Consultation
Abstract
While undertaking consultation for resource consent applications is not mandatory, the Environment Court has stated that it is recognised good practice to consult.
The Fourth Schedule (Clause 1(h)) of the Resource Management Act states that an Assessment of Environmental Effects should include a statement that identifies those persons interested in or affected by the proposal, details of any consultation undertaken, and any response to the views of those consulted. The extent and nature of consultation is up to the individual applicant. Councils are also required to consider the tangata whenua interests recognised in sections 6(e), 7(a) and 8 of the Act when making decisions on resource consent applications. The duty of early consultation with tangata whenua has been identified by the Court of Appeal as one of the principles of the Treaty of Waitangi.
Consultation can help an applicant to shape a proposal to make it more acceptable to the community. An applicant has to weigh up the benefits against the costs and delays that may occur during the consultation process.
This guidance note provides advice on what is considered to be good practice in consultation and suggests how Councils can assist applicants in undertaking effective consultation prior to the lodgement of an application, maintain communication channels with those with whom applicants have consulted, and determine whether effective consultation has been undertaken.
Councils should assess the effectiveness of consultation carried out by applicants, and where necessary, the accuracy of statements about consultation that applicants include in their Assessments of Environmental Effects.
For more detailed information on consulting with tangata whenua, refer to the guidance note Consultation with tangata whenua. This guidance sets out what Councils can do to facilitate the consultation process, including establishing formal relationships with tangata whenua, maintaining contact databases for tangata whenua groups, and ensuring that tangata whenua interests are provided for in the conditions attached to the granting of resource consents.
For more information on consultation for plan and policy development, refer to the guidance note Consultation process.
Guidance note
What constitutes consultation?
Consultation can be undertaken in many different ways but it is important to know that essentially consultation is a process about:
- providing enough information to an interested party to enable them to understand a proposed activity
- discussing it with them
- receiving any comments they might have.
Consultation can form part of the process of preparing an application. Consultation involves parties entering into a process without having first made up their minds about every aspect and doing so reasonably and in good faith.
Consultation is different to obtaining written approvals from affected parties. The objective of consultation should not primarily be obtaining a party’s written approval as an affected party, though that may be an outcome of the consultation process. The first approach to an interested party should not be providing ‘final’ plans for their written approval.
Both the Council and the applicant need to understand that the scope of the consultation should correspond to the scale of the effects of the proposed activity. Consultation does not mean that all parties have to agree with what is being proposed, though this can obviously assist in ensuring that the proposal encountered less opposition in later stages of the planning process. The Ministry for the Environment, in a working paper produced in 1995, stated that:
Consultation is not:
- Merely telling or presenting
- Intended to be a charade
- The same as negotiation, although a result could be an agreement to negotiate.
Consultation occurs with people who may have an interest in an application. This may or may or may not include people who the Council determines to be adversely affected pursuant to section 94 of the Act. In providing advice to applicants, Council officers must draw a distinction between whether they consider an applicant should consult a particular person or party, and whether the written approval of a person is likely to be required. It is good practice to consult early as this helps determine whether certain parties are affected.
An applicant may be reluctant to consult because they may not wish to ‘alert’ neighbours to the proposal. Often they will only discuss a proposal with neighbours if the Council has indicated that written approvals will be required. This can occasionally lead to tension between the applicant and the neighbour, which may have been avoided through consultation. Consultation during the development of the proposal can address and resolve assumptions about likely concerns for both the applicant and neighbours.
People are generally more comfortable with change if they have had an opportunity to consider the proposal in advance of bulldozers arriving on the site. In some instances, the applicant may be a future neighbour so it is worth taking the time to consult with existing residents.
What should the applicant do?
It is essential that the applicant understands the principles of consultation in preparing an application. Applicants need to know what the legal requirements for reporting on consultation are and what their responsibilities entail. They also need to know what they have to do.
As indicated above, applicants are not obliged to consult with any party. Their only legal obligation is to report on the outcomes of consultation, where they carry it out. However, consultation is obviously good practice, for the reasons outlined above. Consultation by an applicant prior to making an application for resource consent enables concerns of any interested or affected persons to be taken into account in developing the application.
Consultation can help identify likely potential and/or actual environmental effects, and help to develop ways of overcoming or mitigating any adverse effects. Consultation can also act as a guide to the amount of public concern surrounding an application.
