreation and tourism. A business case identifying the purpose of the

role, where it should be located and how it is to be created is required.

Change the delegations to give level one managers authority to make 27.

decisions on one-off permits, re-issues, conforming concessions,

non-notified permits, further information request and possibly extension

of time.

Delegate the decision making for projects of national interest to the level 28.

of GM.

utilise the skills of the new Commercial Business unit, particularly with 29.

regard to:

Development of key client managers for the major revenue-generating a)

concessionaires.

Direction on the commercial elements of concession negotiations.b)

Give external customer relationship management skills higher priority in 30.

the recruitment, training and professional development of concessions

processing staff.

Investigate whether the existing recruitment strategies around employing 31.

people working in concessions is resulting in the right set of skills. Adapt

job descriptions to reflect skills in relationship management, business

understanding and good processing skills.

Develop appropriate performance measures to reflect the new process. 32.

These will form the basis for effective quantitative monitoring to measure

improvement in the timeliness of processing. This will be reflected in

the MOR process.

16

Training

A targeted training programme for concessions management will 33.

be developed that addresses the needs of various levels within the

organisation. This will address technical changes that may result out of

the review; and, most importantly, will provide an avenue to achieving

behavioural change around the importance of concessions to the

organisation. Project management should also be a focus. The programme

will be on-going. Opportunity for workshops is also important.

Structure

Structural change on its own is not seen as the key driver for implementing 34.

a more effective and efficient concessions process. The following is

noted:

There are relative advantages and disadvantages with conservancy-a)

based and centralised structural options.

The existing decentralised organisational structure has resulted in b)

inconsistencies with concessions processing and management.

There is a lack of ‘critical mass’ in concessions capacity in North c)

Island conservancies, which could be addressed through processing

concessions in fewer, but larger, more skilled units.

The processing of applications for conforming schedules should be d)

allocated to one or two conservancies to create efficiencies.

Any matters relating to significant structural change will be considered as

part of the Department’s Prioritising for the Future Project.

17

Part 2 Context

2 . 1 P R O J e C T P u R P O S e A N D S C O P e

The Minister of Conservation requested that the Department review its various

statutory processes in late 2008. Concessions processes were identified as a

priority for review.

The scope of the project focused on confirming and/or developing an

appropriate processing framework for concessions that enables business

consistent with conservation outcomes and the purposes for which the land

is managed. It considers the development of mechanisms to ensure efficient

and effective processing of concessions.

In particular, it focused on whether:

Concessions processes (under Part 3B of the Conservation Act) need •

simplifying and streamlining and, if so, how.

More timely consideration of concessions (under Part 3B of the •

Conservation Act) is necessary, and, if so, how.

Integration with Resource Management Act processes is appropriate and •

workable for nationally significant projects, and, if so, how this should

occur.

The project was not tasked with specifically identifying reductions in cost

for the Department in processing or managing concessions. The project

scope did not consider changes to the fundamental decision-making criteria

on which concessions are based.

2 . 2 P u R P O S e O F C O N C e S S I O N S

under the Conservation Act 1987, a concession is a permission to use

Crown-owned public conservation land for any ‘activity’. Such activities are

generally commercial in nature, such as tourism businesses and grazing, but

can also be non-commercial, such as the use of land for a bach.

The requirement for a concession arises from Crown ownership. It is a

landowner’s permission. Parallel forms of approval are required for private

use of reserves vested in local authorities under the Reserves Act, and for

other Crown-owned land such as Defence Areas, State Forests, pastoral land

and other land administered by Land Information New Zealand. A concession

is the equivalent of the permission a person needs to conduct a business on

any other person’s land.

Non-commercial public access and recreation does not require a concession—

it is allowed as of right. This reflects the fact that conservation land is held by

the Crown, on behalf of the public. Public access can only be limited where

justified to achieve a specific conservation purpose, such as the protection

of highly vulnerable natural values.

18

Commercial use of public land, or its use for other private purposes that

potentially detract from public enjoyment (e.g. exclusive occupation) is,

by contrast, a privilege not a right. The Minister of Conservation’s power to

grant a concession is a power to grant a privilege.

Four key functions for concessions include:

Delivering effective land management• The Crown is responsible

for maintaining the values of conservation land, to ensure it serves its

purpose, and to achieve this the Crown needs information on activities

occurring on the land, the power to control activities with actual or

potential adverse effects, and the ability to enable desirable activities.

Securing public benefit from private use and development•

Conservation land is public land, owned in the public interest, and where

private use or development of that land delivers private gain, there should

generally also be a return to the public, particularly where an interest in

property passes into private hands.

Clarifying public and private entitlements and responsibilities• In

a situation where public and private interests and duties are intermingled,

and could otherwise be confused or uncertain, a concession agreement

clarifies entitlements and responsibilities for both parties.

Providing well-governed access opportunities • Appropriate private

use and development of public conservation land needs an enabling

mechanism. Private interests benefit from operating in a regulated

environment that gives them legitimacy and a reasonable level of certainty,

and clarifies their responsibilities.

2 . 3 A P P R O A C H

Core principles the review process considered in assessing options for change

to the concessions regime are:

Promoting conservation• Concessions apply to land held by the Crown

for conservation purposes and the determination of concessions must

benefit conservation.

Ministerial responsibility• Granting a concession is a public power to

grant a privilege regarding use of public conservation land and this power

rightly sits with the Minister of Conservation, as the Minister responsible

for that land.

Treaty partnership• The Conservation Act must be interpreted

and administered so as to give effect to the principles of the Treaty of

Waitangi.

Enabling business• Commercial and other private activities on public

conservation land can contribute to conservation, and the concessions

process should facilitate appropriate business activities and the creation

of new opportunities.

Public participation• The Crown owns conservation land on behalf

of the public and opportunities for public input to concession decision

making are necessary to safeguard the public interest.

19

Fairness• Participants in the concessions process have a right to fair

treatment and respect for their interests, and a process for granting

privileges relating to public land should be transparent and consistent.

Simplicity• A decision-making process should be as clearly and simply

defined as possible, to ensure it is readily understood by applicants and

can be implemented efficiently and consistently.

2 . 4 I N F O R M A T I O N

The Department receives around 1,100 applications for concessions each

year. Information obtained from the Permissions database indicates that as of

the end of April 2009, the Department had 3,701 active concessions. These

were defined as follows:

Low Impact: 2,993•

High Impact: 522•

Re-issue: 131•

One-off: 55•

The Concessions Audit 2009 indicated that the most common type of

concessions by activity were grazing, guiding, aircraft/boating, filming

and access. It reported that approximately 57% of concessions were for

non-recreation activities and 43% were for recreation activities.

The Audit reported that Otago (18%), West Coast Tai Poutini (13%),

Canterbury (12%) and Southland (11%) Conservancies received the largest

number of concession applications.

Information was obtained from conservancies on the number of applications

that have been notified over the last 2 years. Of these (approximately

157 notified) few had received any level of engagement from the public.

Only 22 applications received submissions, of which only 8 proceeded

to hearing.

Information gathered on the number of Full Time equivalents (FTe) employed

in each conservancy and area office to work on concessions (this includes

all efforts such as processing, monitoring, compliance) showed that the total

FTe effort was 58.35.

Our top 20 concessionaires provided 50% of the Department’s revenue. It is

also interesting to note that 142 concessionaires (nearly 4% of all

concessionaires) contributed $10,056,021, which was 77% of the

Department’s revenue.

20

2 . 5 C O N S u L T A T I O N

External

Consultation focused on key stakeholders with a direct relationship with

concessions. This consultation was aimed at problem identification and

options for improvement. Some external parties have been kept informed

through the internal update fact sheets provided to departmental staff.

Workshops have been held with various sector and advocate groups, including

those from the environmental, tourism and energy sectors.

This information has provided a good insight into what the recipients of

the concessions process think, without it being fettered by departmental

interpretation.

Appendix 5 outlines who has been consulted.

Contact was also made with protected natural area colleagues in other

countries to obtain a picture of how concessions are managed internationally.

This involved all the states (and territory) of Australia, Parks Canada, and the

National Parks Service in the uSA. The review Working Group also looked

at recent work undertaken in Namibia, which has just established a new

concessions regime for its protected natural area network. This consultation

has provided great insight for the improvements suggested through

this review.

Internal

Departmental staff have provided significant input into this process, both in

the problem identification and options development. Many of the key changes

have been tested with most conservancies to ensure they are workable. As

with any policy review, some are not comfortable with the actions to be

implemented; however, most have provided very positive feedback.

Information has been provided through surveys, phone interviews, various

requests on specific matters and workshops with conservancies.

The Department’s staff are thanked for all their input into this review—

recognising the strain this has put on existing work commitments. The

review could not have been undertaken without this input.

21

Part 3 Better process

Delivering a timely, fair and consistent concessions process requires well-

defined responsibilities for both the Department and the applicant, and clear

milestones. This has been reiterated in conversations held with applicants

and departmental staff.

It is not necessary to develop a new process from scratch. Many elements of

the existing process are appropriate and should be retained. Nor is it necessary

to develop different processes for different activities. A key objective of the

review was to streamline and simplify the process, and development of a

series of separate processes with different rules would not promote this.

One of the reasons Part 3B was enacted in the first place was to rationalise

three different processes: the Reserves Act, National Parks Act and

Conservation Act.

3 . 1 T I M e F R A M e S

Timeframes for concessions processing are established mainly by the

departmental Concessions SOP. The Conservation Act only contains two set

timeframes for managing concessions.

The first statutory timeframe relates to s17T(2), which is commonly referred

to as the ‘knock-out’ test. If an application is to be declined because it is

inconsistent with the provisions of the Act and a CMS or CMP, the Department

has 20 working days to make this decision after the application is deemed

complete.

The second statutory timeframe is contained in s49, which is a provision

that applies to any public notification process that occurs within this Act.

Submissions can be made within 40 working days of the notification of the

application.

Other than these two statutory timeframes, the length of time it takes to

process the various parts of the concessions process is at the Department’s

discretion. Staff are guided by the Concessions SOP, which includes

timeframes for key modules of the process based on whether it is a low

impact, high impact, one-off, re-issue or conforming process. For example,

the SOP includes timeframes over which staff are required to provide internal

feedback.

Timeliness

It has been difficult to quantify the extent to which the Department is

timely in processing concessions. While information can be obtained from

the Permissions database, it cannot be considered reliable, as not every

conservancy uses the database in the way it was intended. Performance

reporting measures are also unable to provide reliable data based on variable

interpretation of their intent.

22

As part of this review, an internal audit of concessions processing was

completed, focusing on issues of timeliness. The audit considered how well

the Department met the timeframes identified in the Concessions SOP. The

outcomes of the audit were hindered by the inability to reliably use the

information contained in the Permissions database. An assessment of the

database concluded that, for concession applications received after February

2007, 29% of high impact concessions, 69% of low impact concessions and

86% of one-off permits did not meet the standard timeframes. The Auditor

also visited several conservancies to undertake a paper-based assessment. Of

the concessions assessed, the Audit concluded that 27% were not processed

within the specified timeframes indicated in the SOP (refer to section 3.7

Permissions).

While it has been difficult to quantify the extent of the problem, the

Department is under no illusion that the criticisms about poor timeliness are

real. every concessionaire spoken to as part of the review has indicated a

concern over how long it takes for the Department to process concessions—

from the simplest to the most complex. Of particular note is the time it takes

to process multi-conservancy concessions. every conservancy can identify

several applications that have taken much longer to process than is desirable

for a professional organisation.

Throughout the organisation there are approximately 100 concession

applications being processed that have been in the system for over 2 years.

Many of these are for low impact activities. At present these are expected

to be processed within 2½ – 3½ months. High impact activities are expected

to be processed within a maximum of 12 months. This clearly demonstrates

the breadth of the problem. The information indicates that the problem

is not specific to any conservancy, but is consistently problematic around

the country.

Most of the larger infrastructure activities applied for over the last 5–10 years

have yet to complete either their concession or resource consent processes

(often both). There are, of course, many reasons for this.

Key reasons for timeframes not being met include:

Lack of organisation willingness to meet timeframes in the SOP; hence no •

direction on the importance of being timely.

The Department’s internal processes for seeking feedback from relevant •

staff appear extensive and time consuming. each conservancy runs a

different model for how internal and external input into decision making

on concessions occurs. Regardless of the approach used, many are involved

in the advice loop. This includes the concessions processing staff, Area CR

and technical staff, conservancy technical staff and legal advice—at times

advice can be sought more than once. Being able to get this advice in a

timely manner depends on work priorities of staff. For example, a CR Area

staff member who is doing RMA work as well as concessions will focus

on the RMA work because it has statutory timeframes; or if fieldwork is

time dependent, this will come first. A general comment from staff is that

concessions are not seen as a top priority for the Department’s work, so

other work will take precedent. Processing staff feel reluctant to process

the application without this advice.

23

For North Island conservancies in particular, the seeking of feedback from •

iwi can take time. Some conservancies work to particular iwi timetables;

not those set by the Department.

Lack of clarity in planning documents often results in concessions staff •

having to do the ‘planning’ to determine if the activity is appropriate in

a place.

Constant to-ing and fro-ing with information requests between the •

Department and the applicant. While this has benefit in ensuring the

application can be improved to enable approval, it regularly results in

applications taking several months longer than necessary.

uncertainty from the applicant about when the clock starts ticking—this •

results in uncertain expectations about timeframes.

Applicants are not always forthcoming with information when requested. •

It is common practice to enable such delays rather than being forthright

and process the application without the information.

Inability for lead conservancies on multi-conservancy concessions to move •

them forward without receiving input from other conservancies involved

in the multi.

For some larger projects, applicants juggle resources between the •

resource consent and concessions process depending on their priorities

and capacity. This can delay the concessions process, which may in

fact be the applicant’s preference. Applicants will not necessarily

acknowledge this.

Suitable timeframes

Options have been explored with conservancies on what would be practicable

timeframes to apply for processing concessions and whether those contained

in the Concessions SOP are still relevant.

A number of the timeframes established in the SOP are not practical or

achievable. even with the streamlining and support changes to be implemented

as part of this review, processing timeframes require some adjustment to

be more realistic. The timeframes in the SOP might be workable for many

concession applications in the absence of competing work commitments, with

the exception of large projects and applications that require consultation with

iwi and conservation boards. In reality, however, the working environment

of departmental staff does not enable each concession application to be

considered without the influence of other work pressures—whether this is

the pressure on the concessions processor or those providing advice.

The new timeframes developed for non-notified applications appear slightly

longer than those contained in the Concessions SOP. It is important to note

that the proposed process starts the clock ticking earlier than in the existing

SOP. Some conservancies apply the SOP timeframes once the application

is considered complete. Much work has occurred prior to this, though is

not considered within the timeframes imposed in the SOP. An applicant,

however, considers that the process starts once they provide the Department

with the application.

24

Timeframes for one-off permits, re-issues or conforming concession

applications will not change. Most non-notified applications do not require

further information requests or enabling time for the applicant to provide

feedback on a draft report. For these run-of-the-mill applications, the

timeframes proposed are less than those in the existing SOP.

unlike the SOP timeframes, the new timeframes will be consistently

implemented. The average time taken to process a concession application

will be reduced, and the significant number of applications taking much

longer to process than provided for in the SOP will be eliminated. The new

timeframes for notified applications are reduced by 3 months overall from the

SOP. This could be reduced further if the notification period for submissions

is reduced by 20 working days.

A critical change is the establishment of mandatory timeframes, set in statute

or regulation. Initially, the Department will impose the new timeframes

through a revised Concessions SOP and active enforcement of timeframes on

applicants. It is acknowledged that mandatory timeframes will send a strong

signal that a change in organisational behaviour is necessary, though given

the time taken to amend the law, utilising a revised Concessions SOP will

achieve the most gains initially. How the Department operates in seeking

internal advice will need to change to meet the requirements of the new

timeframes; as will the nature of the consultation undertaken with iwi and

conservation boards in some places.

The new timeframes have been developed to:

ensure certainty about what happens at what stage in the process within 1.

specified timeframes. The timeframes are maximum allocations and effort

should be made to complete tasks before the time imposed.

Impose responsibilities on the applicant as well as the Department. It 2.

is expected that the Department will be more forceful with applicants

meeting timeframes. The applicant will be aware of expectations upon

them and be encouraged to meet them. For example, if the Department

is waiting for feedback from the applicant on a draft report and feedback

has not been provided within 10 working days, it is expected that the

Department will continue with the processing regardless of whether the

feedback has been provided (unless an alternative agreement has been

reached with the applicant).

ensure extension of timeframes will only be permitted in specified 3.

circumstances.

enable negotiated timeframes for large projects, whilst acknowledging 4.

that they will still need to follow the same general rules as all other

concessions in terms of process.

The new timeframes will apply to the following parts of the process (refer to

Appendices 2–4 for detail):

Acceptance of application. 1.

Further information requests—on the Department and the applicant.2.

Assessment and analysis of the application, including external consultation 3.

with iwi and conservation boards.

25

Feedback from the applicant.4.

Management of notification of application and hearings.5.

Making a decision.6.

Management of the reconsideration process.7.

NeW TIMeFRAMeS (WORKING DAyS)* exISTING TIMeFRAMeS (WORKING DAyS)†

Non-notified

Run of the mill, non-

notified

Without further

information request

45 working days

Timeframes for one-off

(5 working days),

re-issue (20 working

days) and conforming

schedule (5 working

days) still apply

55 (75 if it includes an

extension of time for

iwi consultation)

Low impact

One-offs

Re-issue

Conforming

schedule

50 (an extra 20 for multis)

5 (an extra 15 for multis)

20 (an extra 20 for multis)

5

With further

information

90—could be longer

if agree with applicant

or includes extension

of time for iwi

consultation

Included in timeframes

outlined above‡

Notified High impact

No submissions

Submissions, but no

hearing

Hearing required

130

165

185

Could expect longer

timeframes if significant

further information

required

Based on SOP 120–240 (6–12 months),

except for large

applications

* Based on timeframes that will be established either in law, regulation or SOP. Some of these may be

extended.

† Based on timeframes in existing Concessions SOP. For simple processes, these timeframes could still

be used.

‡ This is a key reason why the existing SOP timeframes are not met.

COMPARISON BeTWeeN exISTING AND PROPOSeD TIMeFRAMeS—TO THe POINT

OF ReCeIVING A DeCISION.

Consideration was given to aligning timeframes with those in the RMA. This is

particularly relevant given the recent amendments made to the RMA, some

of which are the result of complaints about the timeliness of processing

resource consents. The new timeframes have been guided by these changes

and, where possible, a consistent approach has been taken. There are some

areas where this has not been possible. This relates to the time taken for:

The internal assessment process •

Notification •

external consultation with iwi and conservation boards •

26

Extension of time

With any process containing timeframes, it is necessary to recognise that

the timeframes may not always suit every scenario. The ability to extend

timeframes is often provided for in well-defined circumstances. The

review Working Group considered how extensions of time provisions have

been utilised under various Acts including the RMA, Official Information

Act 1982, the Historic Places Act 1993 and the Fisheries Act 1996. This has

provided useful guidance for how extensions of time could be applied to the

concessions process.

Timeframes should not be extended because of staff unavailability or because

other work has taken priority. extensions should only be available in special

circumstances and determined in discussion with the applicant. This could

apply where:

The scale of the application is large. •

The issues are complex. •

The activity is novel.•

Consultation is required beyond the norm. •

extensions in other processes are commonly extended for double the time

originally enabled. This would seem appropriate for concessions. If it is

intended to extend the timeframe longer than double, this should be possible,

but only in extraordinary circumstances. A decision to extend the timeframe

should sit at a delegation higher than the normal decision-maker. Any of

the timeframes included in the new process could be extended, except the

receipt of application date and those set in law at present, as there is no

ability within the Conservation Act to extend these.

This will need to be monitored to ensure extension of time is not being

misused and becoming the norm.

Public submission period

Section 49 of the Conservation Act requires the public notification period

to be for 40 working days. This applies to various processes including

concessions, General Policy and management planning documents. This

timeframe was established to enable time for submissions to be made on

all these processes, some of which require reasonable time to consider and

submit. It is arguable whether enabling 40 working days for submitting on a

concession application is necessary. It is understandable when applied, for

example, to planning documents.

under the Reserves Act, the notification period for submitting on revocations

and change of classifications is 1 month (the equivalent of 20 working days).

The submission period for resource consents under the RMA is 20 working

days.

The time taken to process a notified application should be reduced by changing

the time for submissions from 40 working days to 20 working days. This would

require a law change, but effectively would result in one less month on the

time of processing a notified application. This timeframe is more consistent

with those under the RMA and would not appear to reduce opportunity for

consultation significantly. To address any loss of opportunity, the Department

will more actively inform stakeholders of notified applications.

27

Incentives

Regardless of whether the changes are implemented through statutory or

non-statutory change, it is considered necessary to provide incentives for the

Department and applicants to meet timeframes. expecting change overnight

is not likely, so offering encouragement to do so is considered appropriate.

Several options are available.

The recent RMA amendments have provided for regulation to impose a

penalty on councils who do not process resource consents in accordance

with the timeframes specified in that Act. It essentially will enable the return

of a percentage of the application fee to the applicant. This is an appropriate

tool to impose upon concessions processing as well. It will be applied once

the new process is implemented in July 2010.

Other options considered include:

Identifying on the intranet (or even the internet) top–bottom performing •

conservancies in terms of meeting the timeframes imposed. This may create

a competitive approach among conservancies for meeting timeframes.

Distributing the concessions incentive money in a way that rewards •

performance based on meeting timeframes rather than based on revenue

generation.

Providing discounts on application fees for incumbent concessionaires if •

their application is lodged several months before it expires.

Further work will be undertaken to determine what other tools beyond the

timeliness penalty will be useful to provide incentives for staff and applicants

to meet timeframes. It is important to recognise that these should not be

focused on the staff processing concessions, but more on the conservancy’s

performance. This recognises that there are many people involved in the

concessions process, not just the staff responsible for the processing.

