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Notified and limited notified resource consent applications

Abstract

There are two types of notified resource consent applications:

  1. publicly notified - allows any person to lodge a submission in support and/or opposition, or to indicate a neutral position with respect to an application
  2. limited notified - notice of the application is served on all affected persons, allowing only those persons identified as affected to lodge a submission. However those persons who are identified as affected and have provided their written approval to the application, do not need to be served notice, and can not lodge a submission.

Any party who is a trade competitor is not able to make a submission on trade grounds (as outlined in s308B). Refer to the Trade competition fact sheet on the Ministry's website for more information.

Section 2AA of the RMA provides definitions relating to both public and limited notification.

This note provides guidance on the notification processes, submissions, pre-hearing meetings, mediation, writing a report for a notified or limited notified application hearing, and hearings.

This guidance note should be read in conjunction with the To notify or not to notify? That is the question! guidance note.

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Guidance note

The process of notification

Who is notified?

When an application is publicly or limited notified under s95A, s95B or s95C of the Resource Management Act 1991 (RMA), the council must notify prescribed persons of the application. This applies to the following types of applications:

The prescribed persons are noted in Regulation 10 of the Resource Management (Forms, Fees, and Procedure) Regulations 2003. This regulation states that the persons to be served with notice include:

For limited notified applications (s95B), the council need only serve notice on those persons identified by the council as being adversely affected under s95E. For example, for a garage proposed within the required setback along one side of a property boundary, only the adjoining land owner/occupier might be served limited notification and have the ability to lodge a submission.

Those persons who are considered to be adversely affected but have provided their written approval to the application do not need to be served with notice of the application. Furthermore, persons who have given written approval can not lodge a submission.

For more information on limited notification, see Frequently asked questions on limited notification.

What to send to parties that are notified directly

When notifying any persons adversely affected by an application, the notice must contain sufficient information to enable them to understand the general nature of the application and whether it will affect them, without requiring any reference to other information.

There are no prescribed forms for service of notice. Generally, the higher the standard of the information supplied in the notice, the less time council officers will need to spend answering questions about the application and forwarding information to people (see Queenspark Residents Association Inc. v Christchurch City Council C144/2001).

If the application is relatively short then it may be appropriate to send a copy of the entire application to those people who are required to be notified. For larger applications you may wish to send only a copy of the application form and a site location plan indicating what is proposed and exactly where. Always ensure you have all the necessary information to understand and assess the application before it is notified. Refer to Requesting further information for guidance on when and how to request further information.

The public notice

A fully notified resource consent application must be publicly notified. This can be done by publishing a notice in a newspaper, which circulates within the entire area likely to be affected by the proposal to which the notice relates. In addition to the notice in the newspaper, the council may also place the public notice on an internet site which has free public access ie, the relevant council website. Refer to s2 of the RMA for the definition of public notice.

The public notice must be in the prescribed form - Form 12 of the Resource Management (Forms, Fees, and Procedure) Regulations 2003 (MS Word 32 KB) - and include:

There are a variety of ways to present this information in a notice; it is important to keep in mind that the audience is the general public who may not be familiar with the jargon and technicalities of the RMA.

To improve the 'user-friendliness ' of the public notice, and to help the public interpret and understand it, it is recommended the notice include:

Regulation 10A of the Resource Management (Forms, Fees and Procedure) Regulations 2003 provides the council with the discretion to require a notice to be affixed in a conspicuous place within the site or adjacent to the site to which the application relates. It is good practice to erect a sign displaying the public notice, especially if the proposed activity takes place in an area with widespread effects or will affect people who are not directly notified.

Informing the applicant their application has been notified

If an application is to be notified on either a public or limited notified basis, the application must be notified within 10 working days of the date the application is first lodged (s95).

It is good practice to advise the applicant in advance of the intention to notify the application (unless the applicant requests public notification or the application was lodged on a notified basis) to provide them with an opportunity to modify the proposal or withdraw the application to avoid notification. Any additional processing fees that are required should be obtained at this time.

Advising the applicant about the notification consequences under s95C is also important. Section 95C requires the council to publicly notify a resource consent application if the applicant does not provide further information under ss92(1) and 92(2)(b) before the deadline or refuses to provide the information. Further explanation of s95C can be found in the guidance notes To notify or not to notify? That is the question! and Requesting further information.

