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Assessing the application and the assessment of environmental effects

Abstract

An application for a resource consent requires the applicant to supply an assessment of environmental effects (AEE). The Council's role is to audit the AEE. This Guidance Note provides information about assessing an application, undertaking site visits and recording the assessment.

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Guidance note

Initial assessment

Once an application is lodged it is necessary to ensure that it addresses all the relevant environmental effects likely to arise during the course of the proposed activity. Section 88(2)(b) of the Resource Management Act 1991 requires that an AEE must be in accordance with the Fourth Schedule of the Act. The effects that need to be addressed are:

The AEE should be in such detail that corresponds with the scale and significance of the effects that the activity may have on the environment. So for a small development, such as to erect a garage within the required setback from a side boundary, only a short and less detailed AEE is necessary. In comparison a proposed coal mine, where the effects are considerably more significant, should have a much more detailed application. To assist the assessment of applications for their completeness and adequacy of the AEE it may be useful to develop a checklist for the consents officer to work through. See Example: Checklist for processing officer (MS Word 89KB).

There are three key functions of the initial assessment. These are:

  1. Checking what consents are required and has the applicant applied for all of them
  2. Checking what effects have been identified and whether there are others that need addressing to meet the requirements of the Fourth Schedule of the Act
  3. Determining the application process.

Once this assessment has been done, the council officer can move on to determining the scope and complexity of the application and also identifying whether any further information and/or specialist advice is needed to assist in processing the application.

It is good practice for the council officer allocating applications to allocate them to officers with the relevant level of competency for each application. For example, more complicated or contentious applications should be allocated to the more experienced planners with simpler ones going to those with less experience to begin with.

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Have the appropriate consents been applied for?

The first step in the process is to determine if all the necessary resource consents have been applied for. In order to make this judgement the processing officer needs to check for compliance with the plan rules and relevant matters under the Act. As the check is made the processing officer should also make note of:

If the applicant has not addressed all of the reasons for resource consent or non-compliances, the applicant should be requested to acknowledge any outstanding non-compliance in writing so that the applicant is aware of all of the reasons for consent and to ensure that any actual or potential effects arising from additional non-compliances are addressed.

Keep a record of the check against the plan rules on the consent file so it can be easily referred to throughout the processing of the application. This will also allow other planners to answer queries they may field about the application in the absence of the actual processing officer.

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Have the appropriate effects been identified and addressed?

The terms 'effect' and 'environment' under the RMA are broadly defined. It is the role of the AEE to identify and address particular effects of a proposal on a particular environment. The term effect includes:

All of these effects must be considered regardless of their scale, intensity, duration, or frequency of effect, including whether they are a potential effect with high probability and/or low probability which could have a high potential impact.

The effects to be considered will depend on the type of application and the nature of the activity proposed. For controlled and restricted discretionary applications:

For discretionary and non-complying applications:

For each effect, summarise any assessment techniques used. Check:

Determining the impact of any environmental effects is not only paramount to determining if an activity is appropriate under sections 104 and 105 of the Act, but also in determining whether or not an application can be considered on a notified, limited notified or non-notified basis. This determination depends on whether the adverse environmental effects are considered more than minor or not.

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Determining the extent of adverse effects

It is good practice to think about the level of effects along a continuum to ensure that each effect has been considered consistently and in turn cumulatively. Some Councils use a similar scale to assess effects based on rating the extent of the effect with a number.

Refer to the follow examples for writing reports and assessing effects:

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Are there any aspects of the application that need specialist advice?

Commonly specialist advice is obtained from internal council officers. Where their expertise is not specialised in the particular environmental effects then the council should consider the use of external experts. However, careful consideration should still be given as to when external specialist input is required.

Specialist advice should be sought if it is believed that the proposed activity could have a significant adverse effect on the environment and the council does not have the expertise itself to audit the application. Section 92(2) of the Act only allows councils to commission a report from a specialist if the effects are considered significant and the applicant is notified in writing of the reasons for requesting the report and agrees to the report. The applicant has 15 working days to advise the consent authority in writing whether or not a report is agreed to. The consent authority must continue to process the consent, and must continue to process the application, and subsequently may decline the application if a response is received outside 15 working days, or if the applicant refuses to give their agreement to the commissioning of a report and the authority has insufficient information to make a decision on the application. The advice sought might relate to just one effect or several depending what the requirements are. For more information on commissioning a report see Requesting further information.

Specialist advice should be sought when the application is technical and internal staff do not have the resources (including time) or the expertise to provide such information, or when the effects that may arise need to be considered by an expert in the related discipline e.g. landscape architect to address visual impact of a building in a sensitive landscape. If an application will be contentious this is not solely a reason to allow the commissioning of a specialist report. If the council is concerned that they should be seen to be processing an application in an impartial manner then they should appoint someone outside the council as the section 42A Reporting Officer to act on behalf of the Council.

