Frequently asked questions on limited notification
What is limited notification?
Section 94(1) of the Act relates to limited notification. An application is notified on a limited basis when:
- The consent authority has determined that the application need not be notified in accordance with s93(1) (that is, the application is for a controlled activity, or the adverse environmental effects will be minor); and
- When the applicant has not obtained the written approval of all those persons who are considered to be potentially adversely affected by the proposal.
Notice of the application must then be served on all persons who are considered to be adversely affected. It is therefore very important to correctly identify and justify who are the potentially affected persons.
However, s94D(3) then provides that controlled and restricted discretionary activity rules in Plans can specify that notice does not need to be served on affected parties, and applications can be processed on a non-notified basis.
Currently, existing plans do not have such provisions. A number of councils are therefore in the process of preparing plan changes to address this matter. This is discussed in more detail below.
What is service?
Once an application has been received, and a determination made that limited notification is required, councils must notify all adversely affected parties that the application has been received and that they are considered to be potentially adversely affected. The 'notice' should state that they have the right to lodge a submission in support or opposition to the proposal, and also appear at a hearing (if a submission is made). This can be done by way of a letter, accompanied by a copy of the application (or information on where a copy of the application can be viewed). Some councils also include a submission form and a list of other parties served with the notice.
This notice must be served on all adversely affected parties, regardless of whether they have previously provided their written approval for the proposal. This means that if 5 persons are considered adversely affected, but only 4 have provided their written approval, all 5 persons would still be served with a notice of the application.
What are the timeframes for processing 'limited notification' applications?
As with a publicly notified application, a submitter has 20 working days from the date of service of the notice to make a submission. A consent authority then has 25 working days in which to commence a hearing. The decision on the hearing must be released within 15 working days after the hearing.
However, if a hearing is not held, (as provided under s100) then notice of the decision must be given no less than 20 working days after the close of submissions.
What happens if you receive a submission from someone who was not served with a notice?
When an application is notified on a limited basis, notice is served on all those persons that the council considers may be adversely affected by the proposal. This determination should follow from a thorough assessment of the effects of the proposal. This is no different to making a determination that an application is to be processed on a non-notified basis.
On occasion, a person may make a 'submission' who has not been identified as a potentially adversely affected person. You should acknowledge the person's submission in writing, explain why they are deemed not to be an adversely affected person and that their submission is not valid. This should also be set out in the officer report.
This will ensure that the decision maker(s) have all available information before them at the time they make a decision (see Videbeck vs Auckland City Council).
What are the benefits of limited notification?
Prior to this amendment coming into force on 1 August 2003, consent authorities were required to notify applications where one or more adversely affected person(s) had not given their written approval. The full public notification process allows any member of the public, regardless of whether they are affected or not, to submit in support or opposition to a proposal. If the decision is appealed, the submitter also has standing in the Environment Court.
The limited notification (LN) process is likely to result in reduced costs and streamline the consent process by:
- Not requiring a notice in the paper and on the site
- Resulting in less complex and comprehensive applications and planner reports
- Reducing administrative costs associated with not having to prepare public notices and signs, and having to process submissions
- Only allowing affected parties the opportunity for further involvement in the resource consent process.
If a hearing is required then it is likely that the time taken to issue a decision will be similar to a notified application. Decisions on whether to conduct hearings or not will depend on each council's delegations.
Other savings could be made in the way:
- Councils decide to undertake hearings
- The number of councillors used to determine the application
- The length of time required to hold the hearing
- Reduced possibility of appeals to the Environment Court.
Has there been any relevant case law on limited notification?
In 2003, the Environment Court issued a decision on a declaration sought by Wellington City Council (W70/2003) on whether existing non-notification statements in plans can be extended to include exemptions on service of resource consent applications to adversely affected persons.
Section 94D(3) provides that notice of an application for a resource consent for a controlled or restricted discretionary activity need not be served on adversely affected persons if a rule in a plan expressly provides so. WCC sought a declaration that the wording of their existing non-notification provisions in their district plan met this section of the RMA.
Judge Thompson ruled that notification and service are distinct concepts, and that notification was not inclusive of service. That is, that even if the plan provided that the activities would not be notified or did not need the written approval of affected persons, this did not mean that service of notice was not required on affected persons (limited notification).
The Court also declined to grant an order sought by WCC to amend the plan under section 292. Judge Thompson commented that the issue of restricting service is one of fundamental policy and should be addressed by way of a plan change.
This declaration does not mean that Councils have to undertake plan changes to address this issue. Plans can continue to remain silent on this issue. However, if councils want to have rules that state that service is not required for certain activities, then a plan change would need to be initiated.
Wellington City Council has since prepared a plan change in order to address the issue (PC 28). The plan change is currently under appeal. Auckland City Council has made operative a plan change (PDF 13.2KB) to give effect to the decision. Similar plan changes are also being considered by other councils around the country.
Please note: This FAQ sheet is not intended to be read as legal advice, but to give background to the general intention of the legislation. The courts remain the final arbiter of what the legislation actually means.
Comments or concerns about limited notification
We would welcome any feedback from council and private practitioners and applicants (both positive and negative) about your experience with the limited notification process. These comments can be sent to admin@qualityplanning.org.nz.