If notification is to proceed, the applicant should be informed of this in writing. The following should be communicated to the applicant:

Any pamphlets the council has on notification should be included with the letter, to help the applicant better understand the process.

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The process for making submissions

Sections 96(1) and 96(2) of the RMA provide for any person to make a submission to a council on an application for a resource consent that is publicly notified in accordance with ss95A or 95C, unless they are a trade competitor and are submitting on trade competition grounds (as outlined in s308B).  

If an application is limited notified in accordance with s95B, only those persons who were served with notice of the application may make a submission under s96(3) and 96(4), unless they are a trade competitor and are submitting on trade competition grounds (as outlined in s308B).

A submission can be in support of or in opposition to the application, or neutral in its stance.

The submission may be written or electronic and must be in the prescribed form, Form 13 (MS Word 37 KB). Form 13 includes the following information:

The following basic submission form template incorporates the above requirements and some good practice elements to assist the submitter in participating more effectively.

Councils may also consider including the provision for submitters to request the appointment of independent commissioners to hear and decide on the application (s100A). However, it should be made clear that submitters will be liable for costs.

The submitter must serve a copy of the submission on the applicant as soon as practicable after serving the submission on the council (s96(6)(b)).

The closing date for making submissions must be specified in the public notice. Section 97 of the RMA prescribes that submissions will close on the 20th working day after public or limited notification of the application. This period may only be extended by using s37 and s37A if there are special circumstances, or the applicant agrees.

Common problems with submissions

Below are common problems experienced with submissions and some suggested solutions.

Problem

Solution

Late submission

Sections 37 and 37A(1) and (2) of the RMA allow a council to accept late submissions. If a council does so, it must be careful to adopt a consistent approach to ensure that applicants and submitters are not disadvantaged or advantaged in any way. A set of criteria could be developed to assist with determining whether a late submission is able to be accepted or not; however, they still need to be addressed on a case-by-case basis. An extension can be no more than twice the maximum time period specified in the RMA (eg, 40 working days in case of a submission period), unless the applicant or requiring authority requests or agrees.

Incomplete information in the submission. For example, the submitter has not provided:

  • address for service
  • any reasons
  • any conditions or decision sought

It is very important that submitters understand the importance of fully completing their submission. This can be helped by developing clear, user-friendly submission forms and supporting information.

It is good practice to review submissions as they are received; where a submission is incomplete, contact the submitter to explain why it is thought to be incomplete and invite the submitter to complete it.

If the missing information is not provided (particularly important if relating to reasons, decision sought and conditions), submitters need to understand that their submission may not be fully understood or may be disallowed.

Submitter has not indicated if they want to be heard or not

It is good practice for a council officer to phone submitters and clarify whether or not they want to be heard. They need to understand that by not ticking the "I wish to be heard" box, they will not be notified of the date, time and place of any hearing (s101(3)(b)), nor will they be able to participate in a hearing.

Conversely, if submitters initially indicate they wish to be heard and then decide to forfeit this right, it is recommended that the withdrawal be received in writing and that these submitters be informed of the implications as stated above.

Submission has not been served on the applicant

It is good practice for a council officer to phone submitters and advise they are required to serve a copy of their submission on the applicant (according to s96(6)(b) of the RMA). The council may choose to send copies to the applicant itself.

Receipt of submissions

When all submissions are received, it is good practice to:

Receiving submissions electronically (such as by e-mail or through a council website) can save time for RMA practitioners by:

Submissions lodged electronically do not require a signature.

Submissions and trade competition

Part 11A of the RMA makes it clear that the RMA is not to be used by trade competitors to oppose applications on trade competition grounds. A trade competitor can only submit on an application if they are directly affected by the adverse environmental effects of the application. If a trade competitor is considered to be adversely affected by the application, their submission must only relate to the effects on them and can not consider trade competition or the effects of trade competition.

For more information on submissions and trade competition refer to the Trade competition fact sheet on the Ministry's website.

Advising the applicant

A council must provide the applicant with a list of all submissions received as soon as reasonably practicable after the close of submissions (s98). See Example: List of submitters ' letter (MS Word 25 KB).

