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Making a decision on the application

Abstract

Sections 104 to 116 of the Resource Management Act 1991 regulate the determination and issuing of decisions on applications for resource consent and change or cancellation of conditions of consent. This Guidance Note provides best practice information on how to make a decision, how to notify it and objection and appeal procedures.

For more information on the use of commissioners, refer to the Guidance note the Use of Commissioners.

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Guidance note

Section 104 - matters to be considered

Section 104 of the Resource Management Act (RMA) sets out the principal matters, subject to Part II, which a consent authority shall have regard to (and other matters it must disregard) when considering an application for resource consent and any submissions received.

Matters to be considered include:

A consent authority may disregard an adverse effect of an activity on the environment if the plan permits an activity with that effect. In addition section 104(3) sets out things the consent authority must not do. These are:

Case law has determined that subject to Part II of the Act, neither section 104 nor 105 gives any matters to which the consent authority is required to have regard, any primacy over any other matter, and can be given such weight as the consent authority sees fit in the circumstances (see Keystone Ridge Limited v Auckland City Council).

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Sections 104A-D - decisions on applications

Sections 104A to D set out the circumstances in which a consent authority may/must grant or refuse consent, with reference to the type of activity for which consent is sought. Under each of these sections the manner of any grant or refusal is:

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What to include in a decision

Section 113 requirements

Section 113 of the RMA sets out certain matters that must be covered in the written decision. According to section 113, every decision on an application for a resource consent should be in writing and should state:

(a) the reasons for the decisions
(aa) the relevant statutory provisions that were considered by the consent authority
(ab) any relevant provisions of the following that were considered by the consent authority:
(i) a national policy statement:
(ii) a New Zealand coastal policy statement:
(iii) a regional policy statement:
(iv) a proposed regional policy statement:
(v) a plan:
(vi) a proposed plan; and
(ac) the principal issues that were in contention; and
(ad)  a summary of the evidence heard; and
(ae)  the main findings of fact; and

(b) in a case where a resource consent is granted for a shorter duration than specified in the application, the reasons for deciding on the shorter duration.

(2) without limiting subsection (1), in a case where a resource consent is granted which, when exercised, is likely to allow any of the effects described in section 107(1)(c) to (g), the consent authority shall include in its decision the reasons for granting the consent.

It is important to note that:

Principles of good written decisions

Section 113 should not be viewed as a straitjacket or a minimum requirement. There are eighteen principles that should underlie the drafting of every written decision. These principles have been developed from the perspective of the end user (such as the applicant, submitters, or council staff not involved in processing the application), who may not always have an intimate knowledge of the RMA and its processes. The principles are grouped under three headings - Structure & Appearance, Content and Expression – but are presented in no particular order of importance.  The principles incorporate all the required elements of section 113.

Structure and appearance

Principle 1: Ensure a professional appearance

The finished decision document must have a professional appearance befitting of the time, effort and expense that the parties have gone to and its status as an important legal document.  A professional appearance can be achieved by ensuring:

Principle 2: Provide the decision at the start

The majority of consent decision readers want to know immediately the overall consent decision, in terms of either the granting or refusing of consent.  This should be provided at the outset, in bold. 

Principle 3: Use a logical structure that supports a fluent argument

The finished decision document should be expressed in a fluent manner from start to finish.  It should have a logical structure and sequence that supports a flow of argument; one that enables the reader to easily follow the links between the principal issues in contention, the main findings of fact, the decision, and the reasons for that decision (although not necessarily in this order).

The decision need not follow the sequence of matters as set out in section 113 (which relate to the required content).  No one single structure or template fits all decisions, however fluency can be enhanced - and the structure made easily identifiable to readers - through the use of descriptive headings, and by avoiding the use of large sections of unbroken text.  Descriptive headings help a reader know where they are in a document.  A contents page should be used for lengthier decisions (e.g. over eight pages in length). 

Content (in no particular order)

Principle 4: The decision length and level of detail should reflect the complexity of application

As a general principle, the length and amount of detail of a written decision should reflect the complexity of the issues raised by the application and the number of participants involved in the hearing (where one is held).  As a general rule, written decisions should be as succinct as possible.

Principle 5: The written decision should endure over time and involvement

The final written decision should be able to be picked up in five years’ time (the normal consent duration) by someone who was not involved in the application or hearing, and be clearly understood.  A decision writer should be mindful to record or refer to in the decision any assumptions or knowledge they have that are germane to the decision, and that may not be immediately apparent in five years’ time when the consent may be given effect to.