An Assessment of Environmental Effects may be incomplete without consultation about matters that may be of significance to tangata whenua. In such situations, it is in the applicant’s best interests to consult with tangata whenua to reduce the likelihood of their application being rejected for lodgement, being subject to requests for further information, or being publicly or limited notified.
In carrying out consultation it is important the applicant understands that they should provide sufficient information and time for the consulted party to:
- Genuinely consider the information provided
- Participate (such as through being able to discuss the application or ask questions)
- Make informed decisions, particularly if their written approval is subsequently sought
Ideally all parties involved in consultation should keep an open mind and be willing to change. The applicant should be aware that parties consulted might not necessarily support the project.
The applicant should be advised to identify and advise of the actual and potential effects of a proposal on the parties they are consulting.
The pamphlet A Guide to Consultation for Resource Consent Applicants, published by the Ministry for the Environment provides some useful information for applicants on consultation.
What is the council's involvement in consultation?
With respect to a council's involvement in consultation, they should:
- Provide assistance to an applicant in helping determine what level of consultation may be required.
- Assist in identifying parties who may be interested in or adversely affected by a proposal or activity, with the proviso that a formal assessment of who may be adversely affected will only be undertaken once the application is lodged. On occasion, the Council may facilitate consultation by contacting such parties, such as when consultation with tangata whenua is proposed.
- Assist any interested or affected persons on clarification of procedural matters, where required.
- Assess the consultation that has been undertaken and described in the Assessment of Environmental Effects, such as the level of consultation that has occurred, who was consulted and over what time, the issues that were raised, and how the applicant has addressed the outcomes of consultation in their application.
Council officers should advise potential applicants at the earliest possible stage if they believe that consultation should be undertaken.
Section 94B of the Act provides guidance to consent authorities when forming an opinion on who may be adversely affected by an activity. See To notify or not to notify for further information on forming opinions about affected parties.
Councils are required under sections 6(e), 7(a) and 8 of the Act, to give careful consideration to consultation with tangata whenua. Where there is a background of Maori significance, council officers should follow up these matters. See Consultation with tangata whenua for further guidance on consultation with tangata whenua.
Council communication with interested and affected parties
People who have been consulted may contact the Council for advice on the consent process, and in particular, what their rights are. Interested parties may also contact the Council to express their concern about a proposed development, before or during the consent process.
The Council should provide advice on consultation and outline processes for consent applications.
Council officers should assist interested and affected persons on procedural matters, as often people who are consulted know very little about the consent process. This does not mean advocating for any party, but it does require explanations of the process and the rights and obligations of the parties involved.
Council officers need to provide clear advice to interested and consulted parties on the determination of affected persons:
- Interested parties need to understand that while they may be concerned about a proposal, they may not be affected or have the right to lodge a submission on the application.
- Consulted parties need to understand that while they may have been consulted, this does not mean that they will be an affected person under section 94 of the Act.
Do suggest to interested and consulted parties that they put any concerns in writing in a letter to the Council. The reporting officer is then obliged to advise the decision maker of their concerns and a record is able to be kept as to both the concern raised and how it was dealt with (which is important if the issue is later challenged). Refer to Videbeck v Auckland City Council RMA229/02.
A Council officer might need to explain why non-RMA matters cannot be taken into account as part of the assessment. They may also need to explain how a restricted discretionary activity and the permitted baseline affect the Council’s discretion when assessing the application.
A council may wish to take the approach of advising interested and consulted when the relevant application is lodged. However, this may not be feasible for Councils that receive thousands of applications per year, so alternatives should be provided, such as suggesting that they enquire through the helpdesk at a later date to check on whether the application is lodged. Some councils are beginning to advertise notified resource consent applications on their websites, for example Rodney District Council.
Once the application is lodged Council officers may be asked to explain aspects of the proposal to interested and consulted parties. It is appropriate for Council officers to do this, but the ‘neutral role’ of the Council officer must not be compromised. This does not preclude a Council officer facilitating a resolution by providing suggestions to either party on resolving matters of concern.
For large or complex applications, the council should appoint an officer to liaise closely with the application over the duration of the consent. This person can also help the applicant make their way through council processes.