The RMA requires all submitters to serve a copy of their submission on the applicant. As this does not always happen, the council list ensures the applicant is aware of all of the submissions.

Withdrawal of submission or request to be heard

There is no specific section of the RMA that deals with the withdrawal of a submission or the request to be heard. However, for any withdrawal, it is good practice to require the submitter to do so in writing.

Where submitters choose to withdraw a submission or the right to be heard, it is also good practice to clarify their legal status relating to the application. A submitter who no longer wishes to be heard will retain the right to appeal any decision made by the council. However if the submission is withdrawn, the submitter loses the right to appeal.

Taranaki Regional Council's website has a good example of a standard form submitters can complete, should they wish to withdraw their request to be heard at the hearing or withdraw their submission entirely. The form also explains the legal implications of withdrawal. See Taranaki Regional Council's Withdrawal of request to be heard or withdrawal of submission form.

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Pre-hearing meetings

The purpose of a pre-hearing meeting is to clarify or facilitate resolution of any matter or issue associated with an application for resource consent (s99(2)(b)).

A council may hold a pre-hearing meeting at the request of the applicant or a submitter, or on its own initiative. The following may be invited, or be required, by council to attend the meeting: the applicant; some or all of those persons who have made a submission; or any other persons considered appropriate.

The applicant's consent is required before any other party can be required to attend a meeting (s99(3)). It is good practice to think broadly and to involve all parties who may have an interest in the matter.

When and why should a pre-hearing meeting be held?

Pre-hearing meetings can be held at any time before a hearing. It is good practice to discuss the potential for a pre-hearing meeting and its process with the applicant, and obtain approval in principle to proceed if appropriate, before the submission period closes.

Pre-hearing meetings can assist in clarifying issues, drafting conditions, personalising the parties involved, and enhancing communication after the meeting. Involving the applicant and submitters in the decision-making process also ensures they 'own ' the result, more so than if the decision were made by someone else.

The informal nature of pre-hearing meetings can also allow parties to be more open and creative in finding mutually acceptable solutions. This is especially important where the council, applicant and interested parties need an ongoing relationship. Even when a hearing is subsequently required, pre-hearing meetings can help clarify issues, enabling the hearing to be more focused and less adversarial.

Be realistic about expectations and outcomes associated with pre-hearing meetings. They may not always resolve issues and may even extend the process when parties are not willing to resolve issues.

Can the eventual decision-maker on the application be present at the pre-hearing meeting?

A member, delegate, or officer of a council who decides for the council on the application may be present and participate at the pre-hearing meeting subject to two conditions:

Pre-hearing meetings generally work best when run by an experienced facilitator who is independent of the process. This brings a sense of objectiveness to the proceedings and should give all the parties confidence their concerns or issues are heard.

How do I coordinate a pre-hearing meeting?

The following list provides some general good practice tips for inviting parties to attend a pre-hearing meeting.

The Ministry for the Environment Pre-hearing meetings: A Practical Guide for Councils provides useful guidance on preparing for the meeting and running it.

Failure to attend a pre-hearing meeting

If a person required, as opposed to 'invited ', to attend the meeting fails to attend, and does not provide a reasonable excuse, the council may decline to process that person 's application or consider their submission (s99(8)). The affected person may not appeal against this decision under s120, but may object under s357A against the decision to the council (ss99(9) and (10)).

Record of outcomes from a pre-hearing meeting

Once a pre-hearing meeting has been held, the chairperson prepares a report setting out the issues that were agreed at the meeting and those that remain outstanding (s99(5)(b)). The chairperson may also set out the nature of the evidence that the parties are to call, the order of procedure, and a proposed timetable for the hearing (s99(5)(c)).

The report must be distributed to all parties that attended the pre-hearing meeting and received by all parties at least five working days before the hearing begins (s99(6)). The report can be sent out with the officer 's report before the hearing. The council must have regard to the report in making its decision on the application (s99(7)).

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Mediation

Mediation can help parties identify common ground and define, narrow and resolve issues. The RMA provides for mediation for applicants and persons who have made submissions to a resource consent application (s99A(1)).

A council may refer the matter to mediation either at the request of an applicant or submitter or at the Council's initiative, but only with the consent of all the parties. Parties can not be made to participate: mediation is only appropriate where there is a willingness to do so.

