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Consultation for resource consents

Abstract

Section 36A of the Resource Management Act 1991 (RMA) states that neither an applicant nor a local authority has a duty to consult any person on resource consent applications. Nevertheless, there are times where it is both necessary and good practice to consult.

This guidance note:

For more detailed relevant information see also the Facilitating consultation with tangata whenua   and the Consultation for Plan Development guidance notes.

Guidance note

This guidance note provides an introduction to consultation for resource consents and provides guidance on the following questions:

In this guidance note, the term tangata whenua is used when referring to consultation with Maori groups with mana whenua over particular areas. Unless otherwise specified, this should be read as being inclusive of consultation with any group that represents tangata whenua interests, be they iwi , hapu , whanau , or iwi authorities .

Introduction to consultation for resource consents

There is no duty for applicants and councils to undertake consultation for resource consent applications under s36A of the RMA. Whether to undertake consultation, and the extent and nature of consultation, is therefore up to the applicant. However, consultation is often required to provide a full assessment of environment effects (AEE) that must accompany a resource consent application. Schedule 4 of the RMA (Clause 1(h)) requires that an AEE should include an identification of the persons affected by the proposal, the consultation undertaken, if any, and any response to the views of any person consulted.

Consultation generally occurs with people who may be adversely affected by, or have a specific interest in, a resource consent application, and is essentially a process about:

  1. providing enough information to an interested or affected party to enable them to understand a proposed activity
  2. discussing the resource consent application with them
  3. receiving any comments they might have on the proposal and, where appropriate, amending the proposal to be more acceptable to the consulted parties
  4. gaining all the necessary information to provide a thorough and complete application.

When consultation occurs, it should be made clear that the primary objective is a genuine exchange of information and points of view between applicants and people affected or interested in a proposal. It should also be clear that consultation is different to obtaining written approvals from affected parties as part of the notification/non-notification process, though that may be an outcome of the process following consultation in processing an application.

To find out more about written approvals from affected parties, determining if a person is an affect person, and decisions on notification, see To notify or not to notify.

Although there is no statutory duty to consult on resource consents, consultation can provide many benefits, including:

What are the underlying principles of consultation?

The Environment Court has developed a statement of principles for consultation synthesised from a number of decisions. These principles have been primarily developed through case law relating to resource consents and notices of requirement, and should be understood before embarking on any consultation. See the Case law section for more information on these principles and relevant cases.

In addition, it is important to understand where consultation sits in terms of the different levels of public participation; and what levels of public input are appropriate for the given context. The International Association for Public Participation Australasia (IAP2) provides guidance on the spectrum of public participation and where consultation sits within this.

Councils will also have to consider how consultation principles under the Local Government Act 2002 are appropriately addressed in undertaking consultation on resource consent matters. See Understanding the principles of consultation in Consultation for plan development and Relationship between the Local Government Act and the RMA for further information.

Why should an applicant consult?

People are generally more comfortable with a development if they have had an opportunity to be informed about a future change, and could provide feedback on the proposal, in advance of bulldozers arriving on the site. In some instances, the affected parties may be future neighbours so it is worth an applicant taking the time to consult with existing residents.

Consultation may help identify alternatives if done early; this is particularly important for large proposals. Early consultation can lead to the development of a better, more complete resource consent application: with fewer adverse effects ,or a more comprehensive set of remediation or mitigation measures. Consultation may also facilitate a good relationship with affected or interested parties; it is therefore less likely to lead to entrenched positions and may increase the flexibility in the final decision.

Applicants may be reluctant to consult because they may not wish to 'alert' neighbours or affected parties to the proposal. Often applicants will only discuss a proposal with neighbours if the council has indicated that written approvals will be required, otherwise the application will be notified. This can occasionally lead to tensions which might have been avoided through earlier consultation.

Applicants should be advised that consultation during the development of the proposal may help address and resolve concerns for the applicant, neighbours and affected parties. See To notify or not to notify? - That is the question for further information on affected parties and notification decisions. The use of side agreements to resolve concerns of affected parties is covered later in the guidance note.

Note that any discussion that takes place between an applicant and another party after the application is lodged with the council, cannot be deemed 'consultation' for the purposes of the assessment of environmental effects. Refer to Ngati Hokopu ki Hokowhitu v Whakatane District Council [2002] C168/02.