Many Councils have a standard letter that they use to respond to interested and consulted parties. This letter should inform the parties about consent procedures and their rights. The following is a list of matters that should be covered in the letter:
- Confirmation of whether the application is lodged. If the application is lodged, state where in the process the application is, e.g. “section 94 has not been determined”. Ensure that you express technical terms in plain English.
- Confirm that their letter and this response will be on the site file so that the reporting planner is aware of their concerns.
- The consent processes including the determination of affected persons.
- If the applicant has approached them, explain why they have been approached and the constructive purpose of consultation, but that this does not automatically mean that their written approval will be required, and that they do not have the right to veto the application.
- How they can find out more information if or when the application is lodged.
Quick reference web-based resources on the rights of people being consulted, and the processes which they may want information on can be found on the Ministry for the Environment website:
What are effective forms of consultation?
The key message to give to applicants is that they should consider:
- starting early
- providing information to the right people
- identifying effects on the environment
- engaging with the right people.
The actual form of consultation undertaken by an applicant will largely depend on what the proposal entails, its complexity, and their relationship with the parties to be consulted. Therefore, the way in which consultation is undertaken and its extent needs to be decided on a case by case basis.
Councils should not be concerned about the way in which an applicant has consulted, but rather whether the consultation has been effective, the outcome of any consultation, and how the applicant has addressed the outcome in the application (see Wellington Airport Ltd v Air New Zealand regarding the key elements of consultation). For a discussion on determining whether the level of consultation is proportionate to the potential effects, refer to D L Newlove Ltd v Northland Regional Council (A30/94/PT).
Examples of consultation methods are:
- Meetings – open-ended and open-minded discussions with individuals or groups
- Public forums or open days (often used for larger applications)
- Exchange of letters and informative material
- “House-meetings” of community or specific interest groups
- Workshops
- Site visits
- Telephone discussions (which may include the establishment of “Hotlines or Infolines”)
- Websites.
Has effective consultation been undertaken?
While there is no obligation for an applicant to consult, Councils need to determine whether the Assessment of Environmental Effects addresses all the relevant effects and meets the requirements of section 88 of the Act. It may well be that in some situations it is only through consultation that a full assessment of effects can be provided. This is particularly likely where there are matters of significance to tangata whenua.
Where consultation has been undertaken, assessing its effectiveness will depend on the nature of the application and its generated effects.
An application for a large-scale activity with widespread effects, such as a major extension to an existing quarry would normally involve an applicant undertaking extensive consultation over a period of months (or years) using a range of different methods. The Assessment of Environmental Effects would usually cover the following points:
- An overview of the consultation undertaken
- Details of the information submitted to the consulted parties
- A record/ diary of the consultation process including who was consulted, dates and times of - meetings or discussions
- A summary of what was discussed, supported by any minutes and a list of the parties in attendance at meetings or discussions
- The opinions or comments of the parties consulted
- A record of any changes or modifications to the proposal that have been made to address the concerns of those consulted and
- A statement of whether there are any side agreements.
The record of consultation that is provided can assist a consent officer to determine how the application has been developed, and particularly, how the local community has been involved in developing and shaping the proposal. This can assist in assessing who may be adversely affected by the application once it is lodged.
For smaller-scale activities where the effects are perhaps contained and/or minor, consultation may be limited to the surrounding residents or a single neighbour. In these instances, Council officers would normally expect to see the Assessment of Environment Effects cover all or some of the following points:
- When the consultation took place
- Who was present
- A copy of any information that was circulated by the applicant to those being consulted
- What was discussed (in summary)
- The timeframe given to those consulted to review the proposal and provide comment
- The opinions or comments of those consulted
- Whether the proposal changed as a result of the consultation
- A statement of whether there are any side agreements.
On occasion, if there is some uncertainty about whether the details of the consultation are accurate, the council officer may consider This calling the parties concerned to confirm the detail of their responses to the applicant. This needs to be managed carefully in a manner that does not compromise the neutral role of the council officer.
Who to consult?
Depending on the nature and scale of the proposed activity, there are several parties that an applicant (or the council, if a policy of the council requires consultation) might potentially need to consult. These include:
- Regional council, if an application is to be made to the district council
- District councils, if an application is to be made to a regional council
- Tangata whenua
- The local office of the Regional Fish and Game Council
- The local conservancy of the Department of Conservation
- New Zealand Historic Places Trust
- Ministry of Agriculture and Forestry
- Ministry of Transport
- Transit New Zealand
- Public Health Services
- Service authorities or utility providers, i.e. power companies, airports, port companies, telecommunications companies
- National and local environmental groups
- Residents associations/ community groups/ recreational associations or clubs
- Individual land owners and tenants
- Resource user groups.