The mediation must be conducted by a person who has delegated authority from the council to mediate, or by an appointed mediator if it was the council that made the application for consent (s99A(3)). The person conducting the mediation must report the outcome to the council (s99A(4)). 

The RMA is silent on whether a hearings panel member can be involved in the mediation process. Engaging in preliminary discussions could undermine a hearings panel member 's ability to determine the case solely based on the evidence presented as part of the hearing process. Therefore councils tend to appoint an independent person to chair pre-hearing or mediation meetings.

Mediation can have the benefits of reducing the hearing time and/or negate the need for a hearing and lessen the chance of subsequent appeals. But mediation can also lead to delays in the process. Councils should provide advice to parties entering into mediation about its purpose, limitations, and how any outcomes will be used in the decision-making process.

Pre-provision of evidence

The RMA provides for the provision of briefs of evidence before a hearing (s41B). Typically the pre-provision of evidence is only used in relation to large or technical consent applications and the briefs of evidence are generally to the same standard as evidence prepared for an Environment Court hearing. The potential benefits of providing briefs of evidence before a hearing include:

The council is able to direct/require the pre-provision of evidence. When this occurs:

To facilitate this process, the time period for beginning the hearing is extended to 40 working days after the close of submissions. Therefore a decision about whether to require pre-provision of evidence needs to be made promptly after the close of submissions.

In the case of direct referral applications or requirements that are not pursued with the Environment Court and are returned to the relevant council for processing under ss87I, 198G, or 198M, the council must hold the hearing no later than 30 working days after the date on which the council knows that either of the aforementioned sections apply.

The briefs of evidence are generally provided to the hearing commissioner(s) before the hearing and then to all other parties at the hearing, unless specifically requested beforehand.

A council may provide for an applicant and submitters to provide rebuttal evidence at the hearing, but this is not required or prescribed in the RMA.

Hearings

Statutory requirements for hearings

It is not always necessary that publicly or limited notified applications proceed through a formal hearing process. A hearing is only required in one of the following situations:

When should a hearing be held?

A hearing for a notified consent must begin within 25 working days after the date submissions closed (s101(2)(c)), unless:

In the case of direct referral applications or requirements that are not pursued with the Environment Court and are returned to the relevant council for processing under ss87I, 198G, or 198M, the hearing must begin within 15 working days after the date on which the council knows that either of the aforementioned sections apply.  

Informing the parties that a hearing is to be held

The applicant and submitters who stated their wish to be heard must be given notice of the start date and time, and place of the hearing, at least 10 working days before the hearing starts (s101(3)). Any council-developed pamphlets or guidance for people attending hearings, should be included with the letter advising people of the hearing.

Example: Notice of hearing (MS Word 26 KB)

The officer's report must be circulated to all parties at least five working days before the hearing or at least 15 working days before the hearing if the pre-provision of evidence is required under s41B (s42A(3)). Refer to Writing the report on a notified or limited notified application section below.

Site visit

All decision-makers should undertake a site visit before the decision is made, and preferably before the hearing. A site visit at an early stage helps understand the context of the application and any issues raised in submissions. A longer, more complex hearing may require another site visit during the course of the hearing to focus on matters that may have arisen.

The committee/commissioner(s) should visit the site alone or with a council officer who is not the reporting officer. If this is not possible, for example due to staff resourcing constraints, then the reporting officer present can not express any views and opinions to the committee.

Hearings protocol

Hearings are to be held in public; a procedure needs to be established that is appropriate and fair in the circumstances. Exceptions to holding a public hearing include the protection of sensitive information (s42) or subject to conditions under the Local Government Official Information and Meetings Act 1987.

The way in which the hearing is to be run should be explained by the chairperson at the beginning of the hearing. Matters that might be referred to include:

The order of business before or during a hearing should be directed to promote the efficiency and effectiveness of the hearing. Decisions about directing or limiting evidence, and taking submissions as read, would generally be guided by: any pre-hearing report or mediation; the scale and significance of the application; the issues involved; and consideration of any pre-provided evidence.
The normal order of the procedure of a hearing is as follows:

  1. introduction by the chairperson
  2. applicant presents the application and supporting evidence
  3. submitters in support speak to their submissions
  4. submitters in opposition speak to their submissions
  5. council officer summarises the council report and makes any comments regarding information provided at the hearing
  6. applicant responds
  7. hearing is closed or adjourned for a decision to be made.