Principle 6: Be mindful of scope

The final written decision must be worded so that it does not grant consent for an activity greater in scope than that requested in the resource consent application.  Similarly, conditions must not extend the scope of the consent or the way in which it is exercised. The written decision must be within the confines of the application, and advice notes must not cover matters that should be conditions of consent.

Principle 7: Identify the principal issues in contention (s113(1)(ac))

The final written decision must clearly identify the principal issues that were in contention and which were considered in determining the application.  Where there is contrary or opposing evidence on these issues, the decision should identify those differences and show which argument or evidence takes precedence and why. The principal issues that were in contention might include not just arguments over the scale and significance of any actual or potential environmental effects, but differing views on the interpretation and relevance of statutory provisions and the provisions of policy statements and plans, for example.

Principle 8: Identify the main findings of fact (s113(1)(ae))

The final written decision should identify the main findings of fact that lead decision-maker(s) to their decision.  Main findings of fact are the facts that the decision-maker(s) consider are important in reaching their decision on the application.  They address the principal issues in contention, and may state which facts are relied on in the event of conflicting evidence.

Principle 9: Provide a succinct summary of the evidence heard (s113(1)(ad))

When a hearing has been held, the final written decision should provide a succinct but accurate summary of the evidence presented or, as a minimum, refer to the main matters addressed by witnesses during their presentations of evidence (particularly where they relate to the principal issues in contention).  Acknowledging appearances and making specific reference to each person who spoke enhances public confidence in the decision, and helps satisfy parties (especially submitters) that their submissions and evidence have been properly considered. 

Setting out in great detail the arguments advanced by the parties and the evidence of the witnesses can obscure the principal issues that have to be decided and can make the reasoning process difficult to follow.  Nevertheless, it may be appropriate to include a brief summary of submissions and reference to the decision on notification, for the benefit of those who did not attend the hearing (where one was held), or where decisions on non-notified or limited notified applications are concerned.  Alternatively, the decision may refer to the relevant officer report in these circumstances. 

Principle 10: Provide reference to relevant statutory provisions (s113(1)(aa))

The final written decision should make reference to the relevant statutory provisions that were considered by the decision-maker(s); i.e. those on which their decision turns.  These provisions may include Part 2 matters as well as those set out in Part 6 (such as the relevant statutory tests). The former may be particularly important where the relevance of particular provisions has been a principal issue in contention. 

Principle 11: Provide reference to relevant policy statement or plan provisions (s113(1)(ab))

Where appropriate, key RMA policy statement or plan provisions should be specifically referenced with some comment as to what the relevant objectives or policies are seeking to achieve.  This is especially appropriate in dealing with applications for non-complying activities, or where the arguments over the relevance of those provisions have been a principal issue in contention.  Relevant provisions can include national, regional and local-level objectives and policies.  Simply listing objective and policy numbers is not appropriate.  Where minor applications are concerned, and/or where provisions were not a source of contention, it will be unduly onerous to identify every relevant provision.  As an alternative, reference to the relevant provisions can be made in the discussion in the officer’s report. 

Principle 12: Provide an overall evaluation leading directly to the decision whether to grant or refuse consent

The final written decision whether to grant or refuse consent should be immediately prefaced by a clear and compelling overall evaluation, in which a conclusion is reached with reference to the scale and significance of effects and relevant statutory and plan provisions.  Specific reference should be made to Part 2 of the RMA; in other words, whether the sustainable management purpose of the RMA will be better addressed by granting consent (subject to conditions) than by withholding consent. In practice, where the application lends itself, this part of the decision may actually comprise the entire discussion relating to principal issues in contention and main findings of fact.

Principle 13: Provide reasons for the decision (s113(1)(a)) & s113(1)(b)

The written decision should give clear reasons why the consent has been granted or refused.  The reasons for a decision must be intelligible, and they must be adequate.  They must enable the decision reader (principally the applicant and submitters) to understand why the matter was decided as it was, and what conclusions (i.e. ‘main findings’) were reached on principal issues.  Reasons can be briefly stated; the degree of particularity required depending entirely on the nature of the issues being decided. The reasons need not repeat earlier statements as to principal issues or main findings, but there should be a clear link to that discussion. Another way of stating this is that there should not be any reasons stated that do not flow on from earlier discussion in the decision report.