Good practice tips
- Consider developing a standard list of statutory agencies, utility bodies, etc. as part of an application pack, or perhaps list them at the back of a brochure about consultation. These lists could be particular to localities in the district or region.
- Assist applicants by identifying tangata whenua groups who may have an interest in applications in particular localities in the district or region. Information on maintaining a database of tangata whenua contacts is set out in Consultation with Tangata Whenua.
- Consider production of a brochure outlining the key elements of effective consultation and examples of consultation methods. The pamphlet A Guide to Consultation for Resource Consent Applicants, published by the Ministry for the Environment provides some useful information for applicants on consultation.
- Provide a form for applicants on which to record consultation undertaken. See examples of Resource Consent Application Form and Checklist for applicants (below) which include sections on consultation.
- For good practice methods and tips on consultation with tangata whenua see Consultation with Tangata Whenua.
Forms and Checklists
Resource consent application form (DOC 116 KB)
Checklist for applicants (DOC 40 KB)
Published June 2004
Case law
The following cases contain discussion on consultation matters:
Ngati Hokopu ki Hokowhitu v Whakatane District Council C168/02, 8 NZED 252 – Consultation must necessarily take place before the application is lodged. Any discussion between the applicant and other persons that takes place after is not ‘consultation’ for the purpose of the Assessment of Environmental Effects.
Bayley v Manukau City Council [1999] NZRMA 396 – The High Court held that the Council and the applicant were under no legal obligation to consult, nor was the Council obliged to treat as affected, people who claimed to be so.
Greensill v Waikato Regional Council W017/95 4 NZPTD 241 – Consultation is a two-way process. It is not intended to mean having deliberations with any party and abandoning the project if those deliberations do not appear fruitful.
D L Newlove Ltd v Northland Regional Council A30/94 (PT) – Material prepared in an application should be proportionate to the potential effects likely to arise.
Worldwide Leisure & Another v Symphony Group & Taupo District Council M1128/94 followed by Greensill v Waikato Regional Council W017/95 4 NZPTD 241 – This decision directs that an applicant for consent in a sensitive area would be very unwise to brush aside extensive consultation.
Wellington Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (Court of Appeal) - Outlines the key elements of consultation. Consultation involves the statement of a proposal not yet finally decided upon, listening to what others have to say, considering their responses and then deciding what will be done.
Te Kura Pukeroa Maori Inc v Tames-Coromandel DC W069/07 - there is no duty to consult (note: Resource Management Amendment Act 2005 inserted ss36A to 36E, codifying this position). If consultation has occurred, this should be mentioned in the assessment of environmental effects.
Refer also to the Ministry for the Environment publication Case law on Tangata Whenua consultation.
Relevant publications
For further publications on consultation with tangata whenua see Consultation with Tangata Whenua.
Consultation for Resource Consent Applicants
Published by Ministry for the Environment - June 2006
A guide on consultation for people applying for a resource consent.
Your Rights as an 'Affected Person'
Published by Ministry for the Environment - June 2006
A guide for people who have been asked to give their written approval to someone else's resource consent application.
Guidelines for Consulting with Tangata Whenua under the RMA: An update on Case Law
Published by Ministry for the Environment - December 2003
Targeted at local authorities and iwi authorities working under the RMA, to assist them in understanding the principles emerging from case law.
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.
Relevant websites
The following are a selection of websites that may be of further assistance and are relevant to this guidance note:
The councils Southland Regional Council, Southland District Council, Invercargill City Council and Gore District Council, in conjunction with iwi, produced information to indicate to prospective resource consent applications the range of Kai Tahu interests in RMA issues. Go to "Consultation Process with Iwi agreed between Southland Regional Council, Invercargill City Council, Southland District Council and Gore District Council and Te Ao Marama Incorporated (Ngai Tahu (Murihiku) Resource Management Consultants)", Application for Resource Consent - Consultation with Iwi.