In most cases it is appropriate for applicants to present their case before the council staff reports on the application. This will avoid staff misinterpreting the applicant's case, especially if the application has changed as a result of pre-hearing consultation, or of council officer recommendations, or of effects mitigation.

In some situations it can be advantageous for the council officer to summarise the proposal and recommendations before the applicant speaks. This can raise awareness of the relevant plan provisions and provisions of the RMA (ie, relevant parts of ss 104, 104A-D and 105) which the committee or commissioner(s) are required to consider when deciding upon the application. This is most appropriate where an applicant is not represented by legal counsel, nor by a consultant familiar with the RMA. More than one council officer may need to present if an internal specialist advisor (eg, a subdivision engineer) has provided key input to the assessment.

Alternatively, contracted consultants may act on behalf of the council. If they are to present written reports, then these must also be circulated before the hearing in conjunction with the s42A officer 's report.

The council may also request that the applicant provide further information at the hearing (s41C(3)), or they may commission a report on any matter on which the council requires further information (s41C(4)). If any information is requested or commissioned and received after the start of the hearing then this information must be provided to the applicant and every person who made a submission and stated a wish to be heard. It must also be made available (at the council office) to any person who submitted and did not wish to be heard (s41C(5B)(b)). Refer to the Requesting further information guidance note for more information.

The Ministry for the Environment's publication Keeping It Fair: A Guide to the Conduct of Hearings Under the RMA provides a comprehensive guide to conducting hearings.

Joint hearings

Some proposals may require resource consents from more than one council, such as a territorial and regional council. In such cases, s102(1) of the RMA promotes a joint hearing. Where a joint hearing is to be held, the regional council for the area concerned will take the lead role in setting up the hearing, and establish the procedure to be followed. The responsibilities involved in the process need to be decided between the councils at an early stage of the process. The most effective way to achieve this is for officers from each of the councils to meet and allocate responsibilities. Decisions made at this meeting need to be well documented, and a copy of this record kept by each of the councils.

Joint hearings help to:

Who has speaking rights at a hearing?

Only the following people have the right to speak at a hearing:

Any submitter who did not request to be heard or anyone simply present to view proceedings at the hearing does not have the right to speak. The council officer does not have an automatic right to speak but is generally invited to do so.

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Striking out submissions

Before or during a hearing, the council can direct that all or part of a submission be struck out if it considers that the submission (or part of it):

When exercising this power the council must record its reasons for the direction (s41C(8)). A person whose submission is struck out has a right of objection to the council under s357 (s41C(9)).

In practice this power should only be exercised in a clear situation where appropriate reasons can be given. Good practice tips in considering whether to strike out a submission include:

The council needs to bear in mind the RMA 's inclusive approach to public participation, and to exercise such power with great care.

Submissions by trade competitors on trade competition grounds (in accordance with s308B) could be struck out under these provisions. More ideally, submissions by trade competitors which relate to trade competition or the effects of trade competition should not be accepted by a council.

Councillors and commissioners

Most councils tend to appoint councillors with delegated authority to make decisions on notified resource consent applications. The majority of councillors must have completed the Making Good Decisions programme and have a valid certificate. The Making Good Decisions programme provides training in the councils functions, responsibilities and powers under the RMA. The RMA requires that both the majority of any panel and the chairperson of any panel who are making a decision on an application have a valid certificate under the programme.

Where a conflict of interest for the council may exist (eg, where the council is both the applicant and the consent authority), independent commissioners should hear the application.

An applicant or person who makes a submission on an application may request (in writing) that the application be heard by one or more independent commissioner(s). This request must be made no later than five working days after the closing date of submissions (s100A). Submitters are liable for some of the costs of this request (s36) and should be informed of this.

Refer to the Use of commissioners guidance note for more information on the role of commissioners.

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Writing the report on a notified or limited notified application

Purpose of the hearing 's/officer 's report

The hearing 's/officer 's report serves to advise the decision-maker(s) - that is, the hearings committee or commissioner(s), or if no hearing was held, the person with delegated authority, on the matters to be considered. This ensures that an informed judgement on the application can be made.

