Resource Management Act: RMA Link: Processes: Details

Which Consent Applications are Publicly Notified?
The classification of activities (activity status) in the district or regional plan influences whether applications are notified or not. Classification determines the degree of control that councils and communities have over the effects of an activity.

Sections 93 and 94 of the Act outline notification requirements. The following is a summary:

A permitted activity does not require a resource consent, so there is no notification. It must meet basic standards or limits set by plan rules, or it will be treated as a controlled or discretionary activity.

A controlled activity is not usually notified. A council is unable to refuse a consent if the applicant’s proposal meets the standards and rules in the plan. Council has no discretion to impose conditions, other than those those that relate to the matters specified in the plan rule.
Plan rules may state that notification is not required, or may state that it is not required if written approval of affected persons is obtained. (Rules may also state that written approval is not required, and notice need not be served on affected persons.)

A discretionary (restricted) activity will not be notified if the plan states that notification is not required. (Limited notification will not be required if the plan states that notice need not be served. Such provisions further reduce the scope for community participation). Otherwise it will be treated the same as a discretionary activity. A Council’s discretion is limited to particular matters, which will be stated in the plan rules. Council may grant or refuse consent, and impose conditions, only in relation to these matters.

A discretionary activity will not be notified if:
(a) written approval has been obtained from all persons who council considers may be affected, and
(b) the effects are considered no more than “minor”.
Council retains wide discretion over all matters. It is able to refuse consent, or to address environmental effects by imposing conditions as it considers appropriate.

A non-complying activity will not be notified if;
(a) written approval has been obtained from all persons who council considers may be affected, and
(b) the effects are considered no more than “minor”.
Council may grant or refuse consent, but must refuse if the effects are more than “minor”, and granting the consent would be inconsistent with the objectives and policies of the plan.

A consent may not be granted for a prohibited activity. The applicant can seek a plan change, to alter the activity status to non-complying or discretionary.

Limited Notification
Section 94 provides for limited notification. This applies to controlled activities (where the plan does not state that notification is required), or where a council considers the effects are ‘minor’,but one or more of the affected parties have not given their written approval. The application will then be notified only to those people who council considers may be adversely affected.

Only these people may make submissions on the application, and have the subsequent right of appeal to the Environment Court. Limited notification would normally include neighbours, and also tangata whenua, but often excludes groups and individuals acting in the public interest.

Interpretation of ‘Minor’
Section 94 states that, when forming an opinion as to whether the adverse effects of an activity on the environment will be ‘more than minor’, a council may disregard an effect ‘if the plan permits an activity with that effect’. This incorporates into the Act the ‘permitted baseline’ that has been established in case law. The ‘baseline’ is further explained in the references below. When a ‘restricted discretionary’ activity is being considered, the council can only take into account the effects specifically listed as being within its discretion.

Public vs Private Objectives
Public notification provides for direct community involvement in managing the environmental effects of an activity. Community involvement is important, as it puts decision makers in touch with the knowledge, observations and values of people who live in an area. Residents know their local environment, and are well-placed to assess the effects that activities may have on it - the longer term, cumulative effects, the less obvious effects, and the various types of effects and risks that are outlined in section 3 of the Act.

Many communities, or groups within communities, wish to exercise an 'ethic of stewardship' (Section 7aa) over their local environment, through their elected decisionmakers. If consent applications are non-notified, the community has no opportunity to verify that environmental effects have been properly assessed, or to ensure that decisionmakers are aware of community values. Without community input, a council is heavily reliant on the information provided by the applicant.

Applicants (and councils) often try to minimise notifications, as they add to the applicant’s costs, lengthen the time taken to process the consent, allow public scrutiny of applicants’ proposals, and may lead to stricter conditions being imposed, or even a refusal.

There is ongoing tension between these views. Only around 5% of all consent applications are publicly notified. A number of applications with significant environmental effects are processes without notification.