The purpose of a commissioned report should be to peer review or audit information supplied by the applicant, or to undertake an assessment of certain effects that the applicant has failed to address.

Helpful tips for involving specialists in the auditing of applications and AEEs:

Example: Letter for commissioning report from an expert (MS Word 27KB)

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Checking the certificate of title and the property file

Checking the certificate(s) of title and the property file for the site will familiarise you with both the history of the site and any particular restrictions that might apply to the use of the site. There may have been previous applications on the site, illegal buildings or activities, or restrictions on the title that might influence the assessment of environmental effects. In particular, the certificate of title(s) may contain consent notices or covenants, and identify rights-of-way and easements that may affect how the property can be subdivided, used or developed. See Reading and Interpreting Certificates of Title for more information.

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Site visits by council officers

The site visit allows an 'on the ground' check of the application's accuracy, including the accuracy of the AEE. It is a vital part of the assessment process. It also helps to identify the effects of the proposal in comparison with what is reported in the AEE and which parties may be adversely affected.

It is important that a site visit correctly records the site and that the visit is as complete and accurate as it can be to avoid having to visit the site again unnecessarily to check things. Determining when to undertake a site visit is also important. It is good practice to do it soon after receiving the application and after the initial assessment of the application. A site visit can be undertaken before any request for further information is made so that the council officer has a clear understanding and feel for the site.

A site visit should be reasonably planned and organised so that the council officer is certain of the aspects of the site that need to be investigated and recorded. Where practicable, site visit(s) should also be planned during times and conditions when it is considered best to assess the potential effects. For example, when considering a proposal such as a crèche which has an on-site parking shortfall, visits to the site should ideally be during the times of peak parking demand so that the effects such as the impact on on-street parking, noise etc. can be more accurately assessed. More than one site visit at different times of the day may also be warranted for more significant proposals in order to thoroughly assess effects.

It is also courteous to phone the applicant prior to going on-site to advise them when the site visit is planned. In addition there may be access restrictions or potential hazards on-site that need to be discussed with the applicant prior to the visit. Carrying identification on site is also advisable should anyone enquire as to your reasons for being on the site.

The checklist for site visits (MS Word 30KB) provides a useful template from which to organise and base a visit.

Role of the applicant

An applicant may be present at a site visit. In some cases the applicant may wish to be present and this can help to clarify issues on site. Alternatively the council officer can visit the site alone, particularly if the proposed activity is relatively simple and the site is easily accessed and traversed.

Consultation

Section 36A of the RMA specifically states that there is no duty to consult any person about resource consent applications and notices of requirement. This applies to both applicants and councils. Nevertheless, for many resource consent applications and notices of requirement, consultation will play a significant role in assessing the effects. Further details and methods of consultation are contained in Consultation and Consultation with Tangata Whenua.

What to tell the neighbours

While on a site visit if neighbours approach to ask what is happening, the council officer can discuss the proposal with them (the application is public information). These discussions can contribute valuable knowledge to the assessment. However, as the applicant is paying for the officer time spent on the inspection, conversation should be kept to a minimum and remain objective and factual.

Making a permanent record of the site

Photographs of the site may be required as part of the assessment. They can be particularly useful for identifying elements on the site or for discussing the potential effects with other people (including any peer reviewer). For medium or complex applications, a photo montage (which either covers the portion of the site affected by the proposal or completely covers all aspects of the site and locality) helps in making the recommendations, in decision-making and monitoring and is a particularly good record of any unusual site features e.g. vegetation or topography.

Record exactly when the photo was taken, where it was taken from and through what sort of lens.

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Report writing

Once all of the necessary information has been obtained the council officer reporting on the application should then be in a position to determine if the application should be notified, limited notified or non-notified and if there are any potentially affected parties from which written approvals should be sought. See To notify or not to notify? That is the question! for determining if an application should be notified, limited notified or non-notified and how to determine potentially affected parties and the scale of effects.

The section 42A Officer Report needs to provide an assessment of the application and the anticipated adverse environmental effects. The report must determine the extent, scale and nature of the effects associated with an activity and what the impact of these effects will be i.e. are they nil, de minimis, minor, significant, unacceptable.

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Forms and checklists

Example: Checklist for processing officer (MS Word 89KB)

Example: Checklist for site visits (MS Word 30KB)

Example: Letter for commissioning report from an expert (MS Word 27KB)

Example: Non-notified report (MS Word 39KB)

Example: Non-notified report for hearing (MS Word 42KB)

Example: Notified report for hearing (MS Word 101KB)

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Case law

The following cases contain discussion on application and AEE assessment matters (also see Summary of Case Law on Notification under the RMA).