Tracking timeframes

It is essential that the Department has a standard tool for tracking timeframes

and progress through the process. The Permissions database can do this,

though it is not used by everyone consistently. Some changes are required to

the database to make this more effective (refer to section 3.7 Permissions).

The inconsistent use of tools does not enable effective monitoring to occur

at a wider scale.

The Permissions database will be mandatory to use. It is important to identify

which fields of the database are essential to use, rather than nice to use; and

to ensure that data entry is standardised. Staff have indicated that there are

some fields which are not necessary to fill in, particularly if a key goal is to

enable effective tracking and reporting on concessions.

28

Extinguishing applications

It is not uncommon for applications to sit in the system for some time awaiting

responses from applicants either for further information, feedback on draft

reports or signing of contracts. At present, there appears to be no legal

option for removing these from the system (however, further legal advice

may be required on this). Staff have to write a full report and recommend a

decline to remove inactive applications. This is considered cumbersome and

unnecessary. The Department can request that the applicant withdraw the

application, though at times it is not always possible.

It is preferable for the Department to deem an application to have lapsed if

there has been no action from the applicant after a specified period. Prior

to doing this, the Department will have contacted the applicant and given

them the opportunity to either reactivate the application or to withdraw

it themselves. An appropriate timeframe for implementing this action is

3 months of inaction by the applicant. Should the applicant wish to reinstate

their application after this action, they would need to submit a new

application with a new application fee. Performance reporting will need to

identify this action.

A comment on the application form indicating to the applicant that this

would occur is appropriate. The applicant is therefore aware upfront of their

obligations to keep the application process moving. To provide certainty to

this action, it could be included in the law.

Complete application

under current law, an application is not ‘complete’ until it is almost approved.

This is unusual, and creates confusion in comparison with more familiar

approval processes (notably the RMA), in which completing an application

is a matter of providing the essential information that enables the process to

begin. Concessionaires have complained about the uncertainty around when

the application is actually accepted by the Department and the processing

starts. As a result, it is considered necessary to add clarity to the process

about when the clock starts ticking.

The presumption about when an application is complete will be changed to

apply to the beginning of the process, rather than at the end. It would be more

appropriate to consider an application complete when the requirements of

s17S(1) and (2) of the Conservation Act have been met. This section relates

to the contents of the application. This is similar to what occurs in the

RMA processes. It will make it clear about when the process actually starts.

Once the application is received, this assessment will occur within 5 working

days. This includes the acceptance of costs. If the requirements of s17S(1)

and (2) are not met, then the application is returned to the applicant with no

further work occurring. It is possible to apply this without changing the law,

though it would create a few challenges in how s17(S)(6) and s17(T)(1) will

apply. It would be beneficial to add to s17(S)(1) and (2) the requirement for

application fees to be provided at this point.

29

Multi-conservancy concessions

For concession applications covering locations across multiple conservancies,

a lead conservancy is appointed to coordinate the process. each conservancy

involved in the multi considers it as an individual concession; seeking internal

and, at times, external feedback, writing reports, at times seeking legal advice,

and ensuring the delegated decision-maker’s approval. A decision-maker for

each conservancy is affected.

Multi-conservancy concessions are notoriously slow to process. There have

been recent examples of guided walking multis that have been in the system

for in excess of 5 years.

There are many examples of multi-conservancy concessions with excessive

numbers of conditions, many appearing the same from the different

conservancies involved (each report includes special conditions from each

conservancy).

Delays can eventuate from having to consider sites that should never really

be part of the multi process—those that are more complex. This includes

places that may be limited opportunities, or in places such as specially

protected areas. It could also include places where time may be required to

consult with iwi. To address this, each conservancy shall prepare a list of

places or activities that will not be included in multi-conservancy concession

applications. Guidance will be provided on what should be included on

these lists. The lists will be independently checked by National Office. It

will be placed on the Department’s website and updated on a regular basis.

It does not stop concessions being applied for; it just results in the applicant

seeking a separate concession, therefore obtaining the multi concession

much quicker.

There are many issues around the management of multis that could be

addressed simply by the lead conservancy taking more control of the process.

In future, the lead conservancy will be responsible for:

Facilitating feedback from other conservancies. a)

Being the decision-maker on all sites (Conservator). b)

Providing only one set of legal advice. c)

ensuring there are no repetitive conditions.d)

Other improvements

Timeliness is likely to improve as a result of other actions. The effects of the

re-issue process and conforming schedule for guided walking are yet to be

realised. It is expected that both simplified processes will reduce the time it

takes to obtain a concession.

30

3 . 2 I N F O R M A T I O N R e q u e S T S

under s17S(3) of the Conservation Act, the Minister may require an applicant

to supply such further information as the Minister considers necessary to

enable a decision to be made, including the preparation of an environmental

impact assessment. Section 17S(4) enables the Minister, at the expense of

the applicant, to commission a report or seek advice from any person on

any matters raised in relation to the application, including a review of any

information provided by the applicant; and/or obtain from any source any

existing information on the proposed activity or structure that is the subject

of the application.

The Minister only considers complete concession applications. An application

is considered ‘incomplete’ where the applicant has not supplied the Minister

with the specified information required by the Minister. However, Part 3B does

not specify timeframe requirements by which the applicant must provide this

further information. The lodgement of incomplete/inadequate applications

results in the Department having to request additional information, which

takes time and can significantly prolong the overall processing time.

Issues raised

The lack of timeframe requirements for further information requests has

been highlighted as a key issue by departmental staff and concessionaires.

The Department often has to wait on the applicant to provide further

information. There are no limits on the regularity to which information

requests can occur.

The further information request stage can slow down the process considerably.

This can be due to:

The Department seeking numerous information requests (e.g. ‘drip •

feeding’ of requests over a long period of time).

The applicant not responding in a timely fashion. This can be for several •

reasons including:

The applicant may not view this as a priority based on economic i)

conditions.

The applicant may have their resources invested in another area, such ii)

as the RMA consent.

The applicant may not agree with the need to provide the further iii)

information.

Resource Management Act and further information requests

A common suggestion for improvement is for the concessions process to use

similar approaches to that under the RMA. under s92 of the RMA, a consent

authority may, at any reasonable time before the hearing of an application for a

resource consent or before a decision is made (if there is no hearing), request

the applicant to provide further information relating to the application.

31

An applicant who receives a request for further information must, within

15 working days of the date of the request, either:

Provide the information; or •

Tell the consent authority the applicant agrees to provide the information; •

or

Tell the consent authority the applicant refuses to provide the •

information.

If the applicant agrees to provide the information, the consent authority

must set a reasonable time within which the applicant will provide the

information.

The consent authority may decline the application if:

The applicant does not respond within the time limit specified •

(i.e. 15 working days); or

The applicant has responded saying that they agree to provide the •

information but then does not comply with the time limit set by the

consent authority; or

The applicant refuses to provide the information; and •

It considers that it has insufficient information to enable it to determine •

the application.

Applicants can refuse to provide the requested information to the council,

and request the council proceed with the application on the basis of the

information already provided (and at the risk that their application may get

declined). The council must then process the application and either grant or

decline the application based on the information they already have.

The RMA allows for the ‘clock to stop’ for certain time limits. This approach

has relevance to the concessions process. This is discussed below.

Incomplete applications

The lodgement of incomplete applications results in the Department having

to request additional information and this can significantly slow down the

overall process. The review Working Group heard across the board that the

Department often receives concession applications that need some work. As

a result, staff spend time going back and forth to the applicant in an attempt

to obtain sufficient information and get the application to an acceptable

level; this takes time.

The new process (refer to Appendices 2–4) will enable the Minister to reject

incomplete applications at the start of the process; that is, ‘knock out’

applications that do not comply with the s17S requirements. This would also

put a stop to the current practice whereby the Department often attempts

to fill in the information gaps itself. Carrying out a thorough initial further

information assessment will reduce the need for further information requests

later in the process.

Greater emphasis will be placed on the pre-application stage of the process.

This is where time can be spent encouraging the applicant to provide

sufficient information and getting the application as complete as possible.

32

The Department also needs to be clear about what information it requires

in an application; this can be achieved by having better information on the

website, by having good instructions on the application form, and posting

mock applications on the website.

Time limits

Timeframes will be applied to this part of the process. From the date of

acceptance of the concession application, the Department has 10 working

days to determine if further information is required and request it. If not,

then the process continues to the assessment stage. For very simple requests,

this should also occur within this 10-day period.

Additional time may be required to formulate some requests; therefore, after

the first 10 days, a further 10 days can be sought (with approval from the

appropriate delegate) to develop the request and send it to the applicant. For

complex applications and where there are large information gaps identified,

this can be extended using the extension of time provisions. This time

extension would be negotiable. This is an opportunity to ‘stop the clock’.

The applicant will have 15 working days to provide the requested information

(or at a time agreed by both parties). This time limit reflects that in

the RMA.

Stopping the clock

under the RMA, if further information is sought, the processing clock stops

until that information is provided to the council. Once the Department has

sent out its further information request, the applicant will have 15 working

days within which to provide that information (or at a time agreed by both

parties); then the clock starts ticking again.

The new concessions process will reflect those provisions outlined in the

RMA Amendment Act 2009 regarding ‘stopping the clock’. That is, the

Department has the ability to ‘stop the clock’ for two further information

requests: once before and once after the closing date for submissions. This

enables the Department to address matters raised through submissions.

The clock will not stop for subsequent requests. Other further information

requests can be made after these; however, they must be within the timeframes

indicated in the process that follows (i.e. the Department will have to keep

processing the application while waiting for the information to be provided).

Therefore, any subsequent requests should only be made for clarification. If

further information is required on a substantive issue, the extension of time

option may need to be used.

Right to refuse to supply further information

The applicant has the right to refuse to supply further information and ask

that the process continue based on the information already provided (like that

in the RMA). The Minister currently has the ability to decline an application

based on insufficient information under s17u(2).

The ability to reject an application if no response is received from the

applicant makes it easier to cancel concessions when there is no opportunity

for progressing it. This requires a law change.

33

3 . 3 C O N S u L T A T I O N

The Conservation Act provides opportunity for public involvement in

the concessions process through the making of submissions on notified

applications. This is the only formal requirement for consultation. It is not

to say this is the only time consultation is undertaken. Conservation General

Policy 2(a) and 13(e) impose responsibilities on the Department to consult

with tangata whenua and conservation boards on concession-related matters.

Concessionaires also have opportunity to be involved in the development

of planning documents and general policy that guide decision making on

concessions.

Pre-application consultation

The Department’s approach to consulting with applicants prior to making

an application is quite varied. It can be as much or a little as the applicant

wants; or determined by the time departmental staff have available. The

Concessions SOP suggests that for low impact concessions a maximum of

1 hour free pre-application discussions should be provided to the applicant.

The pre-application discussions with applicants are going to require a new

focus. They will become particularly important with the new timeframes

being imposed. This will require better quality applications than accepted at

present. Many of the conversations had with applicants within the process

about the appropriateness of activities would be better occurring at the

pre-application stage. The applicant should not be restricted to just 1 hour.

Judgment should be used to determine how much time is required to get a

good application prepared before it is submitted. This will pay dividends

in terms of how quickly the application can then be processed. There may

be cost implications on the Department if pre-application discussions are

prolonged.

Some conservancies spend time with the applicant (particularly with regard

to grazing licences), guiding them in the preparation of the application. This

is encouraged as it ensures that the application can then be progressed more

quickly and achieves a good outcome for all.

For large applications, the pre-application consultation that occurs can

be extensive. Some conservancies have agreements with applicants about

cost-recovery for some pre-application discussions. This approach will be

mandatory in future. Further work is required on developing a schedule of

costs that can be applied in such circumstances.

Conservancies and concessionaires suggested more regular use of consultants

to help prepare applications to a higher professional standard. This is

supported, though it is important that the Department works with some of

these consultants to ensure the applications prepared are of a good quality.

34

Suggestions were also made about using accredited agents, an approach

LINZ uses, for preparing applications. This is worth considering, though will

require a level of work that may be better placed in other implementation

projects associated with the review. Standards, quality control and auditing

systems would need to be developed. It may be more cost-effective to

undertake training with consultants who regularly do this work to ensure

a quality product is produced. The concession induction training package,

which will be on the Department’s website soon, will assist with this.

To help make it easier for applicants to understand what is required of them,

examples of applications and associated reports/contracts of commonly

applied for applications will be included on the Department’s website.

External iwi and conservation board consultation

each conservancy has a different approach to how consultation with iwi

and conservation boards occurs. It is more common for both the board and

iwi to receive the application once the Department has undertaken some

assessment and formed an initial view on the application. It is not clear if

this is the preferred approach for those being consulted. This consultation

at present occurs before the First Determination Report is circulated to the

applicant for comment.

It is important to note that this consultation occurs between the Department

and the conservation board and iwi. It does not restrict the applicant from

undertaking separate consultation with these parties. The Department

will encourage applicants to consult with these parties prior to lodging an

application. This will be made clearer on the application form.

Conservation board consultation

For some conservancies, triggers have been developed with conservation

boards about the types of applications they provide comment on. This

approach should be used with all conservation boards. For example, it is

not efficient for conservation boards to be considering concessions that are

clearly enabled by planning documents they have had a role in approving.

It is important for focused consultation with conservation boards to

occur, as they tend to only meet four times a year in most conservancies.

If processing the concession was based on conservation board meeting

times, it could significantly delay an outcome. Many conservation boards use

sub-committees for commenting on concessions. This may need to be used

more widely to meet the timeframes proposed. It is not considered appropriate

that extension of time be enabled for conservation board consultation unless

it is a significant application of concern to the conservation board or relevant

to implementing general policy requirements.

35

Iwi consultation

The Department consults with iwi on concessions as an expression of

implementing its obligations under s4 of the Conservation Act or as a

condition of a Settlement. There is no standard model for how conservancies,

or at times areas within conservancies, consult with iwi on concessions. How

this occurs is generally based on the relationships the conservancy has with

a particular iwi and the resources and structures the iwi has at hand.

A contributor to slow process is how the Department consults with iwi on

applications. It is not uncommon for some places in the North Island to impose

no time constraints on consultation with iwi. The applications will not be

progressed until the feedback has been provided, even if this takes months.

Others have targets for responses and do their best to encourage these to

be met (often around 4–6 weeks); while others will progress the application

through the process whether a response has been received or not. To a large

extent, the approach taken by the Department does depend on the health

of the relationship between staff members and iwi representatives. This can

also be strongly influenced by whether Treaty settlement negotiations are

underway or have recently been settled. The latter two situations often result

in the Department enabling more flexibility for the iwi response.

Often applicants are not informed of the reason why the delay is occurring.

In some instances, applicants will not be told that the applicant is informed

because the Department is awaiting a response from iwi.

Relationships with iwi are important to the Department. So too are

relationships the Department needs to have, and does have, with

concessionaires. Concessionaires pay a fee for a service to professionally

process an application. They should expect this to be undertaken in a timely

manner.

Seventeen iwi have Settlement Acts. All but one of these includes directions

within the Protocols for how engagement with concessions should occur.

The level of specificity does vary, with some including specific timeframes

for how long it will take for the iwi to provide feedback. Of those that

provide timeframes (4 out of 17), none exceed a month. At least two of these

relate to iwi who are presently provided with much more than 1 month to

respond. Most include a requirement for the Department to either require or

encourage the concessionaire to consult with the relevant iwi.

Several others include direction for the creation of triggers for what

concessions will be consulted on and how long will be provided for comment.

For most of these this detail is still being worked through with the iwi.

An exception to this is the agreement reached between Ngäi Tahu and the

Department for when consultation will occur and how long it will take. The

South Island conservancies involved and Ngäi Tahu agree that this works

particularly well. It is important to note that the standard time for feedback

from Ngäi Tahu is 2 months, also noting that they do not see many of the

low impact and re-issue concessions. For this to fit with the new timeframes,

proposed applications will need to be sent to Ngäi Tahu earlier in the

36

assessment process or the agreed trigger may need to be changed. To a large

extent this makes the Department’s consultation with iwi on concessions in

the South Island simpler than for their counterparts in the North Island.

The Department will seek to establish with iwi the use of triggers for when

an iwi would like to be consulted on concessions for feedback.

There are existing arrangements and outcomes from more recent settlements

resulting in joint decision-making processes for places (such as those that

exist in the Bay of Plenty). The regularity at which these bodies meet may

also have an implication on meeting timeframes. If they are only meeting once

every 3–4 months, it creates similar challenges to those of the conservation

boards in meeting the new timeframes proposed. The solutions are the same

as those identified for conservation boards.

It is possible for most iwi consultation to occur within the timeframes

proposed by the new process. For those conservancies that do have set times,

these normally vary between 4 and 8 weeks. Recognising that there will be

occasions when further time may be required, it is agreed that an option for

formally extending timeframes should be enabled.

A specific extension of time will be provided for in the new process

to allow for iwi consultation in defined circumstances. This makes it

much more transparent about the cause for the deviation away from the

standard timeframes. The timeframe can only be extended for a further

20 working days. To do this requires a specific decision by the delegated

decision-maker.

Criteria are required for when such an extension can apply. This is not meant

to apply if an iwi does not have the resources to commit to the consultation;

more it should be used under special circumstances. These could include

situations where:

There is known conflict with the content of an iwi management plan.•

A full cultural impact assessment is required. •

Statutory requirements from Settlements/Protocols require something •

different.

There are agreed triggers with an iwi that may differ.•

existing boards or joint decision-making roles make standard timeframes •

unworkable.

There are shared rohe. •

Consideration was given, but discounted, for just providing more time for

the assessment part of the process. This extra time would be available for all

and no doubt would be fully used whether it was needed for iwi consultation

or not. For this reason, it was not considered desirable.

More effort will be placed on requiring the applicant to consult with iwi

and attempt to resolve as many issues as possible before the application is

lodged.

37

3 . 4 N O T I F I C A T I O N

Currently the Conservation Act requires notification of all leases and licences.

Notification of easements and permits is discretionary and most are not

notified.

The Regulatory Improvement Bill, which is now before Parliament, would

extend the maximum term for non-notified permits from 5 years to 10 years,

and make notification discretionary for licences with terms of up to 10 years.

This is expected to reduce the number of licences notified, which is likely to

reduce the number of notifications overall: of the active concessions on the

Permissions database that were notified, 66% were licences.

Thresholds for notification

The rate of notification for concession applications is high relative to

resource consents. About 43% (1,600) of active concessions have been

notified. No direct comparison with active resource consents is possible,

but the percentage of all resource consent applications notified (including

limited notification) by local authorities according to surveys by the

Ministry for the environment between 1997/98 and 2007/08 has averaged

about 3% for territorial authorities, 10% for regional councils and 15% for

unitary authorities.

Public notification increases the processing time and cost for a concession

application, but a high level of notification does not in itself constitute a

problem with the concessions regime. There is less discretion regarding

notification of concessions, because concessions enable private gain from

activities on public land, in which the public has a legitimate interest.

Resource consents mostly relate to use of private land.

The Regulatory Improvement Bill proposes doubling the period for which a

permit can be obtained without public notification, to reduce compliance

costs for applicants and administrative costs for the Department without

compromising conservation or significantly reducing public input. It

also provides discretion on notification of licences with periods of up to

10 years.

The existing situation of requiring notification of all leases sought on public

conservation land is appropriate. An exclusive private interest in public land

should not be granted without an opportunity for public submissions.

Exercising discretion to notify

There is a lack of shared understanding in the Department of the purpose and

value of notification (i.e. public consultation) in the concessions process.

This is a barrier to the effective and consistent use of discretion to notify.

Better practice will become more important as the discretion to notify some

licences takes effect (if the Regulatory Improvement Bill is passed).

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Advertising notified concessions

The lack of shared understanding in the Department of the purpose and value

of notification also produces an ineffective approach to advertising notified

concessions. Most are notified only in newspaper public notices. Generally,

no effort is made to alert interested or affected parties when a concession is

notified, even when they can be readily identified. The Department will ensure

all notified applications are publicised on its website in future. It maintains

stakeholder email lists and these could also be used to good effect.

Advice to applicant of need for notification

Because notification increases processing time and cost, applicants should

be alerted as early as possible to the prospect of notification. This occurs

early when a statutory requirement to notify clearly applies (e.g. for a lease),

when the applicant is asked to accept a processing cost estimate. In some

cases, however, the decision on notification can be made relatively late in

processing, after analysis of the application. This is reasonable, as the case

for notification might only emerge after further information has been sought

from the applicant and the likely effects of the proposed activity have been

considered thoroughly. Likewise, an initial judgement that notification will be

necessary could be reversed during processing (e.g. if controversial elements

of an application are withdrawn by the applicant or it becomes clear that

effects can be comprehensively mitigated by conditions).

Applicants should not be surprised late in the process by advice from

the Department that their application will be publicly notified. even

where notification cannot be confirmed early, processing staff can draw

on experience or advice to alert the applicant early that notification is a

possibility. Notification can then be confirmed, or not, later in the process.

The reverse should not occur: a decision to notify should not be taken if no

initial advice has been given to the applicant that it could happen.

Notification of application rather than intention to grant

Current approach and issues

Section 17T(4) and (5) of the Conservation Act 1987 requires the Minister,

before granting any concession in the form of a lease or licence of a

conservation area, to notify his/her intention to do so. Only proposed

decisions to grant a concession are notified: decisions to decline are never

subject to public submissions.

This differs significantly from the resource consent process, in which an

application is notified without any preliminary decision on its merits.

Compared to the resource consent process, the concessions process is

widely seen as largely pre-determined at the point of public notification.

Departmental staff and applicants see little prospect of a ‘first determination’

being reversed or significantly altered as a result of public submissions.

This is borne out in practice: the review identified only one example of

an intention to grant a concession being changed to a decision to decline

because of public submissions. Applicants frequently do not attend hearings.

39

This suggests a low level of expectation that submissions could affect

the outcome.

Some applicants also question the lack of any option to notify a proposed

decision to decline a concession application. They see this as a signal that

the Department is unwilling to subject such decisions to public challenge

and scrutiny.