Obviously the need for, and benefits of, early consultation also apply where councils are the applicant.

Who to consult and the role of councils?

Depending on the nature, scale and location of the proposed activity, there are a number of parties that an applicant or the council might consult. This includes local residents, councils, tangata whenua, community groups, government agencies and non-government organisations. While focused on those parties who should be served notice of a notified application, s10 of the Resource Management (Forms, Fees and Procedures) Regulations 2003 provides guidance on some of the parties with whom it may be appropriate to consult.

Councils should consider developing a standard contact list of statutory agencies, utility bodies, tangata whenua groups etc that may be appropriate to consult with; this could be included as part of an application pack, or in brochures about consultation. Such lists could be particular to localities within the district or region. For example, Environment Canterbury's website includes a list of groups that should be consulted and Queenstown Lakes District Council has a brochure on consultation which includes a list of people who should be consulted. However, these lists can go out of date quickly due to changes within organisations and the creation of new agencies. Councils therefore need to ensure these lists and publications are regularly updated to avoid inaccuracies.

Councils should provide guidance to applicants on the appropriate tangata whenua group to consult using their records of iwi and hapu within its region or district as required by section 35A of the RMA. These records should include:

For example, Taranaki Regional Council includes a map derived from Te Kahui Mangai on its website, which sets out boundaries of areas of interest to iwi authorities and includes contact details. Rodney District Council's website includes a list of tangata whenua groups in the district and a relevant memorandum of understanding.

What should an applicant do when consulting?

An applicant should:

In line with the principles of consultation, an applicant should provide sufficient information and time for the consulted party to:

An early approach to consultation by applicants is consistent with the established principles of consultation in that it:

Consultation may also be an ongoing process, especially for large projects. This may allow the proposal to be progressively modified to produce a project with better environmental outcomes that is more acceptable to the community.

What is the council's involvement in consultation before notification?

Councils play an important role in advising, facilitating and, in some cases, initiating consultation for resource consent applications.

Before lodgement of an application, councils should:

Examples of council RMA documents that provide guidance on consultation are:

Councils can also direct applicants to An Everyday Guide to the RMA - Consultation for Resource Consent Applicants which provides general information for applicants on how to consult, and on the benefits of consultation.

Parties consulted object to a proposal

Sometimes parties that have been approached through the consultation process may advise the council that they object to the proposal before it is lodged. In such instances, council officers should advise these parties that the proposal might change before it is lodged - potentially as a result of the consultation - and that they should also be raising their concerns directly with the applicant. 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 period, they will address whether the application should be notified or whether there are any potentially affected parties.

It is important to make it clear that, just because they have been consulted, they will not necessarily be considered an affected party; or notified directly if the application is publicly or limited notified. 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.

However, any issues raised with council before an application is submitted must be adequately included and considered in the officer 's report. This will help ensure that a balanced and informed decision is made by the decision-maker - refer to the Videbeck v Auckland City Council.

What is the Council's involvement in consultation after lodging an application?

Following lodgement of an application, councils should examine the consultation that has been undertaken and described in the assessment of environment effects (AEE). This should include checking:

Where it is considered that consultation is not adequate, council should either encourage the applicant to undertake consultation, or undertake consultation itself. This may involve contacting neighbours or affected parties directly, explaining the proposal and procedural matters. It may also involve contacting the relevant tangata whenua group and asking them to prepare a cultural impact assessment. See Facilitating consultation with tangata whenua and Frequently asked questions about cultural impact assessments for further guidance.

Why consult with tangata whenua on resource consents?

Section 36A of the RMA specifically states that there is no duty to consult any person, including tangata whenua, about resource consent applications. However, the tangata whenua interests recognised in ss6(e), 6(f), 6(g) ,7(a) and 8 of the RMA are required to be considered when making decisions on resource consent applications. These interests can be more readily identified and addressed in applications through consultation with tangata whenua. The duty of early consultation with tangata whenua has also been identified by the Court of Appeal as one of the principles of the Treaty of Waitangi.

It is best practice for applicants to undertake consultation with tangata whenua when developing proposals that are within an area of interest to tangata whenua, or involve resources of particular interest to tangata whenua. Councils can assist this process by identifying the relevant iwi authorities, the areas in which they may be interested, and the issues that tangata whenua are generally concerned about.