Campbell v Southland District Council W114/94 and Boddy v Grey District Council W88/94 (PT) – addresses how to consider beneficial effects of a proposed activity.

Dye v Auckland Regional Council 11/09/01 CA 86/01 – this decision provides commentary on how to consider cumulative effects and how these can be distinguished from precedent effects.

Paihia District Citizens Association Inc. v Northland Regional Council A77/95 – although not mandatory, consultation with iwi by applicants is advisable in specific cases.

Bethwaite v Christchurch City Council C85/93 (PT) and Stokes v Christchurch City Council EnvC C108/99 – when considering actual and potential effects of an activity, any mitigation of effects through the imposition of conditions may be considered. This decision also provides commentary on the meaning of 'minor' effects.

Barrett & Others v Wellington City Council [2000] NZRMA 481 and Smith Chilcott Limited v Auckland Regional Council [2001] NZRMA 503– comparing effects anticipated against those permitted by the plan to occur on site (permitted baseline).

Marlborough District Council v NZ Rail Ltd and Sea Shuttles Ltd [1995] NZRMA 357 (PT) - an adverse effect must be perceptible and not the type of effect that one might normally experience in the day to day activities of society.

Shirley Primary School v Christchurch City Council EnvC C136/98 - this decision discusses effects of low probability but high potential impact.

Northcote Mainstreet Inc v North Shore CC [2006] NZRMA 137 (HC) - there is no legal impediment to making a second application for a resource consent for an activity where a resource consent already exists for that activity.

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Relevant publications

Talking Constructively: Guide for Iwi, Hapu, Whanau on Building Agreements with Local Authorities
Published by Ministry for the Environment - January 2000
This guide is designed to be a practical summary to help iwi, hapu and whanau and local authorities to prepare for all forms of joint discussions including mediation.

Auditing Assessments of Environmental Effects: A Good Practice Guide
Published by Ministry for the Environment - March 1999
This guide outlines good practice for regional and district councils in auditing assessments of environmental effects. The Resource Management Act requires each resource consent application to be accompanied by an assessment of environmental effects. Councils need this information to make informed decisions on granting resource consent and setting conditions to control potential effects.

A Guide to Preparing a Basic AEE
Published by Ministry for the Environment - August 2006
An assessment of environmental effects must accompany each application for a resource consent under the Resource Management Act. This guide is intended to help applicants understand the process and prepare a simple assessment of environmental effects.

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Relevant websites

The following are a selection of websites that may be of assistance and are relevant to this guidance note:

The Auckland Regional Council contains a webpage on what to include in an AEE. Go to Auckland Regional Council's Applying for a resource consent.

The Dunedin City Council has a pamphlet on assessment of environmental effects available electronically. This guide for the applicant on AEE includes an outline of what to include in an AEE, as well as examples of possible effects of interest to the Dunedin City Council. Go to Dunedin City's Councils Assessment of Environment Affects pamphlet (PDF 175KB).

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Current challenges in practice

Determining the significance of adverse environmental effects

It is often challenging determining whether the adverse effects associated with a particular activity are more than minor and if they are more than minor, whether they can be successfully mitigated throughout the life of the project. This is particularly the case when dealing with new types of projects, or existing types of operations which are now using new and improved technology. To address this challenge care should be taken to keep officers informed about new technology and to assist in determining the extent of effects through good assessment systems. The permitted baseline technique is a sound base from which to work. However, where a permitted baseline is not of particular relevance to an activity then considerable thought needs to be given to the extent of adverse effects and when they might trigger an adverse cumulative effect or become more than minor in scale.

Reporting on the significance of the adverse effects on the environment

Once having decided as to the extent of any adverse environmental effects, it can then be challenging to report this finding succinctly so that the applicant and decision makers can recognise that the judgement is justified. This reporting needs to be simply expressed and soundly reasoned. Sometimes this may require expansion on how things have been reasoned even when it may be a relatively simple application. If there is concern that a particular effect may be contentious then it is preferential that the explanation is carefully justified in the report. This may assist in reducing objections/appeals/judicial reviews at a later date.

Determining the extent of any cumulative effects

Determining when exactly the cumulative impact of an activity, or the cumulative effect of all like activities, has reached a threshold where the effects are considered significantly adverse and unacceptable can be extremely difficult. This is particularly if the assessment relates to activities that are not easily quantified, for example the extent that another small allotment created by a subdivision in a rural area may have on residential density in an area. This scenario can be assisted by gaining specialist advice on different applications. More importantly though assistance might be better provided through commissioning specific studies outside the resource consent process that determine what levels of development may be acceptable in the future. This would provide a more pro-active approach for guiding processing planners, rather than a reactive approach. However, it can be challenging convincing councils to attribute funds to this type of research.