The Consultation section under the Consents header on the Auckland Regional Council website provides a useful outline of the consultation process. Go to Auckland Regional Council's Consultation.
The website Good Practice Participate helps public servants engage successfully with community, voluntary, iwi and Maori organisations.
The website RMA Link aims to make community participation in all Resource Management Act processes more straightforward and less time-consuming.
Related guidance notes
Current challenges in practice
Difficulties in assisting applicants with identification of parties to be consulted
It is sometimes difficult to advise an applicant of the parties to consult with, prior to the full details of the application being made available. Applicants also need to be advised that a recommendation by a consent authority on parties to consult is not a determination by the Council under S.94 of the Act regarding parties deemed to be adversely affected. Difficulties can also arise in determining the appropriate tangata whenua groups to consult. Regular liaison by consent authorities with Council Maori liaison officers (if they are available) as well as tangata whenua groups can assist. More information on managing contact databases is provided in Consultation with Tangata Whenua.
It can also be difficult for applicants to establish who the owners or occupiers of properties are given that property records can be out of date. In addition, Councils are now more limited under the Privacy Act as to when they can disclose information to applicants about land ownership. Local Government New Zealand have circulated an opinion to local government that this information is able to be disclosed for resource consent consultation purposes (link to opinion). Other agencies such as Land Information New Zealand can be helpful sources for establishing who these parties are.
Applicants reluctant to consult if an application is to be publicly notified
Consultation prior to the lodging of an application can be seen by applicants as simply an exercise to gain the written approval of affected parties. Applicants sometime consider consultation to be unnecessary, especially if a consent authority indicates prior to lodgement of an application that the application will be notified. Consent authorities should remind applicants that consultation is an opportunity to advise potentially affected parties of a proposal, identify any potential environmental, social or cultural effects of their proposal, ‘flush-out’ any issues and consider how these issues may be addressed, prior to lodging the application.
Determining if effective consultation has been undertaken
Sometimes it is difficult for council officers to determine from an Assessment of Environmental Effects whether ‘effective’ consultation has been undertaken. While an applicant is under no obligation to undertake ‘effective’ consultation, consent authorities can provide guidance to applicants as to what is expected from the consultation process. Councils can encourage applicants to submit a range of material to demonstrate the consultation undertaken, including correspondence sent by an applicant, letters of support, comment or concern from parties consulted and minutes of meetings held. It may also be appropriate for an applicant to provide a copy of any documentation and plans supplied to parties consulted, to confirm they had an accurate understanding of the proposed activity. If there is still some doubt, the council officer could contact the parties consulted.
Parties consulted object to a proposal
Sometimes parties that have been approached through the consultation process can advise the Council that they object to the proposal before it is lodged. In such cases council officers should advise that the proposal might change before it is lodged. This may occur as a result of the consultation. Council officers should also advise the party that the Council has certain processing procedures to go through with the application once it is lodged, and that during this they will address whether the application should be notified or whether there are any potentially affected parties.
It is important to make it clear to any objecting party that just because they have been consulted does not necessarily mean that they will be considered an affected party or notified directly of any public or limited notification of the application. In addition, they should be advised that until the application is notified there is no formal ability to object to the proposal. Parties should be advised when the specific application has been lodged. Councils may consider developing a standard letter to respond to objections received before an application is lodged informing of the resource consent procedures and the right to object.
Side agreements and written approvals
Side agreements are a means to resolve issues between applicants and consulted parties. Side agreements are generally confidential between the parties. They are occasionally brought to the attention of the Council if the side agreement includes specific changes to the application, or particular requirements as to how the consent is given effect to.
The Act is silent on the matter of written approvals being provided in exchange for money or some other form of financial gain. In most cases, side agreements result in the consulted party giving their written approval to the application. However, a side agreement is not necessarily a mechanism to mitigate or offset adverse effects of a proposal as a side agreement may address areas of concern that are outside of the Act.
While it is not the Council’s role to get involved in side agreements, prior to the 2003 amendment to the Act, Councils were required to dismiss any adverse effects on persons who had given their written approval to a proposal. Section 94(1) of the 2003 amendment to the Act requires that if an application is processed without notice, the adverse effects of an activity on the environment must be minor, notwithstanding any written approvals that have been obtained. The 2003 Amendment requires the Council to look beyond any written approvals and side agreements and establish the extent of all effects of the proposal.