Where councils have identified that tangata whenua may be affected by a proposal, applicants should be encouraged to consult with tangata whenua at the earliest possible stage in the development of their proposals. This is particularly important when the proposal will clearly affect a known wahi tapu, or sites or species of importance to tangata whenua. Early consultation is also far more likely to be appreciated by the tangata whenua concerned.

Larger organisations who lodge consents regularly may have established their own agreements with particular iwi or hapu on how they will consult; they will be well aware of consultation expectations. Telecom NZ, Transit NZ, Meridian Energy and Carter Holt Harvey are examples of such organisations.

Tangata whenua groups may be interested in a proposal for a number of different reasons, including their historical association with a particular area; and/or quite differently, as neighbours or landowners. Individuals within tangata whenua groups may also be interested in an application as general members of the public. This means it is important to make it clear from the outset why consultation is being undertaken and how the tangata whenua groups consulted may be affected.

Tangata whenua groups may also have different ways in which they would like to be consulted or engaged. For example, such tangata whenua groups have specific resource management advisors who are authorised to speak on their behalf on some issues but must go back to the iwi or hapu on others. Some tangata whenua groups may also expect payment for their time spent in consultation exercises. See Facilitating consultation with tangata whenua for more information.

What sorts of issues are tangata whenua generally concerned about?

The primary council duty is to keep and maintain records under s35A on which iwi and hapu to consult; the Minister may require this information to be provided within timeframes specified in regulations. However, councils should also have a good understanding of tangata whenua values in the area and the types of activities that could adversely affect these values. Specific lists of activities should be created for each iwi authority, hapu, and/or whanau and can be used as a general guide to provide advice on when consultation with tangata whenua may be warranted. When in doubt, they should be asked if they are concerned or interested in the proposal and would like to be consulted.

It is generally not the activities themselves that are of particular concern to tangata whenua, but how certain activities have potential to impact on things that are valued by tangata whenua. For example, both water and the coastal environment are highly valued by tangata whenua. Consultation with tangata whenua for discharge applications to water may often be warranted, particularly where it involves the discharge of treated sewage into coastal water or rivers.

Iwi management plans, other iwi planning documents, and cultural impact assessments undertaken for other resource consent applications can assist with the identification of the types of activities of interest to tangata whenua. See the Frequently asked questions on iwi management plans and Frequently asked questions about cultural impact assessments for more information.

When should councils consult with tangata whenua on resource consents?

While the primary responsibility for consulting with tangata whenua should rest with an applicant, councils should also take a proactive role in facilitating consultation with tangata whenua under the RMA. This is due to the need for councils to develop long-term working relationship with tangata whenua for resource management purposes and to fulfil their role in providing good, robust advice to applicants on resource consent matters. It is important this consultation is done in accordance with any policies and/or protocols councils may have developed with tangata whenua within their region or district. See Facilitating consultation with tangata whenua for further details on relationship / operational agreements, treaty settlement conditions, and consultation policies.

Councils may wish to consult directly with tangata whenua when:

The Council's role may range from contacting the tangata whenua concerned to verifying the record of consultation provided by the applicant. In the case of some significant proposals, councils may effectively take control of the consultation process: this may include arrangements for hui, attendance by applicants, commissioning cultural impact assessments, and seeking expert advice from tangata whenua groups. Where council takes a lead in consulting directly with tangata whenua, there is a need to ensure correct protocol. This often includes:

Councils should not view consultation as a one-off process for application but aim to build working relationships with tangata whenua. This may involve putting in place policies, processes, and channels that facilitate:

For more information see 'Council roles in facilitating good relationships with tangata whenua ' and 'Good and effective working relationships between tangata whenua and council ' in the Facilitating consultation with tangata whenua  guidance note.

When should councils forward applications to tangata whenua for comment?

Many councils have arrangements with tangata whenua to send them copies of all or some of newly lodged applications for resource consent and/or summarised lists of applications received. These arrangements are primarily used to identify whether the tangata whenua group have any interest and/or concerns about the application(s), and whether they want to see a full copy of an application (where a list is used). Statutory acknowledgements may also require that councils forward summaries of all applications to a particular tangata whenua group.