Reasons for the current approach

Since 1977, the process for leases and licences has involved a preliminary

approval before seeking public input. until 1996, s14(3) of the Conservation

Act provided for notification of intention to grant. The Reserves Act provisions

for grants of leases and licences and the General Policy for National Parks

required an application to be assessed on its merits before a decision was

made to decline or publicly notify it. In 1996, this approach was continued

when Part 3B, which now governs concessions, was introduced.

Although the review found no record of the original rationale for notifying

an intention to grant, experienced staff understand it to reflect the nature of

a concession as a landowner’s consent. The Crown, as the landowner, is the

party principally affected by a proposal to undertake an activity on public

conservation land. Because it owns the land for a specific purpose, it can

also be presumed to have the information about an area and its values that

is necessary to assess the effects of a proposed activity. Notification then

provides the opportunity for public comment on the proposed approval,

given that the Crown owns the land on behalf of the public.

It is less clear why public views should be irrelevant to a proposed decision

to decline an application. There is a common view amongst concessions staff

that notifying an intention to decline would be a pointless waste of time and

effort, as the proposed activity is ‘not going to happen’.

There is a clear difference with the purpose of public notification of resource

consent applications under the RMA. The consent authority is usually not the

principally affected landowner and cannot be presumed to be the primary

source of information on the relevant land values and environmental effects.

Notification of a resource consent application is, therefore, an important

means of gathering information on effects, as well as an opportunity for

public input into decisions that affect the environment. A resource consent

application is notified if the decision-maker will not otherwise have sufficient

information to grant consent (or form an intention to do so).

Proposals for change

The review concluded that the current process of notifying an intention

to grant a concession is problematic. It contributes significantly to a view,

both internally and externally, that public consultation is of marginal, if any,

relevance to decision making. This adds, in turn, to perceptions that the

concessions process is highly controlled by a department that is reluctant to

take wider interests and views into account.

40

It remains true, however, that the Crown is (or should be) in the best position

to assess the effects of a proposed activity on public conservation land. The

public, when invited to comment on a proposed concession activity, should

have access to information held by the Department on the values of the

land affected, the anticipated effects of the activity and the measures the

Department, as the responsible land management agency, would propose

to deal with the effects. Notification of an application alone would not

provide this.

There is benefit in enabling the notification of an application for a concession,

rather than notification of a proposed decision (an ‘intention to grant’). This

requires a law change. The application should be notified with a report

from the Department providing an assessment of the proposed activity

and its effects, a recommendation as to whether it should be approved or

declined, and proposed conditions on approval. At the point of notification,

no indicative decision on the recommendations would have been made.

The report would therefore be identified as an officer report, not a

First Determination Report.

This change would have the effect of moving the decision on a notified

concession application to a point that is clearly after the public submission

and (if necessary) hearing part of the process. This will help correct views

that public consultation has only a token part in decision making, while

still giving the public access to relevant information and expert advice held

within the Department.

enabling notification of concession applications that the Department

recommends be declined is a necessary complementary change. This will also

require a law change. It is consistent with the position that a decision has

not yet been made at the time of public notification. There is no compelling

argument as to why public comment should be relevant to a decision to grant

a concession, but irrelevant to a decision to decline. The only exception is

if an application is to be declined under s17T(2) of the Conservation Act

because it is clearly inconsistent with the Act or a Conservation Management

Strategy or Plan, and therefore cannot legally be approved. Decisions to

decline on this basis are very rare. Applications that proceed further through

the process, to the point of notification, typically involve significant elements

of legal or plan interpretation and managerial judgment. For such decisions,

there is no reason why public comment should not be part of the information

considered by the decision-maker.

Because the cost of notification, and of a hearing if one is necessary, is

recovered from the applicant, the applicant will be given the opportunity to

withdraw the application if there is a recommendation to decline. Notification

and hearing costs can be significant—for example, cases investigated by the

review Working Group showed that costs to applicants for notified concessions

ranged from $763 to $17,144, while costs to applicants for notified resource

consents ranged from $4,749 to $40,337. Therefore, applicants should be

able to avoid these costs if they do not wish to pursue their application

further in view of a departmental recommendation to decline it.

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3 . 5 H e A R I N G

The Conservation Act states that where the Minister gives public notice of

intention to grant a concession application, and where a person or organisation

making an objection or submission so requests, the Director-General shall

give the person or organisation a reasonable opportunity of appearing before

the Director-General in support of the objection or submission (s49).

The Department currently runs hearings as a forum to hear what the submitters

have to say about the intention to grant.

Few applications receive submissions. For example, over the last 2 years

approximately 157 concession applications have been notified, of which

22 received submissions and only 8 of those proceeded to hearing.

Issues raised

Some external stakeholders seek more scope for applicants to present a case

at the hearing and to respond to matters raised in the submissions. Some also

request the opportunity to seek clarification at the hearing from submitters

and departmental staff. The request has been that hearings be managed more

like a hearing under the RMA.

Particular issues raised during the review include:

The current hearing process provides limited opportunity for an exchange •

of views (because the focus is only on any submissions lodged).

Applicants do not have an express right to appear at the hearing, which •

is seen as a deficiency in natural justice.

Proposals that hearings should enable the applicant to present legal •

submissions and evidence; departmental staff to present relevant material;

submitters to present material in support of their submission; and the

applicant to ask questions of clarification and have a right to reply.

Pre-hearing meetings

under the RMA, a pre-hearing meeting can be called to clarify or facilitate

resolution of a matter or issue (s99). This can be a matter or issue arising

between any of the ‘triangle’ of interested parties—the applicant, submitters

and the consent authority. Some conservancies have indicated that, in

particular cases, it would have been beneficial to have had the ability to hold

a pre-hearing meeting during the concessions process. In future, pre-hearing

meetings should be encouraged in order to try and resolve issues and prevent

the need for hearings.

Guidance material

The current SOP cites the following reference material: ‘Procedural Guidelines

for Concession Hearings’, which outlines procedures on conducting hearings.

It has been identified that these guidelines need to be re-written. There is

a need for better guidance on how hearings are run; the Department needs

well-trained staff on the hearings.

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Timeframe to hold hearing

Hearing dates can be difficult to confirm when multiple submitters wish to

be heard. There is also some uncertainty about how long the Department

should delay hearings for to enable as many submitters as possible to appear.

The Conservation Act (s49(2)(c)) requires that the Director-General gives

every submitter ‘a reasonable opportunity of appearing’. The Department’s

view is that a reasonable opportunity will take account of the convenience

of submitters, but also the desirability of making a decision without undue

delay.

In future, where practicable, a hearing date will be set at the time an

application is notified for public submissions. This would help avoid the

sometimes significant delays arising trying to determine a suitable hearing date

later in the process, while still giving likely participants reasonable advance

notice of when they will need to be available for a hearing. The hearing date

will be no earlier than 15 working days from the close of submissions (to

enable preparation for the hearing and ensure sufficient notice for people

who engage late in the submission period) and no later than 25 working days

from the same point. Prospective submitters and the applicant would have

up to 45 working days’ notice of the hearing date, with the recommended

20-day submission period, and up to 65 working days’ notice with the current

40-day submission period.

Hearing panel

The hearing panel could consist of the CRM/Area Manager (under delegated

authority). Others that could assist at the hearing may include the staff

member who wrote the officer report, area staff who know the ‘on the ground’

matters, and possibly at times a lawyer or conservation board member.

The review explored whether the decision-maker should be on the hearing

panel (as in resource consent and environment Court hearing processes).

The wording of Part 3B implies that the decision-maker is not present at

the hearing; the Director-General attends the hearing, not the Minister. The

Director-General then summarises the submissions received and makes a

recommendation to the Minister.

Differing views were expressed by conservancy staff on whether the decision-

maker should be on the panel. Those who supported the idea felt that this

would provide the decision-maker with a full picture of the process. Those

who were against the idea felt the decision-maker needs to be kept a step

apart from the hearing, as this provides the opportunity of having discussions

with someone at a higher level (i.e. with the decision-maker). They also

noted that the decision-maker could be influenced by presentations that do

not represent the full picture (e.g. would be influenced by those submitters

who requested to be heard, yet would not be influenced by those who did

not wish to be heard). They considered that the decision-maker needs to

approach the application with fresh eyes and make a balanced, unbiased

decision.

Having considered these matters, it is considered preferential to have the

decision-maker present on the hearing panel. There is considerable benefit

43

in the decision-maker being present at the hearing. It provides them with

an overview of the application, enables them to hear submitters’ concerns

and provides an opportunity for the decision-maker to seek clarification on

matters. One of the risks of not having them there is that the report written

up after the hearing may not portray everything that was dealt with at the

hearing. It eliminates the possibility that aspects of the hearing get missed

out or misinterpreted in the write up of the report. This reflects the practice

that is carried out in RMA and environment Court hearings.

Hearing procedure

Concerns have been raised over the transparency of the concession hearing

process, and consistency in approach. For example, in some conservancies

it is apparently common to offer the applicant an opportunity to respond

to matters raised in a hearing; in others, applicants asking to speak have

been refused.

The review explored whether, under the current law, the applicant and

departmental staff can present at a concessions hearing. Section 49 of the

Conservation Act is silent on the right of the applicant to be heard. This

section states that where something is publicly notified under the Act,

persons can submit in writing, and if they so request, the Director-General

must give them ‘a reasonable opportunity of appearing before the Director-

General in support of the objection or submission’. On the face of it, this says

nothing about allowing or not allowing an applicant or departmental staff

to participate. However, the tenor of s49(d) may suggest a ‘hearing’ of this

sort is not contemplated. This subsection says that the Director-General then

summarises the submissions and makes a recommendation. This could be

interpreted to mean the ‘hearing’ is limited to the submitters only (otherwise

the Director-General would have to summarise the responses the applicant

made also).

In future, the applicant should routinely be invited to respond to matters

raised in a hearing (e.g. in submissions). This would enable the applicant to

propose solutions to problems raised, or address points they feel have been

misunderstood or misrepresented. Submitters can benefit if applicants can

clarify matters for them.

Applicants, in the current and new concessions process, have multiple

opportunities to represent their interests to the Department both before

and after the hearing. For this reason, it is not considered necessary for the

applicant to present their application to the hearing panel. They do not have

rights at risk in the process that mean a right to be heard is demanded by

natural justice; rather, they are seeking the grant of a privilege. A hearing

in the concessions process is primarily for submitters, who have no other

opportunities. Neither should the applicant be able to cross-examine

submitters or departmental staff. This would make concession hearings more

like judicial processes, when it is more appropriate that they be conducted in

a less formal manner comparable to a local authority hearing. Departmental

staff at a hearing should be available to offer clarification or information as

necessary, at the discretion of the chair.

44

upon completion of the hearing, concessions staff will have 20 working

days to finalise the report. This allows time for staff to update the report,

to ensure it reflects any matters that were discussed at the hearing, and to

consider any new matters that arose (as some matters can be substantive).

The full 20 working days will not always be required—if this amount of time

is not needed, it should not be used.

3 . 6 R e C O N S I D e R A T I O N

Issues

The reconsideration process for concessions is seen by some applicants

as ‘the Department sitting in judgement on itself’. They do not think it

offers applicants enough confidence that the matter they are seeking a

reconsideration of will genuinely be reconsidered afresh, without any

prejudice arising from the original decision. The reconsideration process is

compared unfavourably with the appeal right available to resource consent

applicants, in which the ‘case’ for approval is reviewable by the environment

Court, which is completely independent from the original decision-maker.

There is no guidance in the Conservation Act on the process or decision-

making criteria for reconsideration. There has, therefore, been some

uncertainty as to its scope—whether it is a complete reassessment of the

original decision, or simply an assessment of whether the original decision

was fair and reasonable in the circumstances, regardless of whether the

reconsideration authority would have made the same decision. This question

has been highlighted with regard to decisions on allocation by tender of

rights to apply for concessions, where ‘reconsideration’ of a tender outcome

is clearly problematic.

Only an applicant can apply to have a concession decision reconsidered. If a

submitter on a notified application is not happy with a decision, they have no

statutory right to seek reconsideration. Their only opportunity for challenge

is through judicial review to the High Court or to lodge a complaint with the

Ombudsman. There is a reasonable question as to whether this is fair.

The reconsideration process

Section 17ZJ of the Conservation Act 1987 provides for reconsideration of

concession decisions:

17ZJ Reconsideration of decisions

Without limiting any other provision in this Part of this Act, upon

application by an applicant for a concession,—

(a) Where the Minister has declined to grant a concession to the

applicant, the Minister may reconsider that decision:

(b) Where the Minister has decided to grant a concession to the applicant,

the Minister may reconsider any decision made by the Minister in

relation to the proposed concession if the application under this

section is made before a concession document is executed.

45

Most concession decisions are made by departmental managers under

delegation from the Minister (through the Director-General). Departmental

policy is that at every stage of decision making—including reconsideration—a

person higher in the delegation chain should make the decision.

There is no guidance in the Act as to how a reconsideration under s17ZJ(a) is

to be carried out, so the Department has policy on this. The policy assumes

that a Conservator has made the decision refusing to grant the application

and that the reconsideration is then required by the GM Ops. In practice,

reconsiderations occur at different levels, e.g. a Conservator reconsidering

a decision made by a Community Relations Manager. The SOP sets out the

following process:

The conservancy that processed the application must ensure that the 1.

application for reconsideration is received in writing, stating clearly why

the reconsideration is necessary, subject to the matters outlined in s17T,

s17u and s17W.

The conservancy should inform the applicant that costs will be recovered 2.

for the reconsideration of the application. An estimate of these costs will

need to be provided for the applicant’s approval before the reconsideration

can be processed further.

Conservancy staff should send the following to the Principal Business 3.

Analyst in their Regional Office:

The applicant’s reasons for requesting the reconsideration (Action 1 •

above);

The conservancy’s comments on the applicant’s reasoning; and •

Copies of the respective reports relating to the original application. •

The Principal Business Analyst in the Regional Office will prepare a brief 4.

report considering the applicant’s reasoning as it pertains to s17T, s17u

and s17W.

The Regional Office will send a copy of this draft report to the applicant 5.

and the conservancy for comment (to be received within 20 working

days). If legal advice is needed by the Regional Office, they will obtain

this through the National Office Legal Services unit. Advice may also be

obtained from the Concessions and Tourism Manager.

Regional Office staff will then incorporate the comments from all parties 6.

into the reconsideration report.

The GM Ops will review the decision and either find in favour of the 7.

Department’s original decision or in favour of the applicant (in whole or

in part). The Principal Business Analyst will then advise the parties of the

outcome.

Conservancy concessions staff will undertake any follow-up work to 8.

recover costs and, if needed, prepare or modify contracts accordingly.

Key features of this process are:

It can be initiated only by the applicant. •

The reconsideration is to be by the manager at the next level up from the •

original decision-maker.

46

The process is at the applicant’s expense and does not proceed unless the •

applicant agrees to pay.

It is a purely document-based process: there is no provision for a hearing •

or for any other form of personal contact between the applicant and

anyone involved in reconsidering the decision.

Provision of all reports relating to the original application implies •

that the reconsideration is to take account of all relevant information

and argument—i.e. that it is a complete re-processing of the original

decision.

The applicant and the conservancy have equal rights to review the •

report to the reconsideration decision-maker and have their comments

‘incorporated’.

Provision 5 implies that conservancy legal advice is subject to review by •

National Office legal staff.

Other existing ‘review’ options

Appeal to the Ombudsman

under the Ombudsmen Act, an Ombudsman is able to investigate complaints

about the administrative acts, decisions, recommendations and omissions

of central and local government agencies, including the Department of

Conservation. Anyone can complain to an Ombudsman—an individual

member of the public, a group of people or a company. Complaints can

address whether a decision or recommendation was illegal, unreasonable,

unjust, oppressive, improperly discriminatory, based on a mistake or fact or

law, or was wrong.

The Concessions SOP notes that appeal to the Ombudsman is an option for

a submitter on a concession application who is unhappy with the decision.

It is not necessarily available to an applicant who has the option of seeking

a reconsideration, as the Ombudsman can decline to investigate a complaint

if an adequate administrative or legal remedy was reasonably available

(s17 Ombudsmen Act). The Ombudsman might, however, agree to investigate

a complaint about the conduct of a reconsideration.

If an Ombudsman decides that a complaint is justified, the Ombudsman

may recommend that the agency responsible takes action to remedy the

complaint. The Ombudsman has no power to compel an agency to accept a

recommendation.

Complaints to the Ombudsman about concession matters seem to be very

rare. The review only identified one example where a complaint was made

(in which the Department’s action was upheld).

Judicial review

The Concessions SOP notes that judicial review is also an option for submitters

who are dissatisfied with a concession decision. It would also be available to

applicants, but as it is confined to dealing with challenges on points of law

and due process it offers less scope to applicants than the option of seeking

a reconsideration.

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Options for change

Clarify scope of reconsideration

It was previously the Department’s understanding that new information

cannot be introduced in a reconsideration. The review concluded otherwise.

As a reconsideration is an administrative (rather than judicial) process, it must

allow for ongoing information gathering and reassessment. The guidance

on reconsideration available to concessions staff will need to be revised

accordingly.

The prospect of new information being introduced in a reconsideration raises

the question of how much may be introduced before the reconsideration

authority is dealing with a matter that should rather be the subject of a new

application. This could be addressed in part by:

Submitters being given further opportunity to comment if a reconsideration •

includes new information relevant to issues raised in their submissions.

The opportunity to apply for reconsideration application being restricted •

to a set timeframe following a decision.

It would still be desirable, however, to provide explicit guidance that an

application for reconsideration should be rejected if it is more appropriate

for the matter to be addressed by way of a new concession application.

This decision could be made with regard to the volume and nature of new

information provided by the applicant, whether it would be likely to attract

the interest of parties not involved in the process to date, and the length of

time since the original decision.

The review explored, but discounted, enabling submitters as well as applicants

to apply for a reconsideration. As noted above, submitters have the options

of appeal to the Ombudsman and judicial review. enabling submitters would

also jeopardise the capacity of the concessions regime to offer finality and

certainty. Multiple submitters opposed to the grant of a concession, for

example, could make successive applications for reconsideration. If any

were successful in reversing or amending a decision, the applicant would

be entitled to seek a further reconsideration. Given that the underlying

statute gives priority to protection and preservation, and requires careful

management of effects, it is not considered that submitters are disadvantaged

by being unable to initiate a reconsideration.

Prescribe timeframes for reconsideration application and process

Currently there is no time limit on when an applicant may seek a

reconsideration of a decision to decline their application. There is no clear

argument as to why this opportunity should be unlimited, given that it runs

counter to the principles of finality and certainty in executive decision making,

which are important for the orderly conduct of Government and business.

Rights to appeal or have administrative decisions reviewed are commonly

subject to time limits for this reason. For concessions, there is the added

consideration that an applicant may re-apply for a concession at any time.

To address this, any application for reconsideration of a declined application

should be made within 20 working days of receipt of a decision. This is the

48

timeframe for applying for reconsideration of an approved application. A law

change is required to implement this.

The maximum timeframe for the reconsideration process will parallel that

for the initial consideration of a concession application. This is consistent

with a reconsideration being a full reprise of the original decision, and gives

the applicant and any other participants a clear understanding of what is to

happen when.

Explicit provision for reopening submissions

Currently, a reconsideration of a notified application does not involve

reopening the matter to submitters for further comment, with an opportunity

to be heard again if that is their wish. The perceived fairness and transparency

of the process could be improved by providing clearly for this to happen if

relevant new information has been introduced.

Reopening submissions and holding a second hearing should be enabled

only when new information is being introduced that is relevant to issues

raised in submissions. This should be determined by the reconsideration

authority. The criterion is necessary both to avoid unnecessary re-hearing

(at the applicant’s cost) and to ensure that submitters are not disadvantaged

by being denied an opportunity to comment on information that might have

influenced their original submissions.

It is not clear whether current legislation enables reopening submissions

and re-hearing as part of a reconsideration. The reconsideration provisions

of the Act are silent on this, while for the original decision the Act expressly

provides for notification and for submitters to be heard. On these facts it

could be argued either that the reconsideration process is entirely open, or

that the contrast with the express provisions for submissions and a right to

be heard on the original decision imply that no further submission or hearing

process is envisaged.

It is concluded that the non-statutory guidance on reconsiderations will be

changed to provide for re-hearing. There is benefit in seeking amendment

to the law to provide more clarity and certainty for both administrators and

participants on these matters.

The review considered whether an application subject to reconsideration

should be re-notified if significant new information is presented, enabling

comment from parties other than the original submitters. It was concluded

that this is unnecessary, particularly if the timeframe for an application for

reconsideration is limited. If a proposal for reconsideration contains so much

new information that a wider range of submitters would be expected, a new

application is more appropriate.

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Independent review with recommendation to Minister

establishing a reconsideration authority with recognisable independence

from the Department will help address perceptions that the process is wholly

‘captured’ by conservation officials and offers no real prospect of unbiased

review.

In establishing an independent reconsideration authority, its content will

be drawn from within existing agencies and statutory bodies (rather than

creating any new statutory positions) and will include:

A representative of the Minister, to ensure consideration of the national •

interest and the Crown’s interest as the landowner.

A person with conservation management expertise. •

A representative of the local community of interest. •

An independent person with experience and expertise relevant to the •

determination of concessions.

A reconsideration authority meeting these criteria will comprise:

A departmental officer, who could fulfill the first two roles. •

A member of the conservation board for the conservancy in which the •

application was made (nominated by the board).

A ministerial appointee, drawn from a pool of qualified people that have •

received training in concession decision making (similar to the pool of

appointees developed for hearing Restricted Coastal Activities under the

RMA).

The pool of potential ministerial appointees will include people with

particular areas of expertise—e.g. in tourism, tikanga Mäori, recreation,

infrastructure, farming—who could be assigned to reconsiderations in view

of the relevance of their knowledge.

The reconsideration authority will be responsible for arriving at a consensus

on a recommendation to the Minister or a delegate of the Minister (e.g. the

Director-General or a GM Ops).

In situations where the original concession decision was made by a

co-management body established to meet Treaty settlement obligations, the

constitution of the reconsideration authority could be subject to consultation

and agreement with the iwi representatives on that body.