It may be appropriate to include reasons for the imposition of certain conditions where this is not immediately apparent.  Such reasons can follow the individual conditions to which they relate, or can be referred to in the reasons for the decision (where they relate to the discussion on the avoidance, remedy or mitigation of particular adverse effects – see principle 18 below)

In a case where a resource consent is granted for a shorter duration than specified in the application, the reasons for deciding on the shorter duration should be included.

Principle 14: Include appeal options, procedural rulings and the basic application (and hearing) details

In addition to the statutory requirements listed under principles 7-13 above, information regarding appeal options and deadlines should form part of a written decision.  Any rulings on procedural matters (e.g. late submissions) should be addressed. A written consent decision must also clearly state the basic application details, which includes the consent number(s), the property address and legal description, consent status of the activity for which consent is required, and the file reference(s). The decision should also record a brief description of the existing environment, the dates of the hearing (if held), site visit(s) (when undertaken, who present), who or what hearing entity or consent authority has made the decision, and the date the decision was made.  A checklist is a useful tool to ensure these basic details are included.

Expression

Principle 15: Take ownership of decision

The written expression of the decision should be that of the decision maker(s), so they should take ownership of its content and be confident in the final wording and able, if necessary, to defend the decision. The decision should make reference to the members of the hearing panel, and be signed by the chair of the panel, the sole commissioner, or other decision-maker with delegated authority.

Principle 16: Use plain English

Good decision writing will result in a simple, concise, well-reasoned and easily comprehensible explanation of why the decision was made.  The tone, grammar and flow of the written decision must be appropriate for the audience (i.e. the applicant and submitters and members of the general public), and should be written using plain, simple English.  Having said this, it is not necessary to simplify or substitute terms or definitions used in the RMA.

Principle 17: Ensure consistency of expression

Terms or people must be referred to consistently throughout the written decision document.  For example all submitters should be addressed consistently, either with or without a Mr, Mrs or Ms before their name.  Excessive use of abbreviations should be avoided.  Where abbreviations or terms such as “the Act” are used, these should be expressed in full at their first use.

Principle 18: Keep the decision effects-focused

The written decision should reflect the effects-based approach of the RMA in terms of the overall written style.  The decision should be expressed in terms of whether actual or potential adverse effects can be appropriately avoided, remedied or mitigated.  It is good practice to link those findings to the conditions which have been imposed.

Decision templates

The following links are to decision templates that fulfil the requirements of section 113, as well as addressing the other principles of a good written decision set out above. They can be adapted for use by councils.

Examples of good written decisions

To view examples of actual decisions on a range of relatively simple and complex applications by council hearing panels, sole independent commissioners, or others with delegated authority, that accord with the majority of the principles set out above, download the documents below.

Notified regional council examples:

Notified city / district council examples:

Notified – Joint regional & city / district council example:

Limited notified regional council examples:

Limited notified city / district council example:

Non-notified regional council examples:

Non-Notified city / district council examples:

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Decisions on Restricted Coastal Activities (RCA)

Sections 117-119 of the RMA set out the special procedures under which an application for a RCA made to a regional council must be notified, considered and decided [see Flowchart for notification decisions on restricted coastal activity applications]. In the case of a RCA, the application must be notified in accordance with sections 93(2) and 95 of the Act (section 94 does not apply). An application must be considered by a committee of the regional council. This committee must also contain one person appointed by the Minister of Conservation. The committee may hold hearings as part of their consideration of the application. A recommendation is made (in accordance with sections 104-108 and 119 of the Act) to the Minister, who then makes the final decision within 20 working days of receipt of the recommendation.  The process for receipt and consideration of any notices of inquiry (appeals) in relation to the recommendation must be completed prior to the recommendation being made to the Minister.
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Quality assurance

Before a resource consent is signed off by a consent authority and issued, it is good practice to carry out checks to ensure that each step of the consent process has been completed correctly.

It is helpful to have a list of the quality assurance matters that should be checked off.

This list could include:

Example: Checklist for issuing a resource consent (MS Word 31KB)

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Notification of the decision

When do I notify the decision?

Section 114 of the RMA requires a council to serve a copy of its decision in writing on the applicant, every person who made a submission and anyone else the Council considers to be appropriate. This service must also contain a statement of the time in which an appeal or objection against a decision may be lodged.