What to include in the report

The report needs to assess the application and the supporting AEE, and include an analysis of the matters required by the RMA and the plan(s). It should summarise the submissions received, identify any written approvals supplied, and the outcomes of any pre-hearing meeting(s) or mediation. It should also include a recommendation as to whether the application should be granted or declined; and if granted, propose any conditions, including monitoring. The scope and depth of a report should reflect the scale and significance of the proposed activity.

As with all reports for consent applications, the scope and depth of a report on a publicly notified or limited notified application should reflect the scale and significance of the proposed activity.

In accordance with s42A(1A), the report does not need to repeat information from the AEE provided by the applicant. If this information is correct and has been checked and agreed with by staff, the AEE can  simply be cross referenced in the officer 's report and all or part of the assessment can be adopted. These provisions help to avoid unnecessary duplication.

Councils may have a set format for writing reports on notified consent applications. However, the example notified report for hearing (MS Word 42 KB) is a basic template to check against, or to adapt particular elements from.

It is not good practice to state in the report that the applicant can address certain matters/issues at the hearing. Any gaps should be addressed by way of a request for further information before completing the report. This will provide submitters with the opportunity to consider all information.

It is good practice and courteous to call the applicant and discuss the report 's contents before finalising it. This is particularly important if the recommendation is for the application to be declined as the applicant may wish to make changes to the application before the hearing or before the report is released.

When should the report be sent out, and to whom?

The report should be sent to the applicant, any submitters who wish to be heard, and the decision-maker(s) - whether it be a hearing committee, commissioner(s), or a council staff member with delegated authority.

Section 42A(3) of the RMA requires that the report arrives five working days before the hearing begins or 15 working days before the hearing begins if there has been a direction to provide evidence under s41B. This requirement may only be waived if the council is satisfied there is no material prejudice to any person who should have been sent a copy of the report under s42A(3).

Where an application is made for a significant project and it is to be heard, it is good practice to circulate the council officer 's report considerably earlier than five days before the hearing. This allows all parties to consider the recommendations and assessments made, address them, and potentially commission further evidence where required. This could be combined with the notice of hearing.

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Forms and checklists

Example: Limited notification letter (Word doc, 30 KB)
Example: List of submitters letter (Word doc, 27 KB)
Example: Notice of hearing (Word doc, 25 KB)
Example: Notified report for hearing (Word doc, 42 KB)
Example: Public notice (Word doc, 34 KB)
Example: Public notification letter (Word doc, 31 KB)
Example: Receipt of submission letter (Word doc, 30 KB)
Example: Submission form (Word doc, 92 KB)
Example: Withdrawal of request to be heard or withdrawal of submission form

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Case law

The following cases contain discussion on notified application matters.

Ngā Puawaitanga (Meremere) Ltd v Waikato District Council (1998) 4 ELRNZ 480 [1998] NZRMA 529 (HC) - the council has the discretion whether to accept any recommendation of a report compiled under s42A of the RMA.

PROJET Adventures Ltd v Queenstown-Lakes District Council (1993) 2 NZRMA 353 (PT) - this decision provides discussion about the importance of accuracy in the information provided in a public notice.

Marsh v Wanganui District Council EnvC C212/2000 - the Court held that it did not have the jurisdiction to consider certain activities within the resource consent application as they were not adequately described in the public notice.

Queenspark Residents Association Inc v Christchurch City Council EnvC C144/2001 - this decision noted that the purpose of the public notice is to alert members of the public to the fact that they might be affected, and to direct them to the appropriate points of contact to obtain more specific information.

The Ngatiwai Trust Board v Whangarei District Council A80/95 (PT) - s99 (pre-hearing meetings) is a discretionary section and there is no compulsion for a council to undertake pre-hearing meetings.

Fleetwing Farms Ltd v Marlborough District Council CA255/96 - joint hearings (ss102 and 103) are confined to relate to a single applicant. The RMA does not allow for a comparative assessment of competing uses for the same resource.

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Relevant publications

Making a Submission about a Resource Consent
Ministry for the Environment - updated November 2009
A short, simple guide on how to make good written submissions to your local council.