Issues arising with this as a possible model for reconsiderations include:

Cost: Non-departmental members of the reconsideration panel would •

have to be remunerated and this additional compliance cost would either

be recoverable from the applicant or would fall on the Department,

along with the cost of any support or expert advice needed by the panel.

Maintaining and training a pool of ministerial appointees would be a cost

to the Department.

Time: Convening a reconsideration panel would take longer than the •

existing reconsideration process.

efficiency: Many reconsiderations are of concession decisions made by •

area managers or CRMs. This process would elevate all reconsiderations

to a high level, which in many instances could be an inefficient use of

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senior managers’ time and be out of proportion to the significance of the

issues raised.

Complexity: Procedures would have to be developed to deal with the •

constitution and conduct of the reconsideration panel in a range of

circumstances, e.g.:

—To deal with possible conflicts of interest.

—To identify appropriate departmental officers for reconsideration (if

necessary) of national and multi-conservancy concessions.

Servicing: A reconsideration panel would need secretarial support and •

could need or request access to expert advice (e.g. legal, technical) from

the Department or other sources. The resources available, and their limits,

would need to be defined.

The costs to the Department are justified in the interests of securing a

reconsideration process giving applicants a higher assurance of robust

review. Costs are difficult to estimate. Reconsiderations are not sought

often, but could be sought more frequently if a more independent process

was seen by applicants as offering more scope for a different outcome. This

could be offset to some extent if the additional cost to the applicant of

the recommended process deterred some applications for reconsideration of

relatively minor matters (which have occurred to date).

The additional complexity and cost to the applicant raises the question of

whether such a process should apply to all applications for reconsideration.

The alternative would be to provide a choice to the applicant. This, however,

could appear to offer a ‘superior’—more impartial—option to those willing

or able to meet its higher costs, with a less satisfactory choice available to

those with fewer financial resources. The review Working Group considered

that since a more independent reconsideration process is desirable, it is

appropriate that in every case reconsiderations should be dealt with in the

same way. The Department, however, will apply further discretion to when

this process should apply and guidelines will be developed to determine

when an independent body is appropriate to use and when one is not. This

will primarily be based on the scale of the reconsideration being sought.

If the reconsideration is only seeking a minor change to a condition, then

establishing an independent body for deciding this may not be necessary.

Independent review with decision-making power

The review considered, but discounted, the option of a more independent

reconsideration authority with the power to make the final decision on a

concession, rather than being limited to making a recommendation to the

Minister. This would challenge the fundamental principle that the Minister

should retain authority over decisions about enabling commercial activity on

public conservation land.

An independent reconsideration authority could have a statutory basis (and

could be an existing body, e.g. the New Zealand Conservation Authority)

or operate under delegation from the Minister (e.g. a standing committee,

constituted similarly to the recommendatory authority suggested earlier). The

risk with such a body would be a misalignment of power and responsibility:

activities considered desirable (or inappropriate) from the Crown

51

landowner/manager point of view might be prevented (or allowed) by the

authority, with the consequences falling on the Department rather than the

decision-makers.

A check on this risk might be a requirement for decisions to be made by

consensus. This would give an effective power of veto for each member of

the authority, however, with some risk of decisions being delayed by conflict

or stalemate, at the applicant’s expense. Such a decision-making authority

could still fail to satisfy some applicants as long as it had some departmental

or ministerial representation, particularly with an effective veto power.

Judicial appeal or inquiry

The option of enabling a concession applicant (and possibly submitters) to

appeal a concession decision to a Court was also considered, but discounted.

An obvious option would be the environment Court. The Court would

undertake the reconsideration and either make a recommendation to the

Minister or issue a final decision.

A benefit of this option would be the Court’s independence from political

influence and the relationships that arise from the Department’s day-to-day

management of public conservation lands. The Court would make decisions

on the facts and the law as it sees it.

It is constitutionally unusual, however, for a judicial body to have a

redetermination role regarding an executive decision. The separation of

powers requires the Courts not to impinge upon the roles of Parliament and

the executive. This underlies the process of judicial review, in which a Court

can assess whether a Minister’s decision was made according to the law, but

not revisit and overturn the decision on its substance.

In notable instances where a Court may review the substance of an executive

decision—e.g. under the Immigration Act and the Fisheries Act—the function

of the Court is to check that executive power is not abusing individual rights

(human rights and property rights, respectively). A decision on a concession,

by contrast, is about whether to grant a privilege, namely the use of public

conservation land for private gain.

The closest approximation that was found to a judicial reconsideration role is

in the water conservation order provisions of the RMA. These provide for the

environment Court to inquire into the recommendations of a special tribunal

on a proposed water conservation order, and report to the Minister for the

environment with recommendations. The Court itself has commented on the

unusual nature of this role, however.

It is noted that a reconsideration role for a Court would significantly increase

the procedural formality and cost of the process. Applicants would be unlikely

to be able to pursue it without legal representation.

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3 . 7 S e C T I O N 1 7 T ( 2 )

Section 17T(2) of the Conservation Act is commonly referred to as the

‘knock-out’ test. Within the first 20 working days of the application being

considered complete, the Minister can decline an application that does not

comply with or is inconsistent with the Act or any relevant Conservation

Management Strategy or Conservation Management Plan.

This provision is hardly used—according to the review, only having been

used twice in the last 5 years to decline an application. One of these was

overturned through the reconsideration process. This is primarily because most

applications require some discretion to determine whether they comply with

or are inconsistent with the Act or relevant statutory planning documents—it

is not black and white. Where it is absolutely clear, the applicant is informed

of this in pre-application discussions and the application is either modified

or not lodged.

There are two additional circumstances where the ability to decline an

application within the first 20 days of considering the application complete

would add efficiencies to the concessions process. The changes outlined

below require a law change.

There has also been confusion over how the term ‘inconsistent’ is

interpreted.

Tendering/expressions of interest

It would be beneficial to enable a decline of an application if it would be

preferable to tender the opportunity or undertake an expression of interest

process. This requires a law change. At present there is limited opportunity

to refuse to process an application. Situations where this could be applied

include:

Where capacity is being reached at a site.•

Where it is a new or novel idea that others may also have an interest •

in in the future, though the site could possibly only provide for one

concessionaire (e.g. wind farms, restaurant in a building).

There are some risks with this approach, as it could be perceived to stifle

innovative ideas and be anti-competitive. It does, however, provide an extra

opportunity for the land manager to manage effectively. It removes the risk

of having to run tender processes later, should a limited opportunity or

monopoly situation occur. This becomes more problematic when incumbents

are involved.

Further work is required to determine how such a provision would work. If

this was included, it would have to be tied to the tender or expressions of

interest occurring within a specified time period of the original application

having been lodged. If this time was not met, the application would then

continue to be processed on its merits. This should be within 4–6 months

of the application being lodged. It may be more appropriate to suspend the

processing of the application, rather than decline it outright. It is considered

53

that this scenario would not be used often, as pre-application discussions

should identify an issue and provide context as to whether the Department

would prefer to tender the opportunity or undertake an expressions of

interest process at this early stage.

CMS or management plan processes are underway

Section 17W(3) of the Conservation Act enables the Minister to decline an

application if the Minister considers the effects of the activity are such that

a review of a CMS or management plan is more appropriate. This is a useful

provision to use if the review process is not presently underway. Some

decision-makers have been using this provision liberally and use it as a reason

to put applications ‘on-hold’ while a planning document is being prepared or

reviewed. This is stretching s17W(3). To avoid this happening in the future,

GM Ops approval will be required to apply s17W(3).

Common practice, however, is to grant concessions that are likely to be

affected by the outcome of the planning process for a short term and then

re-consider them once the planning document is approved. Once again,

the Department is in the position of having created an expectation for the

concessionaire that the activity is acceptable. If the planning process identifies

a limited opportunity, it also creates issues for addressing incumbents’

expectations. The Limited Supply Agreement 2008 (an agreement between

the Ministers of Conservation and Tourism) offers preferential rights to

these incumbents. In this situation, to ensure the issues can be adequately

managed to reflect the reason for the limited opportunity, it may have been

better to decline such applications and enable an open allocation process at

the outcome of the planning process.

It would be useful to either widen the scope of s17W(3) or include provision

in s17T(2) to enable the Minister to decline an application whose affects

could have an impact on a planning document either being formally prepared

or under review. This should only occur in situations where the application

is clearly in contradiction with what the draft plan is intending to achieve.

It should not be used as an opportunity to decline any application being

applied for during this stage of a planning document’s preparation.

‘Inconsistent with’

Staff have raised concern over how the phrase ‘inconsistent with provisions

of this Act or any relevant conservation management strategy or

conservation management plans’ is interpreted. While it is accepted that

this is generally determined on a case-by-case basis and often comes down

to a legal argument, it would be useful to provide some guidance as to what

this can mean in various circumstances. Guidelines with examples will be

provided. Care in the use of such guidelines is necessary.

54

Part 4 effective support

4 . 1 S T y L e A N D C u L T u R e

Issues

Concessions processing and management is critical to public perceptions of

the Department, particularly the perceptions of business and the opinion

of leaders in key sectors such as tourism, energy, farming, mining and

infrastructure networks. However, the Department has not yet managed

to handle its concessions work and relationships accordingly. Some

concessionaires are positive about dealing with us. Too many conclude

from their experience that the Department is uninterested in the benefits

of commercial activities on conservation land, slow and bureaucratic in

responding to proposals, and oblivious to business needs and pressures.

Inconsistency pervades the Department’s behaviour in processing

concessions. There is significant variability in basic matters such as

procedure, use of tools (e.g. the Permissions database, standard forms and

contract conditions), record keeping, communication with applicants, the

core information sought from applicants and prioritisation of applications.

There is a culture of ‘local’ ways of working that is highly sceptical of and

resistant to the introduction of procedures and tools designed to promote

more consistency. Shortcomings in such proposals tend to be cited as reasons

to ignore rather than improve them.

The review found that concessions staff are not generally confident of

having the respect and support necessary to do their jobs effectively. There

is a common refrain of being frequently dependent on others to achieve

progress, while lacking leverage or priority. There is also a common sense

of the work being predominantly administrative and process-focused rather

than characterised by interesting and valued relationships with external

clients and the achievement of worthwhile conservation outcomes.

Valuing concessions work

One of the findings of the 2005 Concessions Review was that the Department

does not value concessions management as integral to its core business. This

still applies, and is the underlying cause of many issues with concessions

processing.

Applicants approach the Department with proposals that are important

to them, but encounter an organisation that gives many other matters

more importance than concession applications. Applicants can detect this

difference rapidly, particularly in the absence of a strong customer service

culture. undervaluing the work has caused the Department to underestimate

the risks to its reputation from resourcing and executing it inadequately.

The relatively low priority given to concessions work has also provided the

leeway necessary for inconsistencies in its implementation. Routine variation

from process and performance standards is not accepted in work that is seen

55

as critical to an organisation’s success. Work that is insufficiently valued is

also poorly tracked and measured, and this is the case with concessions.

Implementing the findings of this review will signal, both internally and

externally, a shift in the value the Department attributes to the work. Key

changes such as mandatory processing timeframes, improved support and

technology, and more effective performance measurement will begin to change

the Department’s style significantly. Operational changes must, however, be

delivered with clear supporting messages from departmental leaders about

the importance of change and the need to readjust organisational values and

behaviour regarding concessions processing.

There will be initial costs to achieve this, particularly in terms of time.

Commitment to these key changes will require some effort and resourcing.

Relationship management

The nature as well as the importance of concessions processing work

needs to be reconsidered. The external relationship management aspects of

concessions processing need more emphasis relative to administrative skills

in staff recruitment, training and professional development.

The concessions audit found that communication with applicants in

the course of processing appeared to be negligible in some cases. The

Key Stakeholder Relationships Research Project (2009) found that the

Department was seen as a reactive and reluctant communicator regarding

its decision-making processes (including concessions), tending to ‘spring

surprises’ on important matters and communicate only when pushed for

information.

even a significantly more efficient concessions process will continue to be

perceived poorly if communication and relationship management are not

improved. Concessions staff need to be able to show an understanding of

business needs, a readiness to engage positively with applicants, an ability

to explain and justify process requirements clearly, an appreciation of the

need to initiate communications with applicants regularly, and an ability

to adapt the means of communication to the needs and preferences of

each applicant.

The Department will need to up-skill its staff and recruit other skills into

the organisation to carry out these tasks (i.e. for concession management

and sound business acumen). Concessions work requires a mixture of good

processing skills, relationship management skills and an understanding of

how business works. The development of the Commercial Business unit will

provide valuable support for concessions processing, particularly regarding

commercial capability.

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4 . 2 P e R F O R M A N C e M e A S u R e M e N T

Performance measurement enables the Department to track whether

concession applications are processed appropriately and to check that staff

are complying with nationally prescribed systems. Performance measures are

key to monitoring and auditing, and the data for their interpretation should

be obtained from the Permissions database system. This monitoring allows

the Department to assess the efficiency of the concessions process.

The current measures are:

The number of concessions processed to cost and time estimates. •

The number of concessions managed (total managed in each category: for •

recreation and non-recreation, and one-off applications).

While these measures would appear to give data on timeliness, there is

variable interpretation of how these are applied. It does not seem sensible to

add the cost and time together. Having more relevant and defined measures

would provide a more robust picture of what is happening.

The Permissions database has the capability to record and report on several

key performance measures. Reporting on performance allows the Department

to keep track of what applications have been received and how many were

processed to standards.

Issues raised

The internal Concessions Audit 2009 identified issues over performance

reporting. It found that prioritising, tracking and reporting of progress does

not occur well or is not followed up by managers or supervisors.

The Audit noted that there is currently no consistent structure to ensure

that statistics reported are accurate and transparent. It revealed that not all

managers use the tools available in Permissions to report on performance;

some use various other tools (such as manual worksheets) to keep track

of what was received and how many were processed to standards. It

also found that many conservancies measure their performance against

their own forecast instead of measuring against the actual number of

concessions received.

The consequence of this practice (i.e. using different tools to report on

performance) is that management may experience difficulties in making

appropriate comparisons in terms of performance. As a result, they are unable

to measure the efficiency of the concessions process.

The Concession Audit found that many staff do not place a lot of reliance

on the reports generated by the Permissions system because they appear to

be inaccurate. A lot of this inaccuracy is predominantly due to incomplete

information being entered into the database. The implications are that

performance measures reported may be inaccurate. The Audit identified

that the Permissions database system must be used consistently across the

Department; staff need to ensure that the system is being used to the extent

it is able to provide consistent, accurate and reliable information. It further

57

noted that measurements need to be clearly specified and must be uniform

across the Department for meaningful comparisons to be made.

The Department will establish new performance measures that will reflect the

new process. These will form the basis for effective quantitative monitoring to

measure improvement in the timeliness of processing. This will be beneficial

to both staff and managers, as these measures will clearly outline what is

expected of each person and identify everyone’s responsibilities. This will be

addressed in MOR processes. It will also allow managers to identify where any

improvements are required or where training or support may be needed.

4 . 3 P R e F e R e N T I A L R I G H T S

First in, first served

The first in, first served principle still applies in the new process. That is, the

first application received is the first to be processed. This rule is not in the

Conservation Act; however, it is administrative law.

The new process will help enforce the first in, first served principle.

Applications will be date-stamped the day they arrive, clearly defining the

order in which they must be processed. Clarity of process and certainty of

what will happen when will help enforce the first in, first served principle.

Re-issues

Pressure for ‘rights of renewal’

Concessions are issued for fixed terms and there is no statutory right or

presumption of renewal when the term expires. Concessionaires nevertheless

commonly expect that if they have complied with the conditions of their

concession, paid their fees and generally maintained a positive relationship

with the Department regarding their operation, there will be a de facto

presumption in favour of a further concession being issued if they want it.

Concessionaires naturally have an interest in making their lease, licence or

permit as secure as possible. Where a concession is essential to the viability

of a business, it is often argued (plausibly) that a lengthy term (at least 10

to 15 years and often much longer) is required for the business to be able

to secure finance. It is argued that fixed-term concessions without a right

of renewal do not sufficiently recognise business needs for certainty and

security; and that this, in turn, does not serve the interests of conservation,

as it discourages long-term investment in quality operations.

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Current approach to incumbent operators

Although there is no statutory right or presumption of renewal, in practice

the administration of concessions is favourable to incumbents in several

ways:

The Department sees value in maintaining relationships with commercial •

operators that have a ‘good record’ and who have developed an

understanding of how the Department prefers them to operate on

conservation land.

Decisions on concessions must have regard to information relating to the •

applicant, including ‘any information relevant to the applicant’s ability

to carry out the proposed activity’ (s17S); which, for a ‘renewal’, will

include the applicant’s operating record.

The Department has defined a streamlined ‘re-issue’ process for dealing •

with applications for ‘renewed’ concessions. This is a shorter and cheaper

process.

Many concessions are subject to ‘rolling on’ (i.e. concessionaires are •

allowed to continue operating after the expiry of their concession, usually

on the presumption that a new concession is in progress).

As a result of the Limited Supply Agreement, the process for allocating •

concessions in areas of limited opportunity favours incumbent operators

by providing for an initial preferential right to apply, followed by a

pro-incumbent weighting in subsequent tenders.

Many developments are effectively accepted as having lifetimes far in •

excess of the concession term (e.g. buildings, roads and infrastructure).

There are some situations where there is one logical concession—for •

example, grazing licences where the farmer is often the only person who

wants to, or is able to, graze the land.

The Limited Supply Agreement was set up between TIANZ, the Ministry of

Tourism and the Minister of Conservation. The agreement deals with the

allocation of limited concessions on public conservation land. It agrees

on a new process to manage tourism-related Limited Supply Concessions,

which are concessions where limits need to apply to visitor activities at

particular sites (due to more applicants seeking a concession than there are

opportunities available). The agreement allows Limited Supply Concessions

to be managed consistently throughout the country.

Providing certain conditions are met, the agreement offers the existing

concessionaire another 15 to 20 year operating timeframe. At the end of

this period, an open tender process will be run, with criteria that give

a weighting to the performance of the existing concessionaire. If a new

opportunity is identified, then there will be an open tender process to find

the best concessionaire.

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The new process will be phased in as current Limited Supply Concessions

come up for renewal. The agreement allows for preferential rights.

Concessionaires will be asked to participate in a Preferential Right to Apply

(PRA) process. The incumbent concessionaires must meet the necessary

qualifying criteria to be eligible for a PRA for a concession re-issue.

This process for allocating concessions in areas of limited opportunity is

supportive of incumbents’ rights; it favours incumbent operators by providing

for an initial preferential right to apply, followed by a pro-incumbent

weighting in subsequent tenders.

There are significant advantages already for incumbent concessionaires,

including the implementation of the Limited Supply Agreement. If further

opportunities are to be enabled, there is a need to balance this with protection

of the underlying public interest in conservation land. The more incumbent

concessionaires’ interests are protected, the closer a concession comes to

effective privatisation of a public asset. Protecting incumbents also limits

competition. This limits the Crown’s ability to identify a fair return (through

concession fees) and tends to stifle innovation, promote monopoly or cartel

pricing, and limit consumer choice.

The re-issue process

Part 3B does not currently allow for a right of renewal; however, the

Department allows for concessions to be re-issued. The re-issue process

provides a preference to incumbents. It allows the Department to easily

consider reapplications from existing concessionaires for their existing

activity. This is a relatively new process and the benefits are yet to be fully

realised.

The re-issue process recognises that an application for a concession that

exactly replicates an expired concession, with the same applicant, will

often not require the same consideration as a new application. Having such

a process enables the Department to reduce the time and effort spent on

such applications; freeing resources for other work (e.g. more demanding

concessions processing). The re-issue process is designed to apply where

the existing and potential effects of an activity are unchanged and well

understood, and the applicant’s operating record is known and acceptable.

The nature of the permission sought is also significant; however, this is a

non-notified process and can currently only be used for permits for up to

5 years or easements that do not require public notification. A re-issue is not

available to an application that requires public notification.

The current Concessions SOP states that, for the re-issue process to be

applicable, the application must be made by an existing concessionaire no

more than 6 months before the expiry of their existing concession or at the

Department’s discretion up to 6 months after expiry of the concession. The

latter option enables concessions to continue beyond the expiry date; this

concept is known as ‘rolling-on’. Rolling on of concessions is not provided

for by the Conservation Act.

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‘Rolling on’

The practice of ‘rolling on’ concessions is questionable. There is no provision

in the concessions process for rolling on, and in fact carrying out an activity

without a concession, when one is needed, is an offence. Curiously, however,

the Permissions database enables the recording of concessions that are rolling

on, as does the Concessions SOP.

There are major risks involved with allowing expired concessions to ‘roll

on’ where there is no statutory provision for this. If this practice continues,

it has the potential to put the Department in a challenging position. If the

concessionaire has failed to re-apply for their concession, they should not

be allowed to operate; and if they do continue to operate, the Department

would need to consider prosecution.

It is essential that ‘rolling on’ should be stopped. As an initial step, a non-

statutory requirement that conservancies contact concessionaires alerting

them of the upcoming expiry date and encouraging them to re-apply well

before their concession expires will occur. Some conservancies already carry

out this proactive practice. The Department will advise concessionaires at

this point that there is a chance others could apply for the same activity in

the same location—this creates another incentive for the concessionaire to

get their re-application in early (as the first to apply is the first processed).

A financial incentive could be used to encourage concessionaires to re-apply

early. For example, it could cost applicants less if they re-apply 12 months

before the expiry date. This would create an incentive to re-apply early,

helping avoid pressure to ‘roll on’ concessions. Responsibility needs to be

put back on the applicant. The Department needs to discourage applicants

from lodging their application only weeks before the expiry date of their

existing concession. Instead, the Department will encourage the lodgement

of applications at least 6 months before the expiry date of the existing

concession, as this should be sufficient time for the Department to process

the majority of applications.

Section 124 of the RMA says that where a resource consent is due to expire

and the consent holder applies for a new consent for the same activity, the

holder may continue operating under its existing consent (after the expiry

date) until their new consent application has been determined. However,

this only applies if the new application is made to the council 6 months or

more before the expiry of the existing consent, or 3 months or more with

the consent of the council. If these timeframes are not met, there is no right

to operate once the existing consent expires. When determining these types

of applications, the consent authority is required to have regard to the value

of existing investment.