It is important that you: check if the council you are dealing with has such an arrangement; and get sufficient information to assist the applicant in understanding what this may mean. For example, will someone from the tangata whenua group make contact? Or is that the responsibility of the council? Will there be a bill for such input? Councils can choose to mail or email lists of applications, or arrange for a tangata whenua representative to review the applications at a specially convened meeting. The agreed process should be efficient, effective and well understood by both tangata whenua and council.

Arrangements for distribution and review can form the basis of operational agreements between councils and tangata whenua. These agreements can provide an effective 'safety-net ', ensuring that tangata whenua are given the opportunity to have input into the resource consent process where:

How should councils communicate with affected, interested and consulted parties?

People who have been consulted by applicants may contact the council for advice on the consent process, and to determine what their rights are. Potentially affected or interested parties may also contact the council to express their concern or interest about a proposal, before or during the consent process. In these situations, the council should:

In some circumstances, council officers may also be required to:

Many councils use a standard letter to respond to interested and consulted parties. This letter should cover a number of matters, including informing the parties about consent procedures and their rights. Councils can also make use of existing sources of information such as booklets in the Everyday Guide to the RMA series.

Many councils now have public notices for notified resource consent applications on their websites, and some now include a list of all consents that have been received by the council. Refer to the Wellington City Council and Queenstown Lakes District Council best practice examples.

Council officers should take care when communicating with interested, consulted or affected parties. Every effort should be made to confine discussions to matters of fact and process considerations. Council staff should avoid giving any opinion on the merits of an application.

What are effective forms of consultation?

The key message to give to applicants considering undertaking consultation is that they should:

The actual form of consultation undertaken by an applicant will largely depend on what the proposal entails, its complexity and scale of environmental effects, and the relationship with the parties to be consulted. Therefore the form and extent of consultation undertaken needs to be decided on a case-by-case basis.

Examples of consultation methods are:

Councils should not be concerned about the way in which an applicant has consulted, but rather whether the consultation has been effective. The focus should be on the outcome of any consultation; and on how the applicant has addressed the concerns or issues that have been raised in the application (see Wellington Airport Ltd v Air New Zealand [1993] 1 NZLR 671 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).

How to assess the effectiveness of the consultation

Councils need to determine whether the assessment of environment effects addresses all the relevant effects and meets the requirements of s88 of the RMA. In some situations it is only through consultation that a full assessment of effects can be provided that address all the relevant issues and concerns. This is particularly likely where there are matters of significance to tangata whenua or community groups, or when the activity is large-scale with significant effects.

Assessing the effectiveness of undertaken consultation will depend on the nature of the application and the effect it has generated. These factors will vary: a large-scale activity with widespread effects would normally involve an applicant undertaking extensive consultation over a period of months, using a range of different methods. For a small-scale activity where the effects are contained and/or minor, consultation may be limited to the surrounding residents or a single neighbour. An AEE should cover all or some of the following points, to the level of detail that is appropriate to the proposed activity:

Councils should consider developing internal checklists or policies to determine whether consultation has been effective and this may be incorporated into a plan. For example, Policies 1.2.4.9 and 1.2.4.10 of the Environment Waikato Regional Plan provide a checklist that decision-makers can use to determine whether the consultation undertaken for a resource consent application has been effective.

The record of consultation provided by applicants will assist council to determine how the application has been developed, and particularly, how the local community and interested parties have been involved in developing and shaping the proposal. This record can assist in assessing who may be adversely affected by the application once it is lodged.

Where it is somewhat uncertain whether the details of the consultation are accurate, the council officer may consider calling the parties concerned to confirm the detail of their responses to the applicant. However, this needs to be managed carefully in a manner that does not compromise the neutral role of the council officer.

Best practice

Environment Canterbury provides on its website a list of groups which an applicant should consider consulting, when preparing a resource consent application. This website also provides guidance on the key steps for consultation for resource consent applications.

Queenstown Lakes District Council has produced a brochure entitled 'A Guide to Resource Management Act Consultation in the Queenstown Lakes District '. The brochure includes guidance on who an applicant should consider consulting with in preparing their application and useful guidance on:

Taranaki Regional Council's website includes maps of iwi boundaries with accompanying contact information. These maps provide certainty on tangata whenua areas of interest and are based on Te Kahui Mangai (a website administered by Te Puni Kokiri to meet the Crown 's responsibility under s35A of the RMA).