If a hearing was held, notification of the decision must occur no later than 15 working days after the close of the hearing. Note that the clock starts at the end of the public hearing when the Committee/ Commissioner announces that the hearing as closed. The hearing does not close at the time the Committee/ Commissioner makes their final decision.

If no hearing was held and the application was not notified, notification of the decision must occur no later than 20 working days after the date the application was received, excluding any period within which the processing clock was stopped.

If no hearing was held but the application was notified, notification of the decision must occur no later than 20 working days after the closing date of submissions, excluding any period within which the processing clock stopped.

If the application drew a large number of submissions and the decision is somewhat lengthy due to the nature of the application, then section 114 allows a summary of the decision to be served on parties other than the applicant. Should this option be chosen by the Council then the interested parties must be made aware of where a full copy of the decision is available for viewing (the Act specifies that this must be at all Council offices and public libraries within the area of jurisdiction). The Council also needs to make parties aware that on request a full copy can be provided within 3 working days of the request being made.

It is always safest to issue a decision in writing only, particularly in relation to applications that have been decided on by a Hearing Committee or Commissioner.

How do I notify the applicant of the decision?

Notification of the decision must be in writing and should include a copy of the decision and any consent conditions set (refer to Conditions of a resource consent).

The letter must inform the applicant of their appeal/ objection rights (sections 120 and 357), should they be dissatisfied with the decision made.

If consent has been granted, the letter needs to specify that until the period for lodging appeals is up (15 working days from the date the applicant received notice of the decision), the consent holder must not commence activity.

In addition to notifying the applicant of the decision, some councils also include details of the charges the applicant can expect to incur (refer to Administering Resource Consent Charges and Setting Charges For Processing and Monitoring consents).This is best attached as an invoice rather than detailed in the letter. In the least, the letter should indicate to the applicant that an invoice would be sent separately. If the consent application was approved, the invoice may also need to include any charges associated with monitoring the consent.

How do I notify the submitters of the decision?

Submitters are notified of the decision in the same way as applicants - in writing, with a copy of the decision and any consent conditions attached.

As with the letter to the applicant, submitters need to be informed of their appeal rights under section 120 should they be dissatisfied with the decision. Submitters also need to know that they have 15 working days from the date they received notification of the decision, to lodge their appeal with the Environment Court.

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Objections to decisions

Under section 357(2) an applicant can object to the consent authority in relation to a decision on an application for resource consent, change of condition, cancellation of condition or review of conditions if the application was not notified or if the application was notified and no submissions were received. An objection must be made in writing and must be lodged with the Council within 15 working days of receipt of the decision.

The Council may chose either to hear the objection or, where officers have delegation to do so, deal with it at officer level where agreement can be reached between the objector and the Council. A decision on an objection should be made in writing and then served on the applicant/consent holder. Should the applicant/consent holder then not be satisfied with the decision on the objection then they may appeal this decision to the Environment Court within 15 working days of the receipt of the objection decision.

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Appeals to the Environment Court on decisions

An applicant or submitter can appeal a decision of a consent authority on an application for resource consent, change or cancellation of condition, or review of condition to the Environment Court. This is with the exception of a decision made by the Minister of Conservation under section 119. The appeal must be made in writing and received by the Environment Court within 15 working days of the day of receiving the Council’s decision. A copy of the notice of appeal must be served on everyone referred to in section 120 except for the appellant within 5 working days of the notice being lodged with the Court. The appeal must state the reasons for the appeal, the relief sought and any other matters required by the regulations.

Form 16: Notice to Environment Court of appeal or inquiry on decision or recommendation on application concerning restricted coastal activity, resource consent, water permit, certificate of compliance, matter of national significance or esplanade strip (MS Word 45KB)

Where an appeal is not successful the appellant may be awarded costs against them to pay for the costs of the defendant having to represent their case to the Court. See the Ministry's booklet Awarding of Costs by the Environment Court.

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Forms and checklists

Example: Checklist for issuing a resource consent (Word document 31KB)

Example: Notice of notified consent decision letter - consent refused (Word document 34KB)

Example: Notice of notified consent decision letter – consent granted (Word document 29KB)

Example: Notice of non-notified decision letter - consent granted (Word document 35KB)

Example: Notice of non-notified decision letter – consent refused (Word document  28KB)

Example: Notice of decision letter to submitters – consent granted or refused (Word document 31KB)

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Case law

Bayley v Manukau City Council [1999] 1 NZLR 568; (1998) 4 ELRNZ 461; [1998] NZRMA 513 (CA) and Smith Chilcott Ltd v Auckland City Council [2001] 3 NZLR 473; (2001) 7 ELRNZ 126; [2001] NZRMA 503 (CA) – these decisions discuss the use of the permitted baseline concept in assisting making decisions on applications.