No similar right exists under Part 3B of the Conservation Act. Therefore,

once a concession expires there is no statutory provision that allows the

concessionaire to continue operating until a new concession has been

granted. A similar provision should be applied to the concessions process.

This will require a law change.

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4 . 4 P L A N N I N G

Feedback received from industry and within the Department indicated that

commercial operators want the departmental plans/strategies to contain

clear direction about what and where concession activities are appropriate

(and inappropriate). That is, plans should provide clearer identification of

opportunities through outcomes of place. Applicants recognise that this will

provide them with more clarity on where they can apply and will provide

more certainty on the likelihood of gaining a concession. Concessions staff

recognise that it will make decision making faster and simpler. The review

process heard that better guidance on national planning is required. These

messages were heard universally across the Department. Some have asked

that permitted activity schedules be included in planning documents. This

will significantly streamline application processes for activities included on

the schedule.

Management planning (CMS/CMP)—proactive planning

The Conservation Act dictates a close relationship between concessions and

management planning. Key provisions of relevance include:

Section 17T(2), which has already been discussed above. This section •

indicates that a planning document may expressly state certain applications

are inconsistent or do not comply.

Section 17W(1) states that the Minister shall not grant a concession unless •

the activity is consistent with the planning document. This indicates that

the planning document may provide for a type of concession, either with

or without parameters.

Section 17W(2)(b) states that if a planning document does not provide •

for the activity, the Minister may still grant the application based on it

meeting a series of other tests. This indicates that a planning document

can be silent on the issue of the type of concession.

The National Parks Act provides direction for how some activities are to be

addressed in management planning documents. For example, if the Minister

is to grant authorisation for accommodation and roading development, these

activities shall be in accordance with the national park management plan. If

the activity is not provided for, the application is unlikely to be granted.

The Conservation General Policy 2005 and the General Policy for National Parks

2005 both include specific policy direction on what management planning

documents should contain. For example, the Conservation General Policy

states that planning documents will identify where vehicles and animals can

go on public conservation land. Both these activities are commonly applied

for as concessions. Policy 9.1(d) states that conservation management

strategies should identify what types of recreational opportunities, activities,

information, accommodation, facilities and services (including those

provided by concessionaires) are suitable in different places and to what

extent. There is a similar provision in the General Policy for National Parks.

There are many more policies similar to this that directly or indirectly relate

to concessions. The general policies envisage the Department’s planning

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documents providing some direction and certainty for various concession-

related activities.

The Concessions Review 2005 made several recommendations relating to

the need for more guidance and specificity regarding concessions in the

Department’s statutory plans. It noted that plans do not give iwi, applicants

or stakeholders clarity or certainty with respect to the collective vision

regarding what will be acceptable. The review recommended that CMSs

and CMPs must provide clear direction for integrated outcomes at places.

It noted that CMSs and CMPs should establish, where required, descriptions

of activities that conform to the outcome statements for places and, along

with this, a description of the allocation and rationing approach to these

concessions opportunities.

The primary recommendations made by the 2005 Concessions Review

aimed to transfer the planning for conservation and visitor outcomes from

the application consideration process to the statutory planning process. It

considered this would provide a better standard of planning and a more

inclusive process for iwi and stakeholders; and would simplify and improve

application processing, thus freeing up departmental staff for monitoring

and compliance work. It would also provide a better level of certainty,

transparency and efficiency. This position is still valid.

However, recently departmental leadership has portrayed the view that

management planning documents need to be more strategic and flexible.

This approach conflicts with the recommendations of the 2005 Concessions

Review and the findings of the 2009 review.

The review Working Group heard from external stakeholders about

inconsistency in decision making. For example, one concessionaire

commented that between the changes of departmental managers their

application went from a decline to approval. While this was advantageous to

them, they considered it unprofessional. The planning document was very

vague and could have led to either decision.

The conforming concessions process is the first process that requires staff to

forward plan and assess which low impact activities are appropriate where,

and to what thresholds; and to make that information publicly available. It

is essentially a pre-approval of specified concession activities at places. This

process has recently become operational and is expected to result in much

more efficient processing and management of conforming concessions.

Guided walking and tramping are the only conforming activities included to

date; however, it is intended that several other popular low impact activities

be added this year (refer to section 4.5 Conforming schedules). This process

is strongly reliant on planning documents being clear about what activities

conform for the schedules to be developed.

The growth in the number of ‘Limited Supply’ situations (where the amount

of allowable concession activity is capped) is also resulting in the need for

some conservancies to undertake proactive planning work around how much

activity to allocate, and to whom; and to reflect this in their management

plans/CMSs. Last year, the Director-General signed an agreement with the

Ministry of Tourism and the Tourism Industry Association on an allocation

mechanism for use in such situations (refer to section 4.3).

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Staff are often responsible for doing both the planning and the operational

work; this often means that little time and resources are invested in planning,

because staff are kept busy processing applications. Proactive planning takes

time, but is beneficial later. The review Working Group heard across the board

that the Department needs to do more proactive planning. Proactive planning

ensures the right activities are in the right place; it identifies opportunities,

but also identifies areas where protection is the highest priority.

The Abel Tasman National Park Plan Review carried out by the Nelson/

Marlborough Conservancy is a good example of how successful proactive

planning can be. The Conservancy noted that doing the hard thinking in

the informal part of the plan development has worked. They consider that

defining the outcomes for the place is essential before focusing on what

activities are appropriate. The Conservancy invested time with the local

operators in developing an approach to managing boating operations prior to

the plan being notified. As a result, the operators did not have any significant

issues when the plan entered its formal stage. The granting of concessions

has been quick as a result.

Proactive planning can result in the concessions process being quicker, more

consistent and more transparent.

Permitted activity schedules in management planning documents

There are many activities presently requiring concessions that are

indistinguishable from activities the Department actively provides for, such

as low impact guided walking and commercial photography. unless there is a

limited opportunity situation applied, it is likely that these types of activities

will be approved.

It is possible to apply simpler processes (enabling regulations/bylaws and

schedules to do this is discussed later in section 4.5). Planning documents

could include schedules for permitted activities (noting that they would

still require a permission of some type to pay a rental and meet other tests

regarding safety and insurances). This is an approach used by other protected

natural area agencies internationally. This will require a law change.

Planning documents are presently unable to fetter the Minister’s decision-

making role on concessions, so it is not possible to include a schedule enabling

activities to be permitted, other than as guidance for the decision-maker. An

option could be created to enable the Minister to approve the schedule,

therefore removing the issues around fettering. Including such schedules

would reduce time in processing applications, reduce costs to the applicant,

and create the certainty most external stakeholders are asking for.

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Commercialisation planning

This review identified that the Department does not carry out sophisticated

commercialisation planning as many other countries do. Research undertaken

during this review found that most Australian states, the uSA, and Canada put

more effort into their planning of commercial opportunities. For example:

The uSA produces commercial service plans detailing the business •

opportunities, levels and standards, and then allocates commercial rights

by tender.

Namibia undertakes multi-disciplinary tourism planning for new national •

parks, incorporating the results into national park management plans and

then tendering the identified opportunities.

The planning and zoning for activities on the Great Barrier Reef is very •

clear and easily available online. This provides tourism operators with

certainty about where they can and cannot apply for concessions.

There is an acceptance in Tasmania and Namibia that protected areas must •

play a greater role in economic development. Parks plans are therefore

more proactive in identifying business opportunities and also identifying

areas that should not be developed.

Parks Canada and the Great Barrier Reef Marine Park Authority in •

queensland have put considerable effort into planning for low impact

activities. This means that it is very easy for applicants who conform to

these standards to get their application processed rapidly, at minimal cost

both to the applicant and the agency involved.

This approach is mostly reflected in the content of relevant statutory

planning documents. Commercialisation planning is essentially a subset of

wider integrated planning exercises.

Better planning for commercial activities allows for more effective

management of the actual resource. As a result, less time is spent reactively

looking at individual applications. It is important that this is not looked at

in isolation to the overall planning for a place. Providing for commercial

activities is just one of the opportunities a place can be managed for.

The Commercial Framework Project 2009 identified commercialisation

planning as something the Department should focus on. This would be very

beneficial, though not in isolation of wider based place planning.

National planning

Departmental staff have expressed a need and desire for national planning and

direction in order to help guide decision making and to enable a consistent

approach on issues of national importance or interest. Feedback from staff

indicated that there is currently insufficient national direction/policy for

how some activities should be managed (e.g. energy generation).

The departmental approach to dealing with national issues such as energy

generation, WARO, etc. needs to be considered in the national context, and

a cohesive strategic approach developed for their management nationally.

Senior management then needs to be responsible for ensuring that a

consistent approach is followed throughout the country. Tools presently

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being developed will assist in providing national direction on some matters

affecting concessions—for example, the Destination Management Framework.

Other issues that regularly came up where national guidance would be

appropriate include aircraft management, grazing, heli-hunting and access

for concessionaires to wilderness areas.

The Department needs to focus on and provide more national planning and

direction.

What does planning need to achieve?

Planning documents or processes should do the following to enable decision

making on concessions to be quicker and more consistent:

Be part of an integrated planning approach for place.•

Describe the outcome for a place with enough guidance so it is clear what •

values are being managed for into the future. These outcomes need to be

clear to enable a concession decision-maker to make a quick decision, and

also so an applicant has some certainty about whether the activity can

occur there or not.

Have clear rules around what is being allocated, if opportunities are to be •

limited or allocation process are the preferred options. These need to be

developed as part of a planning process.

Be clear about what is or is not allowed—it should be easy for both •

applicants and staff to determine what is or is not complying.

Provide more national guidance through General Policy or other policy •

development—this avoids localised decision making on matters requiring

national consistency.

Focus on proactive planning.•

It is important that planning documents contain clear outcomes and policies.

Planning documents should be clear enough to enable every decision-maker

to reach the same conclusion.

Issues were raised around the length of time it takes to approve or amend

statutory planning documents; and the fact that these documents are approved

by a body (the NZCA or conservation board), who are not responsible for

its implementation. This has resulted in concern around including detail in

these documents that holds the Minister to making a particular decision for

at least a 10-year timeframe. There is some value in reviewing the process

around reviews and amendments to statutory planning documents to see if

this could be streamlined in some way. This would enable statutory planning

documents to be more ‘living’ and adaptable to change.

There should be better regional coordination of approach/planning between

neighbouring conservancies (lines on a map mean nothing to the public or

operators); and also better coordination with RMA plans and other local

government planning documents, especially LTCCPs.

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4 . 5 S T R e A M L I N I N G A N D S T A N D A R D I S A T I O N

Streamlining

The law is clear on what activities require a concession. Part of looking

for efficiencies within the process is to consider whether all the activities

presently requiring concessions should still be concessions.

Requiring concessions enables three actions to occur:

The ‘landowner’ manages or is aware of all activities occurring on public 1.

conservation land.

The effects of the activity are managed. 2.

Rental is gained from those obtaining a private gain from a public 3.

resource.

Those obtaining a pecuniary gain from a public resource should require some

form of approval from the Department, particularly in terms of paying a

rental or fee for the privilege. It is also important for the land manager to

know what is happening on the land it manages. The Department needs some

ability to track activity levels of those undertaking such activities and, in

particular, manage cumulative effect. Concessions enable this to occur.

There are, however, opportunities for reducing the bureaucracy around

the concessions process for some activities. This is particularly relevant

to activities that are indistinguishable from the day-to-day activities the

Department provides on public conservation land.

Conforming schedules

The 2005 Concessions Review recommended the use of conforming schedules.

The intention of these schedules is to simplify the application processes for

applicants. They essentially create a list of permitted activities, which will

always be granted, provided applicants:

Apply for exactly what is listed on the Conforming Activity Schedule/s. •

Can show they are able to carry out the activity. •

Gain independent auditor’s approval for their Safety Plan. •

Obtain the required insurance. •

Pay the application fee. •

An activity is only considered conforming if it is listed on a published

Conforming Activity Schedule and:

Conforms to statutory plan provisions/outcomes. •

Has little or no discernable effect and any effects are understood by the •

Department.

Is a permit that can be granted without public notification. •

In the case of recreational activity, is consistent with general recreational •

use with regard to the activity, frequency and party size.

If an applicant applies to undertake an activity on a conforming schedule,

they will have their concession within 5 working days. Applicants apply

online, therefore reducing the paperwork and staff contact required. The

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cost of this process is substantially less than the fees for low impact, high

impact and most re-issue concessions. Standard contract and conditions are

used. There is no ability to vary from these.

It has taken some time to develop this concept and at present it only applies

to guided walking on identified tracks. This is now operational (as of

March 2010). It is too early to judge whether this process will achieve what is

intended in terms of reducing effort and making the process quicker; however,

assuming it will, it is considered that this is an approach the Department

could use more widely.

Over the next year, conforming schedules should be investigated and

developed for the following activities:

Mountain biking •

4-wheel driving •

Photography •

Guided hunting and fishing•

Bee-keeping •

In order to leverage the full benefits of this process, it would be preferable

to allocate the task of processing applications for conforming concessions

to one or two conservancies. This is discussed later, under section 4.12

Structure.

Conforming schedules can be used without amending the law.

Permitted activities—use of regulation/bylaws or schedules

There are some concession activities that are either indistinguishable from

activities the Department provides for (e.g. some guided walking, hunting

and fishing activities) and/or have minimal effect (e.g. photography) where

it could be argued that they should generally be permitted (with some set

conditions). While the conforming schedule process provides for a simplified

concessions process, a reasonable degree of effort is required to establish

conforming schedules. The review considered whether other tools could be

used that would take the concept of conforming and simplify the concessions

process even further.

One option is to use regulation and/or bylaws to provide for activities as

‘permitted’ activities. The regulation/bylaw would provide for specified

activities under set conditions without the need for a concession as it is

recognised today. It essentially would enable the activity to occur, though

still establish a regime for rental to be obtained and information on activity

levels and locations to be provided. The advantage of using regulation/bylaw

is it can be changed more simply than the law itself.

Some examples discussed included photography and guided walking where

it involves, for example, a party size of 12 people on tracks. Based on what

the review Working Group heard from conservancies, many conservancies

do not actually require a concession for an individual who is undertaking

commercial photography, as the impacts are minimal; nonetheless these

people are still obtaining a private gain from a public resource, so should

expect to pay for this privilege. Guided walking would be more difficult, as

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criteria would need to be defined to ensure as minimal an impact as possible

was achievable. Some forms of grazing could also be considered in this light,

particularly for those places that do not adjoin water-bodies.

An alternative option to this would be to add a schedule to the Conservation

Act that could essentially do the same thing; however, that would be

more permanent. It may be more appropriate to consider this, as what is

proposed is modification of the definition of a concession under Part 3B of

the Conservation Act. This is more a principle and policy matter, which the

Legislation Advisory Committee guidelines indicate should be in the primary

legislation rather than in delegated legislation such as regulation. It would

also require substantial work to determine what activities this approach

might be best suited to. Activities allowed for in the regulation/bylaw or

schedule that are indentified as limited opportunities in statutory planning

documents or are opportunities being tendered should not be considered as

permitted activities.

Regardless of whether regulation/bylaw or schedules were used, it would

require significant change to the law. The regulation- and bylaw-making

powers under the Conservation Act, Reserves Act and the National Parks

Act do not include enabling regulatory powers for concessions. essentially,

they only relate to providing for forms and other administrative aspects of

concessions processing. It is also important to note that the process for

preparing regulations is not simple and can be time consuming. They are

approved by the Governor-General. Bylaws are much simpler (note these

can be prepared for national park and reserves only) and are approved by

the Minister. The addition of a schedule to the legislation goes through the

normal legislative amendment process.

This is an approach that should be investigated further as it could, in the long

term, remove effort presently put into processing concessions and reduce

costs to applicants. The review Working Group does caution, however,

that more gains could be made from focusing on the conforming schedule

approach initially or possibly amending the law to enable permitted activity

schedules to be used in planning documents.

National concessions

National concessions are used to streamline effort required by applicants.

National concessions are offered in two ways. The first relates to a concession

held by a single business that operates throughout the country; and the other

is through using a standard concession negotiated with a formal group of

operators undertaking the same activity.

Where it relates to a single business operating throughout the country, a ‘lead’

concession is used setting out standard conditions. This lead concession is

then repeated each time the business wants to undertake the same activity

at a different site throughout the country. Some site-specific conditions are

also added. It essentially means that discussions are only held about anything

that is different from the standard agreements reached. It has only been

used to date for telecommunication providers and Transpower. Transit has

expressed interest in using this approach as well. This is an effective tool and

should be applied to other nationally occurring businesses.

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Where it relates to a standard concession negotiated with a formal group

of operators, a legal entity is required to enable a collective concession to

be granted. The concession is granted to the legal entity, which is then

responsible for ensuring its members abide by the concession. To date,

these types of national concessions have been granted to the Bus and Coach

Association and the NZ Professional Fishing Guides Association. These

concessions are useful for activities that have very low impact and are carried

out by many people in a variety of places which change frequently. These

agreements have tended to take substantial effort to reach a conclusion. The

Bus and Coach Association Agreement has taken in excess of 10 years. It is

not certain that these agreements actually provide increasing efficiencies for

concessions processing. They are also problematic in addressing cumulative

effects. Conforming schedules are likely to be a more useful tool.

Simplified reports and applications

Some of the reports prepared tend to be very complex and at times repetitive,

particularly for low impact activities. The review Working Group heard

unanimously from departmental staff that there is a need to rationalise the

report writing required. Many reports repeat plan provisions, rather than

summarising this information. The law is often repeated in detail, rather

than referred too; and there is content that is repeated within the reports.

Reducing the level of detail will be useful for the report writers, and also for

those who have to read the reports.

The Department’s website includes ten different application forms,

depending on the type of activity being proposed. except for the options

for one-off permits, the application forms are slightly repetitive. The review

Working Group was told by some departmental staff that some applicants

find them difficult to fill in. To some extent, this could be due to a lack of

understanding on the level of detail required and what some of the sections

are actually asking for. Previously mentioned improvements for including

copies of complete applications and associated contracts on the Department’s

website will assist applicants’ understanding of what is required.

Changes to make both the officer report and application form simpler can

occur immediately.

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Standard conditions

All concessions include conditions relating to any range of matters.

Concessionaires (who obtain concessions from more than one conservancy

for the same activity) commonly criticise the inconsistencies in content of

conditions relating to the same matters. This is alarmingly evident in many

multi-conservancy concession documents.

The Department has attempted to resolve this consistency issue by

developing standard conditions. The Department has four types of conditions

it imposes on concessions:

Individual conditions—these include concessionaire’s detail, location, •

activity, insurance details and fees payable.

Standard conditions—these apply to all concessions and relate to •

terminations, costs, compliance with other statutes, indemnities and

insurance, payment of fees, monitoring, activity return forms, health and

safety, and so on. These are mandatory in all concession documents.

Standard special conditions—these have been developed and are used •

for guiding, grazing and easements. They are expected to be used

nationwide.

Special special conditions—often these are a derivative of the standard •

special conditions. They address the ‘uniqueness’ of a particular

conservancy’s needs with regard to a particular activity or location.

There is a growing tendency for some conservancies, if not all, to suggest

that the standard special conditions do not fit their particular conservancy’s

needs. Often the variations to the standard special conditions are then

included, even though they are often not that different. This is unnecessary

and wastes valuable time when effort has already been placed in developing

well-tested standard special conditions. It creates a perception of lack of

professionalism with concessionaires.

The use of standard special conditions should be mandatory unless there are

clear and demonstrated reasons for additional special conditions to be added

to a concession contract. Staff will be encouraged to delete any standard

special conditions that do not apply to the concession being granted.

Developing future standard special conditions for different activities will be

prioritised based on the volume of concessions processed. use of standard

conditions will enable a consistent approach to be applied, reduce the effort

in developing conditions and enable the applicant to know what conditions

will be applied.

In addition to adding the standard concession contract documents to the

Department’s website, inclusion of the standard special conditions would be

useful not only as a tool to inform applicants but also as a tool to discourage

variations to these, unless they are absolutely necessary.

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4 . 6 A L L O C A T I O N M e T H O D S

Allocation of concession opportunities is a tool commonly used internationally.

This section addresses allocation methods used to allocate limited opportunities

where they will attract more than one interested party. Comparing allocation

systems used in New Zealand with other protected natural area agencies in

Canada, the uSA, Australia and Namibia, the Department is very conservative.

In fact, in most instances, the Department only uses one tool—tendering—

and this is in quite a narrow way as defined by law.

There is significant criticism of how the Department undertakes allocation

of limited opportunities at present, primarily as a result of 2–3 controversial

processes run over the last couple of years. The tourism sector, in particular,

has raised concerns over tendering processes and the lack of recognition

of incumbents’ investment in allocation processes. The Limited Supply

Agreement has addressed issues around incumbents’ rights, though there

is still much room for improvement on the way the Department allocates

opportunities.

Allocation of commercial opportunities can be used:

Where a limited opportunity has been identified. •

Where a new area of land has come to the Department without significant •

encumbrances.

Where a new approach or outcome is being proposed for existing areas. •

experience from overseas demonstrates that allocation systems only work

well where they are used in conjunction with proactive planning. The values

and outcomes of a place determine the need for allocating opportunities. In

order to allocate something there needs to be scarcity of supply. A process

needs to be undertaken to determine whether a limited supply exists. To

create a market value, the limited opportunity needs to be certain and not able

to be undermined. It would have no value if another applicant could come

in over the top of the allocation process and apply for the same activity (this

can happen in the New Zealand context at present).

establishing the limited opportunity in a statutory

document can provide this certainty and ensure its

enforceability, though is not entirely reliant upon

this.

It needs to be clear why an opportunity is being

allocated and how it fits into the overall management

of place. Investment into new allocation tools should

only occur if there is a commitment to undertake

proactive planning for places (statutory or non-

statutory). This means commercial opportunities

should not be identified in the absence of clear

outcome-based planning—this includes considering

all values and opportunities a place has to offer.