Appearing at a Resource Consent Hearing
Ministry for the Environment - updated November 2009
A short, simple guide for people who have made a submission and want to speak at a hearing.

Getting in on the Act
Ministry for the Environment - updated November 2009
A short, simple guide on how the RMA works and how it might affect users.

Roles and Responsibilities under the Resource Management Act 1991 - A Guide for Local Government Politicians
New Zealand Planning Institute - 1998
This resource kit provides helpful hints of all the processes under the RMA and how to conduct the processing of resource consents and hearings.

Taking a Closer Look at Public Notices (PDF 208 KB)
New Zealand Planning Institute - January 2001
Looks at the user-friendliness of public notices and makes suggestions for improvements to current practice.

Keeping it Fair: a guide to the conduct of hearings under the Resource Management Act 1991
Ministry for the Environment - July 2001
Outlines various issues associated with hearings and discusses order of proceedings, speaking rights and techniques for asking questions and listening to answers.

Pre-Hearing Meetings: A Practical Guide for Councils
Published by Ministry for the Environment - March 1999
A guide for council staff developing procedures for pre-hearing meetings, which are a useful tool to clarify issues and resolve disputes in relation to resource consent applications.

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Relevant websites

The following are helpful websites that contain information relevant to this guidance note:

The Auckland Regional Council, Auckland City Council and Tasman District Council sites have a webpage listing all currently notified applications for resource consents.

Refer to Auckland Regional Council's Currently notified applications.

Refer to Auckland City Council's Public notices - Application for resource consent

Refer to Tasman District Council's Current Resource Consent Applications.

The Hastings District Council website has information on the difference between notified and non-notified resource consent applications, the costs of each, and annual user charges. Refer to Hastings District Council's notified and non-notified resource consents.

The Auckland City Council website also contains information on how to make a submission and provides a submission form to download. Refer to Auckland City Council's Making a submission.

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Current challenges in practice

Making the wording of the public notice clear, correct and adequate

It can be difficult to clearly state the exact nature of the application in the public notice. For example, applications may be complex and involve a number of different applications for resource consent; or they may not contain a clear description of what is actually proposed. Yet it is important that the description in the public notice is as clear and accurate as possible: it should not impede potential submitters ' judgements as to whether or not they may have concerns about the project. This situation may be avoided by circulating a draft notice to the applicant and getting agreement that the wording is correct. If the applicant has agreed to the wording, the council should keep a file note recognising that.

Utilising pre-hearing meetings/mediation as a resolution tool

Pre-hearing meetings or mediation are not routinely used or promoted as a way of assisting the resolution of issues surrounding a potentially contentious application. However the number of pre-hearing meetings in particular is increasing. In some instances they are not actively promoted; many applicants may not realise the potential for such meetings to be set up, or for mediation to take place.

Guiding applicants to a pre-hearing meeting or mediation should be more actively promoted through educating council staff as well as applicants on this process and its benefits. For example, a pre-hearing meeting can be arranged and held within the 25 working days available before the hearing, hence not extending the time taken to reach a final decision.

However, pre-hearing meetings and mediation do also have the potential to extend the time taken to process an application and the outcome can be less certain. Therefore this needs to be considered and communicated to the applicant before proceeding with either of these options.

Identifying conflicts of interest

It can be difficult to ensure that people appointed to hearing committees do not have a conflict of interest and therefore should be excluded from making a decision on an application. Sometimes this is beyond everyone 's control. Safeguard against this occurring by double-checking with elected representatives that they have had no contact with the applicant or submitters during the process; in the case of independent commissioner(s), verify they have not previously advised any of the parties. A cautious approach on these matters can avoid embarrassment at the time of the hearing.

Refer to the Use of commissioners guidance note for more information.

Speaking rights at hearings

Often at hearings people present may want to speak, including non-affected parties or even submitters who had previously said they did not wish to be heard. The best way to avoid this problem is by the chair of the committee asking all parties present at the hearing who wishes to speak, and to identify themselves and the capacity in which they wish to speak. Anyone identified who is not recognised as having speaking rights can then be acknowledged by the chair, welcomed, and advised they will not be able to speak.

This guidance note was updated in June 2009 and further amendments were made in November 2009 by Greg Lee of Beca and MfE.