Keystone Ridge Limited v Auckland City Council AP24/01 – matters to be considered when addressing weighting between the provisions of different plans.

Dye v Auckland Regional Council [2001] NZRMA 513 (CA) – if a non-complying activity meets either limb of the threshold test it still has to be considered as suitable for approval under section 104B of the Act (then Section 104(1)).

Hopper Nominees Limited v Rodney District Council (1995) 2 ELRNZ 73; [1996] NZRMA 179 (HC) – there is no primacy given to either limb of the threshold test.

Baker Boys Limited v Christchurch City Council (1998) 4 ELRNZ 297; [1998] NZRMA 433 (EnvC) – this decision provides guidance as to the correct procedure when considering a non-complying activity. That is to firstly identify the relevant s104 matters for consideration; secondly, to consider whether the jurisdictional hurdles in s104D(1) are met having had regard to the matters under section 104; then as part of the overall discretion in s104B to weigh the relevant matters under s104.

Stokes v Christchurch City Council [1999] NZRMA 409 (EC) – confirmation that the proper test is whether the adverse effects of a proposed activity when remedied or mitigated are more than minor when taken as a whole.

Wilson v Selwyn DC [2005] NZRMA 76 (HC) - consideration of what comprises the "existing environment" and the effects of a development on potential future activities.

Queenstown Lakes DC v Hawthorn Estate Ltd [2006] NZRMA 424 (CA) - the definition of “environment” embraces the future environment as it might be modified by permitted activities or resource consents that have been granted and are likely to be implemented. The application of the "permitted baseline" should however be limited to the effects of the developments on the subject site – see also Unison Networks Joint Venture Ltd v Waikato RC A041/07 (HC).

Lyttelton Harbour Landscape Protection Assn Inc v Christchurch CC C055/06 - see this case for a summary of the questions a Court should ask in determining the relevance of the permitted baseline.

Sea-Tow Ltd v Auckland RC A066/06 - sets out the principles that guide the adoption of the precautionary approach in deciding resource consent applications.

Royal Forest & Bird Protection Soc of NZ Inc v Buller DC [2006] NZRMA 193 (HC) - a flexible approach to risk assessment is appropriate. Regard must be had to the particular context and the seriousness of the potential effects and impacts of a proposed activity in deciding whether a matter is proved on the balance of probabilities.

Auckland RC v Living Earth Ltd CIV-2006-404-6659 - it is not permissible in considering a resource consent application to have regard to an effect on a putative activity or development that would require resource consent that has not been applied for, or require a plan change that has not been notified.

Rotokawa Joint Venture Ltd v Waikato RC A041/07 - it is not appropriate to impose costly conditions that could prove to be of poor cost effectiveness if the adverse effects were to prove to be not be so serious as to justify high cost measures.

Auckland CC v John Woolley Trust [2008] NZRMA 260 (HC) - when considering a restricted discretionary activity application, a consent authority may have regard to Part 2 matters in determining whether consent should be granted, but not in determining whether consent should be refused. The power to refuse consent and to impose conditions is limited to the matters specified in the District Plan.

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Relevant publications

Keeping it fair: a guide to the conduct of hearings under the Resource Management Act 1991
Published by 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.

Your Guide to the Resource Management Act: An essential reference for people affected by or interested in the RMA
Published by Ministry for the Environment - August 2006
This guide for the public presents a simple explanation of the RMA legislation, the processes it has established, and how people can use it to pursue their interests.

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Relevant websites

The following website contain information relevant to this guidance note:

The Environmental Defence Society website has a webpage on lodging a resource consent appeal. This page contains information for the applicant on forms of appeal, the content of appeal and lodgements and service of the appeal. It also provides examples of submissions on resource consent applications. Go to Environmental Defence Society's Processing of Resource Consent Applications.

The Christchurch City Council website has a one page outline detailing for the applicant their rights of appeal. Go to Christchurch City Council's Appeal and Resource Consent Information (PDF 46KB).

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Related guidance notes

Use of Commissioners

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Current challenges in practice

The cases listed in the case law section contain discussion on decision making matters.