Rodney District Council's website includes a contact list for tangata whenua groups in the district, including all memoranda of understanding that are in place with tangata whenua groups.

Policies 1.2.4.9 and 1.2.4.10 of the Environment Waikato Regional Plan provide a checklist for decision-makers, to determine whether the consultation undertaken for a resource consent application has been effective. This checklist also provides a good guide to applicants in preparing for, undertaking and reporting on consultation in their AEE.

Thames Coromandel District Council, New Plymouth District Council and Otago Regional Council all provide online guidance to resource consent applicants on the benefits of consultation when preparing resource consent applications. The web pages include guidance on why, how and who to consult.

Kapiti Coast District Council has produced a series of fact sheets on RMA processes, including one dedicated to consultation for resource consent applications. This fact sheet provides good guidance on consulting with iwi, and how applicants should record such consultation in their AEE.

Both Wellington City Council and Queenstown Lakes District Council's websites maintain lists of all resource consent applications that have been lodged with the council and are being processed.

RMA Provisions

Relevant provisions relating to consultation on resource consents are outlined below and can be viewed through the following link.

Section 6: Matters of national importance
Section 6 (e): The relationship of Maori and their culture and traditions with
their ancestral lands, water, sites, wahi tapu, and other taonga
Section 6(f):   The protection of historic heritage from inappropriate subdivision, use, and development
Section 7: Other matters
Section 7(a): Kaitiakitanga
Section 8: Principles of the Treaty of Waitangi
Section 35A: Duty to keep records about iwi and hapu
Section 36A: No duty under this Act to consult about resource consent applications and notices of requirement
Section 88: Making an application
Section 95E: Forming opinions as to who may be adversely affected
Schedule 4 Assessment of Effects on the Environment

Forms and Checklists

Resource consent application form (DOC 116 KB)
Quality Planning Website - Date: June 2004

Checklist for applicants (DOC 40 KB)
Quality Planning Website - Date: June 2004

 Case law

The following cases are in chronological order and contain discussion on resource consent consultation matters. Note that these cases predate the RMAA 2009 which changed notification provisions for resource consents. For more information, see the guidance note To notify or not to notify? - That is the question!  

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.

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.

Worldwide Leisure and Another v Symphony Group and 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.

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. The RMA has been subsequently amended to reinforce the High Court 's finding.

Videbeck v Auckland City Council [2003] NZRMA 113 (HC, 27 September 2002). The High Court held that the decision not to notify an application was made without regard to all relevant considerations. The council officer report should record the fact of relevant concerns raised by other parties; otherwise it may be determined that the officer 's report is unbalanced and fails to provide all relevant information, which could make the decision relying on that report invalid. [This case is included to illustrate the need for the decision-maker to be informed. Under RMAA 2009 there is no longer a presumption that applications should be notified and insufficient information is now more appropriately addressed through ss95C, 104(6) and 104(7)].

Ngati Hokopu ki Hokowhitu v Whakatane District Council C168/02, 8 NZED 252. The Court held that consultation must necessarily take place before an application is lodged. Any discussion between the applicant and other persons that takes place after a resource consent has been lodged is not 'consultation ' for the purpose of the Assessment of Environmental Effects.

Benjiman Te Piara v Gisborne District Council W93/2004. The Court held that consultation is not an end or an obligation in itself, rather that it is one possible method of gathering views from those affected so that they can be taken account of in the decision-making process.
Horahora Marae and Others v The Minister of Corrections (A085/2004). While this case relates to a Notice of Requirement for a new prison, it contains significant guidance for those undertaking consultation, providing a series of relative principles underlying consultation (and not just with tangata whenua).

Paihia and District Citizens Association and Others v Far North District Council (A52/2006). The Environment Court held that while consultation by an applicant for consent is not a mandatory requirement of the Act, the process is encouraged by the Act: primarily in pursuit of adequate and accurate information about effects on the environment, and other aspects of the purpose and principles of the Act. The Court held that one possible consequence of inadequate consultation by an applicant might be that the Court might be forced to require that further information be obtained, if necessary adjourning a hearing for the purpose. This equally applies to local authority decision-makers. The Court was also critical of the Council's practices on consultation.