Good examples of this include the conforming track

process and the management of boat landings in Abel

Tasman National Park.

Goals, objectives and milestones

(legislation and policy)

Values and outcomes

(inventory of opportunities)

quota

Allocation (proactive tender, auction,

preferential allocation)

Monitoring

Commonly used planning and allocation model.

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using allocation tools to provide for commercial opportunities on public

conservation land is likely to create a market value for the product being

allocated (if there is a market there in the first place). The extent to which

this offers value is not clear. It would be worthwhile for the Department

to develop indicators to measure the economic value of such limited

opportunities over time.

New allocation tools would assist in managing and providing for commercial

opportunities on public conservation lands. Guidance about how these tools

can work can be taken from the international examples considered as part of

this review. It is not necessary to re-invent the wheel, though it is necessary

to trial some of these options so the Department can build up skill and find

what works well in New Zealand. The Commercial Business unit could be

responsible for this task.

Some models worth considering include:

Wider scope for tendering •

expressions of interest •

Auctions •

quota •

Ballots •

Banking•

Some of these options would require a change to the law. If such changes

are progressed, it would need to be done in conjunction with a law change

to s17T(2), which enables the Minister to decline applications if it is best to

use an allocation system.

Limited Supply Agreement

In 2008, the Minister of Conservation and the Minister of Tourism, in

conjunction with the Tourism Industry Association, signed an agreement

addressing concession allocation in limited supply situations. It is commonly

referred to as the Limited Supply Agreement (LSA). It only applies to

tourism-related concessions, though the principles could be applied wider.

It provides for preferential rights to incumbents and applies to all limited

supply opportunities expiring prior to December 2018. Post 2018, all limited

supply opportunities will be subject to contestable allocation process. It

is expected that incumbents will be given a preferential weighting once

contestable processes are run. This has been discussed earlier.

The Agreement does include provision to deviate from this framework,

though this decision is made by the relevant GM Ops after having sought the

views of the Ministry of Tourism and Tourism Industry Association (NZ).

To some extent, this Agreement will impact on the ability to use the

allocation tools suggested below for some years to come where incumbents

are involved.

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Tendering opportunities

Tenders are key mechanisms for fairly and transparently allocating rights in

situations where demand exceeds supply. Tenders can be run as ‘open’ (anyone

can apply) or ‘closed’ (a pre-selected group). Section 17ZG(2)(a) enables the

Minister to tender the right to apply for a concession, invite applications or

carry out other actions that may encourage specific applications.

When the tender provisions are applied, the successful tenderer only wins the

ability to apply for the activity, not the opportunity itself. The tender winner

must then go through the normal process of applying for a concession. It is

possible that the applicant could still have their application declined, even

though they won the right to apply.

This is time consuming and costly. It means that the applicant has to go

through two processes. The 2005 Concession Review recommended that

this section of the Act be amended to enable the tendering of an opportunity

rather than the right to apply. This would mean a contract is tendered—the

opportunities are defined with the conditions of operation included. Once

awarded, it would remove the need to go through a separate concession

application process.

There are some key questions that require answering before this should be

progressed further:

How is public engagement enabled through tendering an 1.

opportunity?

Most applications that are successful under s17ZG(2) often involve a

concession application that is notified. The public get the opportunity to

comment on the application. At present, the key reason for a concession

being tendered is due to a limited opportunity being identified. Limited

opportunities generally result because a place is reaching capacity

(managing to reduce effects on other people or things) or there is

competition for the opportunity identified (e.g. if it is a monopoly).

enabling public submission on these issues is appropriate.

The public engagement opportunity would be removed by tendering an

opportunity only. The ability for public submission would need to be

replaced. This could be achieved by identifying this opportunity in a

statutory planning document for which the public has the ability to be

involved informally and formally. It is possible to run informal consultation

processes to assist in defining what appropriate conditions of the tender

opportunity are, though this would not provide the transparency and

certainty many people are seeking in the concessions process. enabling

public engagement through a public submission process on the tender

conditions prior to it being offered could also address this. This will

require law change.

Is there greater willingness to pre-plan?2.

Tendering an opportunity requires the Department to commit to the

activity being approved. This involves already having undertaken the

assessment of effects, and planning the outcome desired at a place and

what activities are appropriate to occur there. This is not something the

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Department does well at present. This should also occur when offering a

tender for the right to apply, otherwise the Department could be in the

difficult position of declining an activity that it has actually offered.

Can the Department improve how it tenders? 3.

Tendering concessions is an action the Department is using more regularly.

It is necessary to provide far better guidance on how this should occur.

In particular, guidance should be provided on when tenders should and

should not be used; and direction on what criteria should be used to select

successful bidders. If the Department is not prepared to do this, then

streamlining the tendering process would be ineffective.

Are other contemporary allocation tools better? 4.

It may be more pertinent to amend the legislation to enable a wider range

of allocation tools to be used other than tendering. Some of these are

discussed below.

This option will require a law change. When an opportunity arises, s17ZG

of the Act will be amended to enable for the tendering of the opportunity,

rather than the right to apply. A pre-requisite to this will be for the

Department to engage in proactive planning. Consideration should also

be given to other allocation tools that are available. The Department does

not need to be constrained in the tools it can use for allocating limited

opportunities. Some options are outlined below.

Expressions of interest

expressions of interest have primarily been used by the Department to

find out who may be interested in an opportunity, rather than what the

opportunity could be.

expressions of interest can be used to assist in identifying the ‘what’ as well

as the ‘who’.

Often the commercial sector is reluctant to identify what it would like to

do in places due to commercial sensitivity or intellectual property rights

and, as a result, is it difficult to obtain this information during proactive

planning processes. expressions of interest processes can be run that offer

confidentiality, while still enabling the information to be included in decisions

about managing a place. It is possible that expressions of interest could also

be used to run a design competition type approach. To demonstrate, it would

have been interesting to have run an expression of interest approach for

managing transport options to Milford.

If a proposal is successful through the expressions of interest process, those

with the idea can then be offered the opportunity through a closed tender

process or the single best idea can just be invited to make an application.

This would need to be guaranteed at the beginning of the process, as at some

stage the successful idea will need to be included in the wider planning for

the place and involve some level of public engagement.

This option is not likely to require a law change.

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Auctions

Auctions are another competitive process for awarding rights quickly. They

can be used when demand exceeds supply or when the seller wants a true

indication of what the market is willing to pay for the resource right.

The concession being auctioned must be pre-determined and well-defined.

Auctions are transparent and efficient. While bidders will have to demonstrate

that they have met pre-qualification criteria (e.g. having all the appropriate

insurances, safety plans, and the ability to undertake the activity), the auction

is more about allocating the resource correctly and obtaining the best price

for it.

This was explained to the review Working Group using an example recently

applied in Namibia. In Namibia, wildlife is plentiful and the trophy hunting

market is competitive. The relevant government department put together

nine concession packages for trophy hunting in a catalogue and contracted

a private auction company to run the event. These resource opportunities

were allocated in one morning. It raised double the expected income, even

in a recessionary economic climate.

Implementation of this option would require a legislation change. It could be

used effectively in highly competitive markets.

Ballots

Ballots rely on the luck of the draw. They are often used to allocate recreation

rights in limited situations such as some hunting blocks (New Zealand)

or rafting trips (in the uSA). A form of balloting has been used by the

West Coast Tai Poutini Conservancy to allocate a limited number of rafting

trips between concessionaires. However, because of their reliance on luck

and lack of commercial focus, ballots are not commonly used for commercial

allocations.

Banking

Not all commercial opportunities need to be utilised at any one time. There are

some international examples where the administering authority will hold or

bank an opportunity until the demand is required for its use; or the economic

climate is better placed to receive a better return on the investment.

This tool is not presently used in concessions management in New Zealand.

This option has not been considered in any detail; though it is worth

investigating further.

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4 . 7 e x I S T I N G T O O L S A N D T e C H N O L O G y

A range of tools is utilised to support the concessions process, including the

Concession Application Processing SOP, the Permissions database system,

and the Department’s website. During visits to conservancies, the review

Working Group heard a number of discussions regarding the existing tools

and the impact these tools can have on the consistency and timeliness of

processing concession applications.

Concessions SOP

The Concessions SOP sets out the mandatory steps that all concessions staff

must follow when processing a concession application. The SOP includes

standard documents and guidelines, and outlines the one-off, re-issue,

conforming, low impact and high impact processes.

Several concessions staff made reference to the fact that SOPs need to be

used in order for national consistency to be achieved across the Department.

Some considered that the SOP is too long and repetitive, and that it needs to

be more user-friendly. One conservancy noted that it felt SOPs should also

focus on guidelines for the outcome, rather than just focus on the process.

The existing Concessions SOP will be amended to reflect the new process.

This will be completed before the new system is rolled out on 1 July 2010.

Permissions database system

The Permissions system is a national database that records each step of the

concessions process. The system was designed to enable the Department

to gain a better overview of concessions in reference to the number, the

type, where they are located, their impacts, and the effectiveness of the

Department’s mitigation measures. The Concessions Audit identified that the

Permissions system is either not used to its current potential or not used at all,

which results in potentially unreliable measures being reported. It noted that

many conservancies have created their own parallel tool to help them manage

concessions (e.g. spreadsheet, register). This results in inconsistencies in

concessions processing, and means that data extracted from the database are

not representative of the Department as a whole. Failure to use Permissions

means that the Department is not collecting meaningful information. The

Audit highlighted that this national system needs to be used consistently

across the Department.

Complaints made about the Permissions database by departmental staff

focused on it being very slow and not functioning properly; it being too

detailed; terminology needing to be clearly defined; inconsistency in data

entry, making it difficult to search; it not being possible to use Permissions

to allocate tasks because people do not use it; information needing to be

sufficiently entered to enable reliable information to be obtained from the

database; the need for better training for staff in the use of Permissions; and

the need for consistent use of the database.

Some staff feel that the Permissions database may not be doing what it was

originally intended to do. They feel that the Department needs to decide

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what the database’s function is and be clear about what the role of the system

is before investing more money into it (e.g. is it an online booking system

or a digital filing system—can it do both of these roles?). They see now as

the opportunity to sort this out. Concessions staff recognise the Permissions

database could be doing more for them. For example, it could provide

integrated billing instead of 13 different ways of invoicing (there needs to

be a consistent approach among conservancies—we are one Department and

we should reflect this).

The Permissions database needs to clearly record and track timeframes; have

improved tracking of cost and time (e.g. a time recording facility for recording

time spent on concessions); have online billing and payment; and allow for

the online submission of activity return forms (these would be automatically

imported into Permissions and then linked into the financial system—they

presently have to be manually entered, which is very time consuming). The

review Working Group highlighted the need for an online application system

that connects to the Permissions database. This is starting to happen, but

needs to happen faster. It is considered that an online application system

will result in improvements to timeliness, consistency and transparency. The

existing systems also need to integrate better; the Permissions database links

to the GIS mapping system but not the financial system (SAP). The Department

could consider using Crown revenue incentive money for developing these

integrated systems.

There are a number of small issues with Permissions that appear to limit its

usability. Simple, immediate changes that can be made to the Permissions

database include:

Fix the ‘approve’ button to enable subsequent actions to be entered after •

the activity has been approved. Currently, once this button is pushed,

it cancels out any action that still needs to follow (acceptance of safety

plans, etc.).

Change calculation of person days to be for persons, not whole day •

equivalents.

Add an RMA tick-box to track those applications that also require resource •

consent.

Provide consistent location definition rules and implement them, •

e.g. regulating to the use of ‘all’; and ‘record created’.

Allow multi-selection in dropdowns and reports so you can get information •

about a group of places instead of just one place at a time.

Include the file reference on all reports. •

Add a re-issue button to an existing concession to make a complete copy •

of the record when it needs renewing (presently staff have to type it in

all over again).

Add a ‘create email’ button to create an email addressed to all people •

associated with a record, particularly multis.

Add an ‘absolute capacity’ field to the location record—will be useful for •

assessing/setting allocations in ‘hotspots’.

Remove staff no longer working for the Department.•

Present staff names in a consistent manner.•

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Show contact addresses not holder address on contact mailing list.•

Add website to contacts report (it is already in the database). •

Allow search by file number. •

Allow search of description box.•

Stop records randomly being added to ‘The TV Set Ltd’.•

Do not display inactive offices to users (e.g. east Coast/Hawke’s Bay).•

Add contact type as a new field (primary, email, advertising, internal, •

promotional, billing, etc.).

Create flags for: concessions to use historic sites; locations subject to •

treaty claim.

There are additional changes that would improve usability which should be

carried out if possible.

Not all of the changes identified above (such as some of the online

improvements) are achievable in the short term and it may be that a new

system is required to deliver all the benefits identified. In order to ensure a

new concessions process can be rolled out on 1 July 2010, the Permissions

database will need to be modified to ensure it can track the new timeframes

and key procedural elements. To ensure avoidance of the continuing problems

staff have with the database, the simple changes identified above will be

made prior to 1 July 2010.

The Department’s website

The Department’s website provides information that helps explain why

concessions are necessary and how to go about applying for one. It includes

links such as: What is a concession; Applying for a concession; Application

forms; and Concession contacts.

The concessions part of the Department’s website needs to be easier to

find and more user-friendly, and some information needs to be clarified.

The Department needs to make better use of the website to communicate

with people interested in the concessions process; for example, to publicise

notified concessions. It was also identified that better systems need to be

developed to encourage and enable better communication with applicants

(i.e. so that the Department can keep them up to date on the progress of

their application).

Improvements that need to be made to the Department’s website include:

Improve the location of the concessions page on the Department’s •

website, as it is currently difficult to navigate to. It needs to be obvious

from the first screen. Need to use terminology in the title to make it clear

what a concession is.

Provide copies of applications and concession contracts for applicants in •

order to highlight what sort of information is required of them. Focus on

guided walking, grazing and one or two other resource use applications.

Require all notified concession applications to be listed in the ‘Consulting •

On’ page.

Provide better information about how to complete an application. •

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Provide links to concessionaires’ websites. •

Contain a list of all limited opportunities. •

Complete the online application process for conforming schedules. •

Provide a map (which is linked to GIS) of all tracks and show which tracks •

are conforming, limited allocation, or other.

The Department’s website will be modified to fit with the new process. This

will require completion before the new system is rolled out.

4 . 8 T R A I N I N G

There is no formal training provided by the Department for staff working

within the concessions process. Irregular opportunities are made available

through regional and national workshops for networking and sharing ideas.

More recently, training has been provided on the use of the Permissions

database. The Concessions SOP is the main tool staff can use to obtain an

understanding of what is required to process a concession.

It is planned to provide an induction programme on the Department’s website

primarily aimed at concessionaires, though it will also offer guidance for new

staff to the Department.

There is fluid movement of staff coming into concessions positions throughout

the Department, which can create challenges for retaining knowledge and

skilled staff working in the concessions field. It is not apparent that the

Department targets people with particular skills in either effects-based

assessment or understanding of concessions management when employing

concessions staff (i.e. getting the right people to do the right job). This

makes it even more important to ensure that some focused and appropriate

training is made available to staff working in this area.

Training needs

Training in concessions management is essential if the organisation is serious

about wanting improvements to this work area. It is one of the main tools that

can be used to assist in instituting behavioural change within the Department

at all levels.

Those who should be targeted for training include:

Managers responsible for concessions management (e.g. Conservators, •

CRMs, CSMs, TSMs and Area Managers).

Concessions processing staff. •

Staff involved in the concessions advice loop. •

The training required for each group of people is different and should be

developed with this in mind. The training will be developed and provided

by the Learning and Development Team within People and Organisation

Development Group.

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A training package is required to address the following:

understanding why concessions are important to the organisation and how •

they meet the Department’s strategic goals regarding enabling business

opportunities.

How staff can understand what makes business work. •

How to maintain customer-focused relationships. •

The concessions process and the tools it uses to make it work well. •

Project management skills for managing large projects. •

Running national workshops is an effective and efficient method of

bringing people together, and it ensures that training provided to staff is

consistent across the organisation. National and regional workshops will be

encouraged.

Training priorities

New concessions process implementation

Conservancies have requested, at a minimum, that training be made available

for staff on any new concessions process prior to it being implemented.

Previous reviews and new systems for concessions have been implemented

in the past with very little provided in the way of training for staff.

It is important that training is provided on the technical changes relevant to the

implementation of the review. It is just as important for the training to also be

used as a tool for encouraging those involved in the concessions process (not

just the processing staff) to understand the value of concessions in managing

public conservation lands. As commented on earlier, one of the key reasons

why concessions are not prioritised highly is due to the organisation’s attitude

towards concessions. Key training programmes emphasising the importance

of concessions to the Department could moderate this lack of interest.

This work needs to be undertaken within the first 6 months of implementation

of the review outcome.

Project management for large projects

Large projects will always require good project management. At present,

there are around half a dozen very large concession projects being applied

for. These projects involve energy developments and tourism ventures

(with large infrastructure). These projects often involve a variety of other

approvals from the Department, as well as others which the Department

may be involved in (e.g. resource consent or designation approvals). Those

involved in these processes (both the departmental staff and applicants) have

identified some key elements that have worked well and others that have

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not. As a result of these discussions, four key elements essential for project

managing large concession applications are identified:

Being aware of and coordinating all aspects of the Department’s •

involvement in these projects—not just the concession.

Having the capacity/capability to undertake the work of project •

managing—if this is not available, it is useful to contract it out. There are

good examples of where this has worked successfully (and some which

have not). It is still important to have a departmental staff member as the

key coordinator.

ensuring lines of communication are clear and using the project manager •

as the key contact for liaison with the applicant.

Giving the project manager authority to ensure commitments for internal •

involvement are met.

A good example of how this approach can work is to compare it with the

case manager in RMA appeals. Commonly, the Department uses a case

manager who is not involved as a witness to manage most of the logistics

around the appeal. This could easily be applied to the management of large

concession projects.

There has been much discussion in the Department about where large projects

should be managed from—nationally, regionally or locally. The review

Working Group noted good and bad examples around conservancies on how

large projects are managed. essentially, it does not come down to where the

project is managed, but how it is managed. Once a conservancy is aware that

a large project is approaching, they need to determine whether they have the

capability and capacity to project manage a large project well.

Given there are not many large projects occurring at any one time, it is

probably not realistic to expect each conservancy to retain these skills in their

concessions team. Sharing of resources or having one or two people available

nationally who ‘float’ to assist with such projects could be desirable. The

Commercial Business unit will also be able to assist with this, particularly

where it is responsible for key client management. The Department’s Priority

for the Future—Shared Services project is also considering these matters.

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4 . 9 C O N C e S S I O N A B L e A C T I V I T I e S

There are several activities that have always created debate over whether

a concession is required or not, in particular educational activities and

sporting events. Section 17O defines when a concession is not required.

This includes mining authorised under the Crown Minerals Act; any activity

otherwise authorised under the Conservation Act and Schedule 1; search and

rescue activities and similar based activities; and land managers’ activities

and recreational activities undertaken, not for gain or reward, by individuals

or organised groups.

The 2005 Concessions Review recommended amending the law to clarify

when sporting activities would not require a concession. The review

considered whether this recommendation is still relevant or whether other

options may address the problems.

Educational activities

The Conservation Act does not exempt educational activities from the

requirement for a concession. Concern has been raised in the past by a

previous Minister on the appropriateness for educational providers, especially

schools, having to pay for educating people about conservation while on

public conservation land. The current approach is that organised educational

activities whose participants are over the age of 18 require a concession.

Some conservancies are not applying this test and are choosing to base the

requirement for the concession on other criteria, such as the value of the

educational activity to conservation. Hence, an inconsistency is occurring.

Given the variety of educational providers offering conservation-related

courses, it is difficult to apply a standard test unless the existing age criteria are

reinforced. This would remove many providers who are arguably providing a

good conservation service. There are probably some who may take advantage

of a more liberal interpretation to offer conservation- or education-related

courses that could be of poor quality and really add no value to promoting

New Zealand conservation. An option could be to apply an exemption for a

concession to core New Zealand educational providers.

The Ministry of education and the Tertiary education Commission define

core education activities as those which are publicly funded and endorsed

through NZqA.

Section 17O(3) could be amended to include pre-schools, primary schools,

secondary schools and core New Zealand Government approved and funded

education courses. Policy direction could limit this to those who have

NZqA approval. This does not relate to any activities requiring buildings or

structures or exclusive use of land.

If no law change occurs, a consistent policy should be enforced (i.e. the age-

based policy should be enforced to avoid inconsistent application around

the country).

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Sporting events

There is considerable ambiguity over when a sporting event requires a

concession. Section 17O(4) specifically provides that any individual or

organised group undertaking a recreational activity, whether for the benefit of

the individual or members, does not require a concession if this is undertaken

without any specific gain or reward for that activity, pecuniary or otherwise.

Applying the test of gain or reward is difficult. This is represented by the

inconsistent approach applied throughout the country. The preferred

approach has suggested that unless the Department can demonstrate gain or

reward is being obtained, then no concession is required. If the organisers

of the event are simply recovering costs, then this is not a specific gain,

so no concession is required. If the intention is to raise funds for future

events, then this is considered specific gain and a concession is required.

Where the organiser of the event is being paid, it is considered specific

gain and a concession is required. The Department has guidelines to assist

conservancies in interpreting s17O(4). These will be reviewed to ensure they

are consistent with this advice. This is a more appropriate approach than

amending the law. It is also important that a consistent approach to using

the guidelines is required. If this cannot be achieved, better definition in the

law will be considered.

It would be useful to add further guidance about organisations that are

commonly defined as undertaking an activity for gain or reward. The status

of the legal entity running the event may provide assistance in determining

whether it is recreational activity, a trade, business or occupation. It may

be considered that if the event is organised by a sole trader, partnership

or company, then it is possible that specific gain or reward is likely to be

involved. This would need to be considered in the context of the interpretation

outlined above.

It would also be useful to include guidance on what is ‘reasonable’ cost

recovery for those events that are not seeking gain or reward. It has been

suggested that most club activities cost recover below $50 per participant

per day. Most commercial events aim for more than this.