Approval of Affected Persons
There is a strong incentive for applicants to gain the approval of neighbours or ‘affected persons’ (section 94). This is often achieved through pre-hearing meetings and negotiations. In some situations this involves compensation of some type, e.g. remedial works or monetary payments. These arrangements are known as ‘side agreements’. (See reference list below for PCE report on side agreements.)

If a person gives their written/signed approval, and later wishes to withdraw it, they are free to withdraw it up until the date that submissions close. If approval is not withdrawn by the closing date, no further consideration can be given to effects on that person.

Non-Notified Consent Applications
You may be concerned about an application with significant environmental effects, and want to ensure that it is publicly notified. The 2005 Amendment Act has made it easier for affected people and community groups to challenge consent authorities’ decisions not to notify, or to require ‘limited notification’ only. This can now be done through the Environment Court, as a ‘Declaration’ procedure. Costly High Court action is no longer required.

If you have concerns about a proposal, you may approach your elected council members personally, and also council staff, before a decision regarding notification is made. Discuss your concerns with them, and try to persuade them that the effects of the proposal are in fact ‘more than minor’. They may then decide to notify.

In the longer term, your group can try to address concerns over non-notification through the plan review process.

Your submissions should seek discretionary or non-complying status for activities that you consider have significant environmental effects. (See ‘Breaking Down the Barriers’, p11-12, and p22-23). You can request that a policy presumption in favour of notification is included in the plan, and request that blanket provisions stating that 'notice need not be served', or applications 'need not be notified' be removed.

If an activity is not classified in a plan, it does not require a consent, and is allowed as of right. This means that if there is an oversight in preparing a plan, there can be unintended consequences, e.g. in the Hutt City District Plan, demolition of heritage buildings was omitted from classification. In this particular case, a plan change was introduced to address the oversight.

 

Atkins H. (2003) Summary of Case Law on Notification Under the RMA.
Ministry for the Environment, Wellington.
Available online at www.mfe.govt.nz/publications.

Memon, P A and Perkins H. (eds) (2000) Environmental Planning and Management in New Zealand.
Dunmore Press, Palmerston North.
Chapter 10, p115-122. The Politics of Consent Notification, by B Gleeson.

Royal Forest and Bird Protection Society of New Zealand (1995) Stopping the Bulldozers Before They Start.
Royal Forest and Bird Protection Society of New Zealand, Wellington.
This publication covers making submissions on regional and district plans. Contains useful guidance on notification issues.

Peart, R. (2004) The Community Guide to the Resource Management Act 1991.
Environmental Defence Society, Auckland.
P32-33. Notification of Resource Consent Applications. Background information.

Harris, R. (2004) Handbook of Environmental Law.
Royal Forest and Bird Protection Society of New Zealand, Wellington.
Chapter 4A, p139-152. Making Applications and Submissions. Includes discussion of non-notification issues, and information on the ‘permitted baseline’ test.

Journal Articles

Brabant, R. (1999) Adverse Effects, Adequacy of Assessments, and Non-Notification.
Resource Management Bulletin, vol2, p37.

Brabant, R. (2002) In Defence of the Section 9 Baseline.
Resource Management Bulletin. vol 4, p109.

Milligan, J. (2001) Locating the Baseline – Part 1.
Resource Management Bulletin v4, p13.
Locating the Baseline – Part 2.
Resource Management Bulletin, v4, p25.

Milligan, J. and Skelton, P. (2002) The Permitted Baseline – A Reply to Richard Brabant.
Resource Management Bulletin, v4, p111.

Palmer, K. A. (2001) Permitted Baseline, Effects and Precedent – Arrigato and Dye in the Court of Appeal.
Resource Management Bulletin v4, p88.

Web-Based Resources

Site: www.mfe.govt.nz/issues/resource/technical/case-law/index.html
Resources: A summary of case law on non-notification and judicial review. Prepared for MFE by experts in environmental law. Notes on a total of 27 cases current to January 2004.