Kawhia Harbour Protection Society Inc and Others v Otorohanga District Council CIV 2006 419 1089. The Court stated surprise that the council had accepted an assertion at face value that an applicant was unaware of any concerns that local Maori may have in respect of the property, when the council was already aware through correspondence and communication with Maori that they did have concerns. The Court was particularly critical of the lack of consultation, given that the plan promotes consultation with iwi.

Refer also to the Ministry for the Environment publication 'Case Law on Tangata Whenua Consultation '.

Relevant publications

Consultation for Resource Consent Applicants and Your Rights as an Affected Person
Date: June 2006
Author: Ministry for the Environment

These pamphlets are two in a series of everyday guides to the RMA. Council staff can make these available to applicants and other parties that seek advice on the resource consent process.

Kiwi Co-operative Dairies Limited - Ocean Outfall & Transit New Zealand Ruby Bay Bypass-Case Studies in Consultation under the RMA
Date: June 2005

This is a case study of resource consent consultation between:
Tasman District Council, Transit NZ and Ngati Rarua and Ngati Tama Iwi Authorities; and Taranaki Regional Council, Kiwi Co-operatives Dairies Limited and Ngati Ruanui Iwi Authority.

Best Practice Consultation on High-Profile Projects
Date: December 2004
Author: Teresa Walsh (Planning Quarterly)

This article describes the consultation process that was used for a high-profile transport corridor project.

Guidelines for Consulting with Tangata Whenua under the RMA: An Update on Case Law
Date: December 2003
Author: Ministry for the Environment

This 2003 paper builds on an earlier RMA working paper published in June 1995. It is targeted primarily at local authorities and iwi authorities working under the RMA, and aims to assist them in understanding the principles emerging from case law. Note that this paper has not been updated since 2003 and therefore does not reflect subsequent amendments to the RMA.

Talking Constructively: Guide for Iwi, Hapu, Whanau on Building Agreements with Local Authorities
Date: January 2000
Author: Ministry for the Environment

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.

For further publications on consultation with tangata whenua see Facilitating Consultation with Tangata Whenua.

Relevant websites

The following selection of relevant websites may be of further assistance:

Good Practice Participate
www.rma.govt.nz
RMA Link
Environmental Defence Society
IAP2 International Association for Public Participation Australasia

Related guidance notes

Current challenges in practice

Difficulties in assisting applicants to identify parties to consult

It can be difficult to advise an applicant of the parties to consult with, particularly when the full details of the application are not available. If a council is giving advice on who should be consulted, be clear that such advice is not a determination under s95E of the RMA on who may be adversely affected.

Difficulties can also arise in determining the appropriate tangata whenua groups to consult. Applicants may find it difficult 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 1993 as to what information they can disclose and when they can disclose it to applicants about land ownership. There are differing practices nationally about disclosing the names of parties to be consulted to applicants. 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 before the lodging of an application can be perceived as an exercise to gain the written approval of affected parties. Applicants sometimes consider consultation to be unnecessary, especially if a council indicates before lodgement of an application that the application will be notified.

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. In most cases, side agreements result in the consulted party giving their written approval to the application. They may or may not involve the exchange of money. Side agreements 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 RMA is silent on the matter of written approvals being provided in exchange for money or some other form of financial gain. However, a side agreement is not necessarily a mechanism to mitigate or offset adverse effects of a proposal: a side agreement may address areas of concern that are outside of the RMA. There may still be adverse effects on the party that has given its written approval.

While it is not the Council's role to get involved in side agreements, ss95A and 95D of the RMA require council to notify the application if it decides the adverse effects may be more than minor, while disregarding the effects on persons who have given written approvals. Determining whether adverse effects may be more than minor requires a council to look beyond any written approvals and possible side agreements; it must establish the extent of the effects of the proposal on the wider environment beyond the adjacent land.

Acknowledgements

This guidance note was prepared by Gina Sweetman of Sweetman Planning Services in 2008 and reviewed by Robert Schofield of Boffa Miskell and Hamish McGillivray of Ministry for the Environment in July 2009.

This revised note builds on earlier work by Karen Bell of Enviro Solutions New Zealand Limited, Tania Richmond from Richmond Planning Limited and updated to reflect RMAA 2009 by Jerome Wyeth of Hill Young Cooper Ltd in October 2009.