Sporting events undertaken without gain or reward do not require

concessions regardless of the scale of the events and the effects on

conservation values. There is no ability to require a concession for a

not-for-profit sporting event.

Sporting events have significantly changed over time. Some club activities

are now quite large and, depending on the nature of the event, could have

significant impacts on conservation and recreational values. It would be best

to define a threshold for when a concession would be required, based on the

degree of effect or the scale of the activity. The review has not determined

what would be an appropriate threshold, though it has been suggested that

a party size of 50 participants or more may be workable.

This may also be useful for determining when an activity is for gain or reward.

It has been suggested that most club activities are unlikely to exceed this

level of participation. Further work is required to determine an appropriate

threshold. Threshold criteria could be added as policy guidance to the

Sporting events Guidelines to define when an activity is likely to be occurring

for gain or reward.

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4 . 1 0 T e R M I N O L O G y

The Department has its own jargon that it applies to the processing of

concessions. Some of this causes confusion or implies the wrong message

about the intention behind the action. Changes are required in four areas,

one of which requires a law change.

High impact vs. low impact

The Concessions SOP divides the categorisation of concessions into a series

of classes. Two of these are the high impact and low impact concessions.

essentially, high impact concessions are those which are notified and low

impact concessions are those which are not. These titles are misleading, as

they imply that all applications which are notified will have a significant

level of impact. This is not the case. The law requires all leases and licences

to be notified, not necessarily because of the level of impact, but to some

extent because of the level of exclusivity associated with the application.

The reverse can be said of low impact activities that are predominantly

permits. Some applications processed as permits do have impacts that require

reasonable management to ensure the activity is acceptable.

The titles give a perception that affects how some applicants see their activity

and this can correspond to the expectations they may have for approval. It

would be useful to change these titles to reflect the action involved:

High impact = notified •

Low impact = non-notified •

First Determination Report

The earlier discussion on notification options indicated some concern about

the perception that the content of the First Determination Report (FDR) will

not change as a result of submissions received. Some of this relates to the

use of the word ‘determination’. It implies that a decision has been reached

(which to some extent it has).

In discussing this with conservancies, there is general support for using more

neutral language to explain what the report actually is—an officer report.

The FDR is not a term used in the law, so is easily changed.

It should be referred to as an ‘officer report’. This removes any indication of

determination.

One-off permits

When you hear the term ‘one-off’ it implies once only. The Concessions

SOP defines one-off permits as having a duration of no more than 3 months

and as an activity that does not take place more than twice in any given

6-month period. It does not imply it can only occur once.

As the SOP does not indicate that it is a once only activity, there is variable

interpretation around conservancies on how one-off permits are used. One-

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off permits are significantly cheaper than most other classes of concession.

The charges are as follows:

$20 + GST (non-commercial aircraft landing) •

$95 + GST (commercial aircraft landing or guiding) •

$150 + GST (filming or sporting events) •

Many conservancies are enabling long-standing concessionaires to apply for

one-off permits for activities from year to year. It is cheaper to do this than

apply for a 5-year permit and enable a more robust assessment of effects to

occur. The problem with this is that some areas within conservancies, and

between conservancies, are not applying the same rules. For concessionaires

(such as aircraft operators and guided walking companies which often

traverse conservancies), this appears unprofessional and to some extent

creates the impression that one departmental office is not being as

user-friendly as another.

There are two possible solutions:

Rename the one-off permits to short-term permits, keep the same criteria 1.

that are outlined in the SOP at present, and consider raising the charges

to remove the incentive to keep applying for a short-term permit when a

5-year permit or a licence is more appropriate; or

Amend the SOP to ensure one-off permits are a once only situation. 2.

you can only apply for the activity once in every 3 years. It cannot be a

regular activity.

The Department will ensure that one-off permits are managed as such, with

option 2 being applied strictly.

Definition of permits and licences

questions were asked about why the law includes a breakdown between

permits, licences, leases and easements. The definitions of licence and permit

in particular do not seem to be mutually exclusive, so activities are granted

as ‘licences’ simply in order to be able to have a term over 5 years, and

equally activities are granted as ‘permits’ simply to avoid public notice.

At present:

The definition of lease in s2 of the Conservation Act accords with the 1.

common law approach. No changes are required.

The definition of licence does not accord with the common law approach. 2.

It could retain the reference to profit a prendre but delete any reference

to non-exclusive interests in land.

The definition of permit could be repealed, as it presently adds little in 3.

terms of differentiating between permit and licence.

This change is not seen as a priority, but should legislative amendment

progress, it could be included in the package.

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4 . 1 1 D e L e G A T I O N S

Decision making on concessions is delegated to various managerial levels

within the Department. The lowest level of delegation is to the CRM, CSM or

Area Manager level.

Concessions Supervisors/Programme Managers

Suggestions have been made about delegating decision making on some

concessions down to the Concessions Supervisor/Programme Manager

Community Relations level. This has merit. essentially, the level one manager

is already seeing the reports and agreeing to the report moving up the line to

the next manager. Removal of one level in the delegation tree is very likely

to quicken the approval process.

Conservancies were asked whether they support this idea and questioned

what type of concessions would be appropriate for delegated authority

to this level. There was general support for the idea, though with some

caveats around this. It is important that the level two manager retain decision

making over complex projects (i.e. those which are notified and applications

with significant relationship issues). The CSM/CRMs who commented felt

they would also need to ensure that they retained an overview of what was

happening, and suggested this could be achieved through MORs.

Concessions that could comfortably sit with level one managers include

one-off permits, re-issues, conforming concessions and probably many of

the low impact (non-notified) permits. Level one managers could also hold

responsibility for approving further information requests and possibly time

extensions. As with any delegation, the conservancy would hold discretion

over what is delegated to this level. Level one managers will need to have

good coordination and communication so they can see how their decision

fits in with wider management decisions.

Big projects

The review Working Group spent considerable time discussing large projects

and how these should be managed. One of the key issues commonly raised by

staff and stakeholders was how close the delegated decision-maker should be

to the Minister on nationally important projects. Some considered the closer

the delegated decision-maker was, the better informed a decision could be

on those matters.

The review process was not able to ascertain whether this is a correct

assumption or not. The decisions are made in accordance with the legislation

and it is difficult to determine whether the decision should be different if it

is made by the GM or by a level two manager from a conservancy. The main

concern raised here is more about ‘who is prepared to take responsibility for

the decision made?’. If the application is a matter of national interest, it would

seem reasonable to consider the implications of the decision nationally, as it

may have wider reaching effects than an area or conservancy boundary. It is

appropriate that projects considered to be of national interest should have

the delegation for approval moved to the GM level.

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The GM would still be supported by the conservancies in making this decision.

It should not require any further resources to support this work.

The challenge is then to determine what a project of national interest is. This

requires further policy analysis.

4 . 1 2 S T R u C T u R e

Options for changing the Department’s organisational structure to enhance

concessions processing, including the recommendations of the Commercial

Framework Project, have been considered. Processing a concession

application requires coordination and integration of advice and information

from multiple sources, within and outside the Department, and this is a

critical consideration for any structural proposal.

It is difficult to conclude that the existing structure can not bear some

responsibility for the problems existing in concessions processing at

present. The decentralised nature of the Department has resulted in SOPs

and guidelines not being used in a consistent manner. The review Working

Group concluded that if the Department is prepared to invest in making

the existing decentralised structure work with improved systems and by

enforcing national consistency, it is not necessary to undertake significant

structural change. The review Working Group also concluded that if the

existing organisational system posed too many impediments to enable

more efficient and effective processing of concessions, then new models

should be considered. The review Working Group highlighted key factors

to be taken into consideration for those considering this analysis. These are

discussed below.

Since the concessions processing review was instigated by the Department,

its Prioritising for the Future Project has identified a workstream focusing on

shared services. This project will consider the matters raised above.

There are, however, some improvements that can be made outside the

Prioritising for the Future Project, and these are outlined below.

Organisational principles

The Department’s organisational principles include the distinction between

support, service and line (or delivery) roles. A support role delivers specialist

advice to a manager; a service role delivers products or services to several

parts of the Department; and a line/delivery role delivers outputs to the

Minister, taxpayers and the public. Line roles are located close to the majority

of customers to whom they deliver outputs; service roles are centralised

where it makes sense to do so; and support roles are located close to their

manager (their customer).

The purpose of a Community Relations Officer—Concessions role, according

to the current role description, is to provide advice on issues and best

practice in concessions management to conservancy managers, and to

provide a professional service for concessionaires and concession applicants.

The role, therefore, combines elements of support and delivery. There are

88

also specific roles in area offices with responsibilities for processing and

managing concessions.

It follows that concessions processing roles should be located—as they are

now—in conservancies, close to the managers they support (the decision-

makers on concessions) and the majority of external customers they service

(concessionaires). The principal alternative structural arrangement—regional

or national centralisation of concessions processing—would be an exception

to current organisational principles.

The review Working Group looked at the various models conservancies use

for processing concessions. each conservancy has a different model, varying

from those who do all the work in conservancies and seek advice from their

area offices, to the east Coast Bay of Plenty Conservancy where the majority

of concessions work is undertaken by the area office staff. Most conservancies

enable simple concessions processes to be handled at an area level, and the

more complex, notified and multi conservancy concessions to be processed

in conservancy offices.

The Department presently organises its structure using a decentralised model.

Decision making is often devolved to the lowest level relevant. This often

means that decisions on concession applications are made by Area Managers

or CRM/CSM positions. For decentralised structures to work, systems

need to be put in place to ensure that consistent approaches to activities

occur nationally. For concessions, this includes SOPs, guidelines and the

Permissions database. This review has clearly indicated that the systems put

in place to assist with making this decentralised structure work are not being

used consistently. It may, therefore, appear that the decentralised structure

is a key reason for the many problems evident in concessions processing. It

could be argued that the problem does not lie with the structure, but more

with the unwillingness to enforce the systems that have been developed

to support this structure. Clear messages will be provided about using the

systems and tools available for processing concessions.

The Prioritising for the Future Project is considering matters raised in this

section.

The review Working Group identified the following pros and cons with the

existing system and a more centralised approach to processing concessions.

Conservancy-based processing

Advantages

Concessions staff are close to:

The concession decision-makers they support (and this will be reinforced •

by the delegation levels for some concession decisions being lowered).

The majority of applicants, including many small and medium-sized •

enterprises that value local access and relationships.

The places for which concessions are sought, enabling familiarity with •

site values and issues, and facilitating site visits as part of application

processing.

89

Other conservancy and area staff whose advice is often necessary on •

concession applications (e.g. Area Managers, TSOs, Programme Managers,

specialist rangers).

Iwi and hapü, enabling relationships and familiarity with tangata whenua •

interests and concerns to be developed.

Disadvantages

Consistency in process and decision making is difficult to achieve.•

‘Critical mass’ is a problem for conservancies with low levels of concession •

activity and consequently few concessions staff, making staff absences,

turnover or spikes in workload difficult to manage. This is particularly

relevant for some area staff who may have less than 50% of their time

allocated to concessions work.

Highly experienced and capable concessions staff are geographically •

dispersed and not necessarily found where they are needed for dealing

with challenging applications.

Geographical dispersal of staff makes sharing of expertise and best practice •

more difficult.

Where work is predominantly undertaken in area offices, it may not enable •

bigger picture matters to be considered, and consistency in process and

decision making is difficult to achieve.

Centralised processing

Advantages

Consistency in process and decision making is easier to achieve.•

No problems with ‘critical mass’—staff absences, turnover and spikes in •

workload are easier to manage.

Highly experienced and capable concessions staff can be brought together, •

with increased opportunities for sharing of expertise and best practice.

Challenging applications can be assigned to a co-located high-capability •

team.

Disadvantages

Concessions staff are further away from:

The concession decision-makers they support (and this will be exacerbated •

if delegation levels for some decisions are lowered).

The majority of applicants, including many small and medium-sized •

enterprises that value local access and relationships.

The places for which concessions are sought, so that familiarity with site •

values and issues is less likely, and site visits are more time consuming and

expensive, and probably less frequently undertaken.

Conservancy and area staff whose advice will still often be necessary on •

concession applications (e.g. Area Managers, TSOs, Programme Managers,

specialist rangers).

90

Iwi and hapü, so that concessions staff are distanced from local •

relationships (maintained by conservancies and areas) and are less familiar

with local tangata whenua interests and concerns.

The review Working Group consider that increasing the distance between

concessions staff and decision-makers, applicants, places, conservancy and

area staff, and iwi and hapü could constrain the scope for the faster and more

effective processing that would be a primary objective of centralisation.

Keeping in mind the matters raised above, if the Department considered

changing the structure to regionalise or centralise concessions processing

(essentially creating ‘centres of excellence’), just implementing a structural

change would not result in improvements on its own. In fact, it could

exacerbate problems. Centralising processing could result in expediency of

processing if the processing was done with little input from conservancies

or area offices. Managing concessions without technical input is not likely

to deliver good conservation outcomes. For this reason, if structural change

does occur and departmental managers wish to make decisions achieving a

good conservation outcome, it is essential that this occurs in conjunction

with good systems being in place.

The change regarding the use of tools that simplify processing and make

decision making quicker (e.g. better planning and use of conforming

schedules) become more important if processing is regionalised or centralised,

particularly since those undertaking the processing are not likely to be as

informed of local situations as the present processing system enables. If

conservancy and area technical staff are still to be involved in concessions

processing using a ‘centres of excellence’ model, a strong culture change

will still be required to ensure all relevant people in the Department are

aware that inputting into concessions processes is key to achieving the

Department’s vision.

If departmental managers are not prepared to invest in making the

decentralised structure work by improving systems and attitudes, then it may

be necessary to consider structural change to at least obtain some efficiencies

in expediency by utilising bigger, more focused, centralised teams. Such

an approach would make it easier to achieve implementation of national

systems.

Big project concessions

One centralisation option would be the creation of nationally or regionally

based units dealing only with challenging applications (e.g. for major

development projects). Current practice is to create ad hoc teams as

needed for such projects. The alternative to centralisation would be to

continue with this model, but improve practice, as discussed in section 4.8

Project management for large projects.

The review Working Group received a strong message from concessions staff

that a centralised ‘A team’ or teams, while creating a possible new avenue

of career progression (probably at the expense of relocation), would detract

significantly from the interest and appeal of the remaining conservancy-based

concessions work. This is a very important consideration, as the performance

of conservancy-based work would continue to have a critical influence on

91

external perceptions. It would be more difficult to increase the value attached

to this work, and attract people with the necessary skills to perform it well.

Similar comments were also made about contracting out project management

on big projects.

Conforming schedule concessions processing

With conforming schedules, individual conservancies have effectively

approved the concessionable activities concerned by including them on

the schedule. There is no need for local processing or approval. Processing

involves getting contracts signed, entering data on the Permissions database

and checking the requirements identified for a conforming schedule

concession have been met. Processing these concessions is a service role,

delivering across the Department, which can be centralised for efficiency.

Allocating the task of processing applications for conforming concessions

to one or two conservancies is beneficial. This will rationalise effort,

enable consistency of approach and ensure applicants have a known point

of contact.

National Office concessions support role

A strong message was received from concessions staff that the loss of a

National Office support role for concessions has left a significant gap; making

access to advice on good practice and challenging concession issues more

difficult to find, and eliminating a key resource for promoting consistency and

strategic oversight of concession management. As a result of this concern,

a National Office support role will be established. This role should focus

on both resource use and visitor-related concessions. A business case will

be prepared defining exactly what this role will perform, where it will be

located and how it will be created.

The role of Manager, Concessions and Tourism, which included support

and strategic development functions for concessions, was dis-established in

an earlier organisational review. The current Manager, Visitor Services role

has six direct reports and a wider brief, and does not enable provision of

support. The National Office Senior Technical Support Officer—Concessions

role is focused on systems improvement, with limited capacity to provide

operational advice to conservancy-based concessions staff.

Re-establishing a National Office support role will:

Promote consistency and good practice in dealing with challenging •

concession issues.

Provide a national overview of management and performance issues with •

concessions and help prioritise solutions.

Promote the identification of strategic issues as they emerge, helping to •

avoid crisis management.

A support role could and should be combined with a role in leading the

development of training programmes for concessions. Otherwise there is no

national resource for this.

92

4 . 1 3 M A N A G e M e N T O F C O N C e S S I O N S

While this review is about the processing of concessions, it heard a lot about

the management of concessions once they are approved. Both concessionaires

and staff have emphasised that this is just as important as the process of

obtaining a concession—possibly more important.

Key areas that require improvement include:

Relationship management.•

On the ground monitoring of compliance.•

ensuring contractual obligations are fulfilled, such as the provision of •

activity return forms.

Key client managers

Stakeholders and some staff have requested key client relationship

managers for major concessionaires. Five percent of concessionaires are

responsible for nearly 80% of the revenue earned from concessions. The

top 20 revenue-generating concessionaires provide 50% of the revenue

provided by concessionaires (they comprise less than 1% of all

concessionaires). A number of these concessionaires are involved with

more than one conservancy. Coordinating these relationships will offer

efficiencies in terms of improvements in managing the timing of application

processing; it will offer a key contact who knows what is happening with

the client’s concessions; and, most importantly, a key contact point for the

concessionaire.

There is merit in this approach. There are examples of how this works

well in some conservancies. For example, Real Journeys have a number of

concessions in Southland and other conservancies. Southland Conservancy

has appointed a key client manager for Real Journeys. They meet on a

6-monthly basis and discuss new concession opportunities and management

of existing concessions. Both parties are aware of upcoming workloads

and opportunities. There would be no reason why this could not traverse

conservancy boundaries.

Since this review was undertaken, the Department has created a Commercial

Business unit. Part of the unit’s role will be establishing key client managers

for the Department’s main revenue-generating concessions (and for other key

commercial relationships). These key client managers will be responsible for

coordinating all departmental interactions with these clients, including the

processing of concessions. The client manager will not be responsible for the

processing; this will still be the responsibility of the relevant conservancy.

The Commercial Business unit will be responsible for the commercial

negotiations associated with these concessions, though the land manager

decisions on effects and other legal tests will still be the responsibility of the

conservancy-delegated decision-maker. Further work is required to identify

how the relationship of the key client manager will work with the regional,

conservancy and area staff involved in the concessions processing and

management. The review Working Group heard from some conservancies

(where key client relationships are managed outside of the conservancy) that

this has created problems (i.e. the right hand not knowing what the left hand

is doing or saying).

93

Key client managers should also be considered for those concessions that are

not being offered this service by the Commercial Business unit. These would

be conservancy-based tasks.

Compliance, monitoring and auditing

Currently, little effort is placed on ensuring concession conditions are being

complied with. Conservancies have indicated that they have insufficient

capacity to undertake focused monitoring of concessionaires. At present,

the main informants of non-compliance are other concessionaires; or via

complaints from the community. There is benefit in measuring external

stakeholders’ satisfaction with the process; this can be achieved by using

concessionaire surveys. This may provide guidance on what is happening

with compliance and possibly encourage it.

Auditing and monitoring of conditions is important and needs to be undertaken

regularly. This would need to be targeted. It would not be practicable or

sensible to monitor all concessions. Results should be made public, as this

offers transparency and honesty.

Some of the longer term time gains being made from an improved concessions

process could be placed in compliance monitoring

4 . 1 4 O T H e R I S S u e S

The review identified a number of issues that were not within the scope of

the concessions processing review, or that should be analysed further.

These include:

Assessing the suitability of the concessions process with regard to •

activities that are incompatible with the purpose for which the land is

held/managed.

Changing the decision-making criteria for which concessions are •

considered. In particular, external stakeholders and some departmental

staff have raised issues around the inclusion of ‘net conservation gain’ in

the law and widening the scope of effects to enable offsets beyond the

site of the application to be considered.

Widening or changing the scope of when land transfers can apply, so •

these can occur more easily.

Addressing the relationship between concessions and other permits •

required under conservation legislation.

Addressing the long process involved in preparing, amending and reviewing •

planning documents.

Addressing issues regarding tracking and recording of time spent processing •

concessions vs. cost recovery. The review Working Group attempted to do

this as part of the review; however, inadequate information was available

to provide a reliable assessment.

These will be assessed to determine whether further work is required to

address the matters raised.

94

Part 5 Implementation

The Department has identified a series of tasks required to effectively

implement the findings of the review. The priorities for action are identified

in the diagram below.

An Implementation Plan coordinating the undertaking of the various actions

is required.

ACTION LeAD GM COMMeNT

1 enforce use of specified

tasks in Permissions

and maintenance of the

system

GM R&D—

maintenance

of systems

GM Ops—

enforcing use

This requires the identification of the key tasks requiring use. As a minimum, this

should involve any task that tracks time, process and cost; continued training of staff

in the use of the Permissions database; and fixing the small issues with Permissions

that appear to limit its usability. It is important to note that any major changes to

Permissions should not occur until a new process is adopted.

2 Make improvements to

the Department’s

website

GM R&D

GM CeG

Priority actions include:

a) Improving the location of concessions page on the Department’s website. It needs

to be obvious from the first screen. use terminology in title to make it clear what a

concession is.

b) Providing mock applications and draft conditions for applicants—focus on guided

walking, grazing and one or two other resource use applications.

c) Requiring all notified applications to be listed in the ‘Consulting On’ page.

d) Advertising the introduction of the penalty tool, which allows the return of a

percentage of the application fee to the applicant if the Department does not meet

its timeframes.

3 Complete conforming

schedules for guided

walking

GM Ops Complete the conforming schedules work for guided walking, including the

implementation of the online application process. The Department considers this one

of the most significant improvements that can be made immediately that will result

in improvements to timeliness, consistency and transparency. ensuring the online

application process is workable as soon as possible will add to the value of this tool.

4 Implement the outcomes

of the Regulatory

Improvement Bill

GM R&D Should this Bill become an Act, the following is required:

a) update the website re. changes to permits and licence terms and notification.

b) Prepare guidelines on when discretion should be used to notify licences.

5 Simplify reports and

forms

GM R&D Amend the low impact report to remove unnecessary information requirements and

amend application forms to ensure they are more user friendly.

6 Manage multi

conservancy concessions

decision making

GM Ops

GM R&D for

guidance and

verification

Implementing a lead Conservator for the management of each multi conservancy

concession does not need to await the outcome of the review. The lead Conservator

will make decisions to move the concession through the process quickly without

agreement from other Conservators covered by the multi. The lead conservancy will

bear responsibility for the discounted fees if timeframes are not met.

Include lists of unsuitable activities or places to be considered as a multi. Guidance

will be provided on what is appropriate for this list and content will be verified by

National Office.

7 Define concessionable

activities—

sporting events

GM Policy Modify policy guidance on what sporting events should not require concessions.

8 Nominate an

Implementation

Champion and

Implementation

Coordinator

GM R&D It is essential that a GM has responsibility for the implementation of the review

outcomes. It is also essential that a position has responsibility for ensuring

coordination of the implementation of the review. This would also include the

development of an Implementation Plan.

Continued on next page

95

ACTION LeAD GM COMMeNT

9 Change leadership style eLT A new system will only work if there is acceptance in the organisation of the

importance of concessions to achieving conservation outcomes and the willingness

to enforce the use of nationally consistent processes and tools. The Department will

reinforce the following key behaviours:

a) Reinforcing messages about the value of concessions to the Department and others’

business.

b) Acting in a timely and professional manner. Responding to concession requests

should be given more priority in day-to-day work of all staff required to input into

these processes.

c) using existing guidelines and appropriate components of the Concessions SOP and

utilising the Permissions database as a work tracking and reporting system.

d) Adequately resourcing concessions management.

10 Action decisions

to implement new

timeframes and

processes

eLT Conservancies will be instructed to administer new timeframes and process. This

will be implemented by 1 July 2010. This will result in a number of the tasks

identified requiring implementation before this date (including the development and

implementation of training, changes to permissions, the website, SOPs, and so on).

11 Create a concessions

support role

GM R&D Regardless of the outcomes of the review, there is a need for a national concessions

support role. This does not exist at present and is arguably a key reason why the

organisation has such variability in its approach to concessions management. It is

important that its focus is not only on recreation/tourism concessions management.

A Business Case will be developed identifying the role of the new position, where it

should be placed and how it is to be created.

12 Amend existing SOPs

and guidelines to

address new process

and/or develop new

supporting tools

GM R&D This requires completion before the new system is rolled out, preferably within the

first 3 months. This includes, in priority order:

•AmendSOPandassociatedguidelines,templates,forms,changingterminology.

•Revisehearingguidelines.

•Developguidancenotesonexercisingdiscretionforpubliclynotifyingconcessions.

•Developguidelinesforreconsiderations.

13 Amend the Permissions

database to fit with new

process

GM R&D This requires completion before the new system is rolled out, preferable within the

first 3 months. The focus of this work is on ensuring the database will reflect the new

process. It is not intended to include work on improving the database’s functionality

or ascertaining its usefulness for upgrading for online application.

This work is key to enabling a tool for providing quantitative information on

performance and improvement in timeliness.

14 Modify the

Department’s website

to fit with new process

GM CeG This requires completion before the new system is rolled out, preferably within the

first 3 months.

15 Develop incentives

for motivating the

Department to implement

new process and system

GM R&D Initial focus on developing a policy on discounting fees to the applicant if the

Department does not meet its self-imposed timeframes. This needs to be ready

to implement by 1 July 2010. Refer to recent RMA Discount Regulations

being developed.

16 Provide training for staff GM POD Initial training will be required for key staff in the implementation of the new system.

This will be required prior to 1 July 2010.

The development of a concessions training package within the Learning and

Development unit of POD is considered a priority and should be used as a key

resource for implementing behaviour change.

17 Structural change (if any) eLT Note the development of key client managers as a role of the Commercial Business

unit. GM Ops and the Commercial Business unit are to develop a policy on how key

client managers will work in a practical sense.

It is noted that other matters relating to structural implementation are best placed

within the Prioritising for the Future Project being undertaken by the Department

at present.

Implementation table—continued

Continued on next page

96

ACTION LeAD GM COMMeNT

18 Recruitment GM POD Investigate whether the existing recruitment strategies around employing people

working in concessions is resulting in the right set of skills. Reconsider whether the

role description can better reflect the job requirements, particularly those elements

relating to relationships skills, business understanding and good processing skills.

19 Develop performance

measures

GM CSG Develop appropriate performance measures to reflect new process to ensure that

what is being recorded is appropriate to measure performance. This should be

completed so it can form part of the 2011/2012 business planning year. Trialling

it throughout 2010 would be useful for providing information on progress of

implementing new timeframes.

20 Begin monitoring

and evaluation on

implementation

GM R&D

GM Ops

for MOR

and BMOR

requirements

Develop tools for monitoring and feedback of, at least, the initial year of new process

and systems. This will be essential to demonstrate to the Minister and other key

stakeholders that improvements are being made.

Regular feedback will be required as part of MORs and BMORs, performance reporting

and other existing tools available.

The Implementation Plan will contain clear direction on how change is to be

demonstrated.

21 Bring about statutory

change

GM Policy When opportunities arise, the following statutory changes should occur (in order of

importance):

•Changethesubmissionperiodfrom40workingdaysto20workingdays.

•Amends17ZGtoenableforthetenderingoftheopportunity,ratherthantheright

to apply.

•Amendthelawtoenablenotificationofaconcessionapplicationwithanofficer

report on the application, rather than an ‘intention to grant’.

•Createanempoweringregulationmakingpowerfortimeframes.

•EnablesimilarprovisionsintheConservationActtos124RMAtoprovidefor

concessionaires to continue operating if an application is lodged 6 months prior to

expiry.

•AmendthelawtoenabletheMinistertodeclineanapplicationwhereitwouldbe

more appropriate to run an expressions of interest process or offer an opportunity

through tender.

•Amendthelawsothat‘coreeducational’activitiesdonotrequireaconcession,and

define what these are.

•Addressgeneralprocessmattersregarding:

◦ Rejecting applications.

◦ Changing the presumption for when the application is considered complete.

◦ Requiring an application for reconsideration to be made within 20 working days

of final decision.

•Amendthelawtoenablepermittedactivityschedules.

•Amendthedefinitionoflicencetoremovethereferencetonon-exclusiveinterests

in land; and repeal the requirement for a permit.

22 Develop consultation

triggers with iwi

GM Ops Develop triggers with iwi for when consultation will occur as early as possible to

ensure new timeframes can be met.

23 Contemporary

allocation mechanisms

GM R&D Investigate and trial the use of various allocation tools. Further work on guidance

material is required.

24 Outcome-based

planning

GM Policy Develop skills and understanding of outcome-based planning.

Amend the delegations to ensure GM sign-off on application of s17W(3)—declining a

concession on the basis that it is more appropriate to review a planning document.

25 National Based Planning GM Policy Develop more direction and policy on nationally relevant matters affecting

concessions. The Destination Management Framework is a good example of this.

Implementation table—continued

Continued on next page

97

ACTION LeAD GM COMMeNT

26 Develop conforming

schedules beyond

conforming tracks

GM R&D for

criteria

GM Ops for

developing

schedules

Develop conforming schedules for the following activities (this will require

prioritising—possibly 1 or 2 in the first year):

•Mountainbiking

•4-wheeldriving

•Photography

•Guidedhuntingandfishing

•Bee-keeping

27 Develop standardised

special conditions

GM R&D Increase the use of standard special conditions for various activities.

28 Provide online capability

for all applications

GM CeG This will significantly reduce effort in processing applications. Having the ability to

link this with Permissions is desirable. Developing a system that also enables online

financial payments, activity return forms and other relevant activities is also preferred,

though it is acknowledged that this will not be achievable in the first year and should

be assessed in accordance with wider departmental needs.

29 Change decision making

to level one managers

GM Ops Some decision making for concessions (e.g. one-offs, re-issue, conforming, further

information requests and similar activities) could be delegated to level one managers.

This is expected to achieve time efficiencies.

The diagram below demonstrates the priorities for completing separate

pieces of work and how they inter-relate with one another. The numbers in

the diagram link back to the tasks identified above.

The core actions that need to occur are outlined at the top of the diagram.

These overarching pieces of work will influence the outcome/success of the

other projects.

The projects are grouped by subject (e.g. Process, Planning, Communication,

Other), and have been categorised by priority—with Priority 1 being the

projects identified as the most important, Priority 2 being those that should

only occur once Priority 1 projects have been completed, and so on.

The most immediate gains for improvement are identified in the shaded box.

These actions will be actioned as soon as practicable.

Implementation table—continued

98

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anag

emen

t Fra

mew

ork

Impr

oved

Out

com

e B

ased

Pla

nnin

g (2

4)

(sta

tuto

ry &

non

-sta

tuto

ry)

Ext

end

Con

form

ing

Act

ivity

Typ

es (2

6)

99

Part 6 Glossary

CMP—Conservation Management Plan

CMS—Conservation Management Strategy

CR—Community Relations

CRM—Community Relations Manager

CRO—Community Relations Officer

CSM—Conservation Support Manager

ELT—executive Leadership Team

FRD—First Determination Report

GIS—Geographic Information System

GM—General Manager

GM CEG—General Manager Conservation engagement Group

GM CSG—General Manager Corporate Services Group

GM Ops—General Manager Operations

GM R&D—General Manager Research and Development Group

LSA—Limited Supply Agreement

LTCCP—Long Term Council Community Plan

MOR—Monthly Operating Review

NZQA—New Zealand qualifications Authority

POD—People and Organisation Development Group

PRA—Preferential Right to Apply

RCA—Restricted Coastal Activity

RMA—Resource Management Act

SAP—Department’s financial system

SOP—Standard Operating Procedure

TIANZ—Tourism Industry Association New Zealand

TSM—Technical Support Manager

TSO—Technical Support Officer

WARO—Wild Animal Recovery Operations

100

Appendix 1

P R O P O S e D I M P R O V e M e N T S — S T A T u T O R y O R N O N - S T A T u T O R y C H A N G e

Note improvements can be achieved using more than one option. Where an

option includes a non-statutory change, this is the preferred option.

CHANGe PROPOSeD NON-STATuTORyReGuLATION/

ByLAWSTATuTORy

Timeframes

More specificity/certainty at each stage of the process √ √ √

Mandatory requirement to meet timeframes √ √ √

Specified criteria for when extensions of time can occur √ √ √

Provide incentives for meeting timeframes √ √ √

Amend submission notification time period from 40 to 20 working days √

Reconsideration—time for when an applicant can seek a reconsideration √

General process improvements

Increased focus on s17S(1) and (2)—when an application is considered

accepted and processing timeframes start

May have an implication for s17T—when an application is considered

complete

√ √ √

Provide an option to reject applications that have lapsed after 6 months

of inaction

√ √

use Permissions as a tracking/monitoring system for timeframes and process √

Amend the law or alter practice to reject applications that have lapsed ? √

ensure the lead conservancy for multis has authority to move concession

through process regardless of whether other conservancies have responded

√

List places/activities for each conservancy where multis are not appropriate

and include on Department’s website

√

Pre-application consultation

Focus on pre-application discussions to ensure better quality applications √

Include applications and contracts of commonly sought activities on

Department’s website

√

use well-trained consultations to prepare applications √

Iwi and board consultation

Conservation board concession sub-committees √

Develop triggers for when conservation boards and iwi comment on

concessions

√

extension of time—iwi consultation √ √

Further information requests

Impose responsibilities on both the Department and the applicant √ √ √

Two information requests that stop the clock √ √ √

Ability for applicant to decline further information request and seek

application be processed; and conversely the Minister reject an application if

further information not provided

√

Continued on next page

101

CHANGe PROPOSeD NON-STATuTORyReGuLATION/

ByLAWSTATuTORy

Notification

Notify application and departmental report as opposed to intention to grant √

Inform stakeholders when applications notified—include on the Department’s

website and email notices

√

Provide applicant with an opportunity to withdraw the application before

notification if the officer report recommends a decline

√

Develop guidelines on when the exercise of discretion for notification

should occur

√

Require early advice to applicant on whether a concession will be notified

or not

√

Include notification of hearing dates with notification √

Hearings

Trained hearing panel participants √

use pre-hearing meetings √

Applicant right of reply at end of hearing √

Review the Hearing Guidelines √

Decision-maker not on hearing panel √

Reconsideration

Independent advice involved √

Revise guidelines √

Amend Act to reject reconsideration if new application more appropriate √

Allocation

Further investigation into contemporary allocation tools √

Pilot studies for integrated proactive planning involving the identification of

commercial activities

√

Register of existing opportunities √

Improved guidelines for tendering √

Tendering—remove right to apply to right to tender √

Planning

More proactive planning √

More specified outcomes—clarity for concession opportunities √

Better use of national planning layers/advice √

Streamlining and standardisation

Increased use of conforming schedules √

Specific conservancies to manage processing of conforming concessions √

More standard national conditions for various activities and include on

Department’s website

√

National concessions, e.g. commercial photography √

Develop online application capability √

Reduce complexity of officer reports and application forms √

Regulation bylaws for enabling activities to be ‘permitted’ √ √

Preferential rights

First in, first served principle √

Cease rolling-on practice √

Incentives for applicants to apply early √

On-going rights/obligations after expiry—should add provision similar to RMA √

Appendix 1—continued

Continued on next page

102

CHANGe PROPOSeD NON-STATuTORyReGuLATION/

ByLAWSTATuTORy

existing tools and technology

Permissions amendments to address new process √

Permissions—fix existing problems and ensure it is used consistently √

Conforming schedule—web work undertaken immediately √

Improve location of concessions page on Department’s website and its

content re. new process

√

Online applications and billing linked with Permissions √

Terminology

Refer to concessions as either non-notified or notified rather than high, low

impact, etc.

√

One-off permits renamed to short-term permits and clarity on regularity to

which an applicant can seek a short-term permit

√

First Determination Report to become officer report √

Only require leases, licences and easements √

Concessionable activities

Sporting events—policy direction re. legal entity, size of event and reasonable

cost recovery

√

educational activities—core government approved and funded education

courses do not need a concession

√

17T(2)

Amend to decline concession when plan review underway √

Amend to decline concession where expressions of interest or tendering is

preferred option

√

Performance measurement

Modification to existing performance measurements √

More active monitoring and auditing √

Project management for large applications

Improved project management approach √

Develop skilled staff √

Training

Development of a targeted training programme √

Concessions management

Key client managers for major concessionaires √

Compliance monitoring plan √

Delegations

Level one managers decision making √

Projects of national interest—GM Ops √

Structure

Critical mass in concessions capacity in North Island conservancies √

Note matters raised about central structures vs. local structures √

Re-establish a National Office support and training role for concessions √

Appendix 1—continued

Continued on next page

103

CHANGe PROPOSeD NON-STATuTORyReGuLATION/

ByLAWSTATuTORy

Style/behaviour

external customer relationship management skills improved √

Recognise value of concessions √

Recognise business needs/aspirations √

Acceptance and compliance with nationally prescribed systems √

RMA/Conservation Act

Align key parts of process √

Continued consultation re. single process options; any changes will result in

legislative reform

√ √

Matters outside scope of report

Policy work on ‘net conservation gain’ √

Policy work looking at widening scope of land exchange √

Policy work on relationship between concessions and other departmental

permits

√

Policy work on process for reviewing/amending planning documents √

Appendix 1—continued

104

Appendix 2

R e V I S e D C O N C e S S I O N S P R O C e S S D I A G R A M

KEY

xDOC

xApplicant

x Working days (maximum)

Significant milestone

105

Dec

isio

n-m

aker

5

Sig

n co

ntra

ct / a

pply

fo

r re

cons

ider

atio

n20

Non

-not

ified

Not

ified

(Not

ify

wit

hin

10

days

of

reco

mm

enda

tion

to d

o so

)

Pre

-app

licat

ion

disc

ussi

ons

App

licat

ion

lodg

ed

Date

-sta

mp

on

date

rec

eive

d

Pre

limin

ary

asse

ssm

ent

5

Firs

t dra

ft r

epor

t

Dec

isio

n

Acc

ept

[s17

S(1–

3) te

st]

25

Ext

enda

ble

by 2

0 da

ys for

iw

i co

nsu

ltati

on o

nly

Req

uest

for

furt

her

info

rmat

ion.

(O

ppor

tun

ity

to ‘s

top

the

cloc

k’)

Ass

ess

20

10-d

ay m

ark

Pro

vide

furt

her

info

rmat

ion

15Ext

enda

ble

by a

gree

men

t

See

k ap

plic

ant’s

com

men

ts10

When

req

uir

edC

ompl

ete

Rep

ort

10W

hen

req

uir

ed

Tota

l max

imum

w

orki

ng d

ays 65

DO

C

25A

pplic

an

t

Tota

l 90

Con

tin

ued

on

nex

t page

Ana

lyse

106

Dec

isio

n-m

aker

5

Dec

isio

n-m

aker

5

Dec

isio

n-m

aker

5

Hea

ring

to

be h

eld

15

Sig

n co

ntra

ct / a

pply

fo

r re

cons

ider

atio

n20

Sig

n co

ntra

ct / a

pply

fo

r re

cons

ider

atio

n20

Sig

n co

ntra

ct / a

pply

fo

r re

cons

ider

atio

n20

No

subm

issi

ons

rece

ived

Subm

issi

ons

rece

ived

Opp

ortu

nit

y fo

r

pre-

hea

rin

g m

eeti

ng

No

hea

ring

Dec

isio

n

Dec

isio

n

Dec

isio

n

Com

plet

e re

port

15

Com

plet

e re

port

20

Rec

eive

su

bmis

sion

s40

Not

ifica

tion

See

k ap

plic

ant’s

co

mm

ents

10

See

k ap

plic

ant’s

co

mm

ents

10

Fina

lise

10

Fina

lise

10

Tota

l max

imum

w

orki

ng d

ays 14

0D

OC

25A

pplic

an

t

Tota

l 16

5

Tota

l max

imum

w

orki

ng d

ays 65

DO

C

25A

pplic

an

t

Tota

l 90

Hea

ring

Tota

l max

imum

w

orki

ng d

ays 16

0D

OC

125

App

lican

t

Tota

l 18

5+

hea

rin

g ti

me

App

endi

x 2—

con

tin

ued

107

Appendix 3

O N e - O F F S , C O N F O R M I N G A N D R e - I S S u e S D I A G R A M

KEY

xDOC

xApplicant

x Working days (maximum)

Significant milestone

108

Dec

isio

n-m

aker

5

Dec

isio

n-m

aker

5

Sig

n co

ntra

ct / a

pply

fo

r re

cons

ider

atio

n20

Pre

-app

licat

ion

App

licat

ion

lodg

ed

Tota

l max

imum

w

orki

ng d

ays

5D

OC

20A

pplic

an

t

Tota

l 25

On

e-o

ffs

an

d C

on

form

ing

ap

pli

ca

tio

ns

Sig

n co

ntra

ct / a

pply

fo

r re

cons

ider

atio

n20

Dec

isio

nP

re-a

pplic

atio

n

Tota

l max

imum

w

orki

ng d

ays 20

DO

C

20A

pplic

an

t

Tota

l 40

Re

-iss

ue

s

App

licat

ion

lodg

ed

Date

-sta

mp

on

date

rec

eive

d

Pre

limin

ary

asse

ssm

ent

5A

sses

s10

Acc

ept

[s17

S(1–

3) te

st]

Firs

t dra

ft r

epor

t

Dec

isio

n

109

Appendix 4

R u N O F T H e M I L L , N O N - N O T I F I e D D I A G R A M

KEY

xDOC

xApplicant

x Working days (maximum)

Significant milestone

110

Pre

-app

licat

ion

App

licat

ion

lodg

ed

Date

-sta

mp

on

date

rec

eive

d

Pre

limin

ary

asse

ssm

ent

5

Acc

ept

[s17

S(1–

3) te

st]

Ass

ess

10

25

Ext

enda

ble

by 2

0 da

ys for

iw

i co

nsu

ltati

on o

nly

No

furt

her

in

form

ati

on

requ

ired

Firs

t dra

ft

rep

ort

Dec

isio

n-m

aker

5D

ecis

ion

Sig

n co

ntra

ct / a

pply

fo

r re

cons

ider

atio

n20

Tota

l max

imum

w

orki

ng d

ays 45

DO

C

20A

pplic

an

t

Tota

l 65

Ana

lyse

111

Appendix 5

C O N S u L T A T I O N

The following parties were consulted as part of this process:

Adventure Specialties•

Contact energy Limited•

Dean Laurie—Ngäi Tahu Tourism•

Department of Conservation’s National Non-government •

Organisations Forum

Department of Conservation staff•

energy Generators Forum•

Genesis energy•

Geoff Gabities—Adventure South•

Greater Wellington Regional Council•

K.J. Jennings—Otago and Southland Film Industry representative•

Land Information New Zealand•

Land Transport Agency•

Local Government New Zealand•

Mark quickfall—Totally Tourism•

Meridian energy•

Mighty River Power•

Milford Dart Limited•

Ministry for the environment•

Ministry of economic Development•

Ministry of Fisheries•

Ministry of Tourism•

Mountain Bike NZ•

New Zealand Conservation Authority•

New Zealand Deerstalkers’ Association •

New Zealand Minerals Industry Association•

Ngäi Tahu•

Paul Beverley—Buddle Findlay•

Real Journeys•

Stephen Christensen—Anderson Lloyd Lawyers•

Straterra Incorporated•

Tourism Industry Association New Zealand•

TrustPower Limited•

Whitewater New Zealand•

112

Appendix 6

W O R K I N G G R O u P M e M B e R S

Marie Long (Project Leader—Policy)

Kate Brooking (Policy)

Graeme Speden (Policy)

Briony Dyson (Recreation and Historic unit—R&D)

Anne Bogle (Legal Service unit—CSG)

Deidre ewart (Tongariro/Taupo Conservancy)

Ken Stewart (Otago Conservancy)

Campbell Robertson (West Coast Tai Poutini Conservancy)

For part of the process

Marian van der Goes (Otago Conservancy)

Adrian Griffiths (Nelson/Marlborough Conservancy)