Making a decision on the application
Abstract
Sections 104 to 116 of the Resource Management Act 1991 (RMA) regulate the determination and issuing of resource consent decisions and the change or cancellation of consent conditions. This Guidance Note provides best practice information on how to make a decision, how to notify it, and on objection and appeal procedures.
Guidance note
Section 104 – matters to be considered
Section 104 of the RMA sets out the principal matters, subject to Part 2, which a council must 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:
- any actual and potential effects on the environment
- any relevant provisions of a national policy statement, a New Zealand coastal policy statement, and an operative and/or proposed regional policy statement or proposed plan
- any other matters the council considers relevant and reasonably necessary to determine the application
- the value of the investment of the existing consent holder when considering an application affected by s124 (exercise of resource consent while applying for new consent).
A council may disregard an adverse effect of an activity on the environment if the plan permits an activity with that effect (s104(2)).
Section 104(3) sets out what the council must not do:
- have regard to trade competition
- have regard to any effect on a person who has given written approval to the application, unless the approval is withdrawn in writing before the hearing or determination of the application
- grant a consent contrary to the provisions of any of the following:
- s107 (restriction on grant of certain discharge permits)
- s107A (restrictions on grant of resource consents)
- s217 (effect of water conservation order)
- an Order in Council in force under s152
- any regulations
- a Gazette notice referred to in s26(1), (2) and (5) of the Foreshore and Seabed Act 2004
- grant a consent if the application should have been publicly notified and was not
- grant consent for a prohibited activity
- grant a subdivision consent where the circumstances set out in s106 can not be reconciled. (These include land or structures on the land that would be or are likely to be subject to damage by erosion, falling debris, subsidence, slippage or inundation; or the use could accelerate or worsen these causes; or sufficient access to lots is not available.)
Case law has determined that subject to Part 2 of the RMA, s104 does not give council the ability to give primacy to any matters to which they are required to have regard to, over any other matter. The matters can be given weight as the council sees fit in the circumstances (see Keystone Ridge Limited v Auckland City Council).
Sections 104A–D – decisions on applications
Sections 104A to 104D set out the circumstances in which a council 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:
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. Every decision on an application for resource consent must be in writing and state:
(a) the reasons for the decision
(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 s113:
- sets out what content is required and does not specify a particular structure or order for presenting the content in the decision
- does not distinguish between notified, non-notified and limited notified decisions. All decisions on applications should address the requirements of s113.
Principles of good, written decisions
In addition to the requirements of s113, there are 18 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.
An overview of the principles of good, written decisions is contained in the following document:
Alternatively, more can be read below on each principle which are grouped under three headings: Structure & Appearance, Content, and Expression. They are presented in no particular order of importance and incorporate all the required elements of s113.
Structure and appearance
Content
Expression
Decision templates
The example decision templates below fulfil the requirements of s113, and also address the other principles of a good, written decision set out above. They can be adapted for use by councils.
Examples of good, written decisions
The following are 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.
Notified regional council examples:
Notified city / district council examples:
Notified territorial authority example:
Limited-notified regional council examples:
Limited-notified territorial authority example:
Non-notified regional council examples:
Non-Notified territorial authority examples:
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 ss93(2) and 95 of the Act (s94 does not apply). An application must be considered by a committee of the regional council, which must contain one person appointed by the Minister of Conservation. This committee may hold hearings as part of their consideration of the application. A recommendation is made (in accordance with ss104–108 and 119 of the RMA) 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 before the recommendation being made to the Minister.
Quality assurance
Before resource consent is signed off by a council 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.
See the Issuing a consent Guidance Note for guidance on quality assurance at the stage of issuing a resource consent, and for an example of a quality assurance checklist.
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 on the applicant, every person who made a submission, and any other persons or authorities the council considers to be appropriate. This service must also contain a statement of the time in which an appeal against a decision may be lodged. As outlined under the s113 requirements, the decision must be in writing.
If a hearing was held, notification of the decision must occur no later than 15 working days after the close of the hearing. The clock starts at the end of the public hearing, when the Chairperson announces that the hearing is closed (note: in case of adjournment, the clock does not start until the hearing is actually closed).
If no hearing was held and the application was not notified, then notification of the decision must occur no later than 20 working days after the date the application was received. (This excludes any period for 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. (This also excludes any period for 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 s114(3) allows a summary of the decision to be served, but only on parties other than the applicant. Should this option be chosen by the council, then the parties must be made aware of where a full copy of the decision is available for viewing: the RMA specifies this must be at all council offices and public libraries within the area of jurisdiction. The council also needs to make parties aware that a full copy of the decision can be provided within three working days of a request being made.
How do I notify the applicant of the decision?
The decision letter must include a copy of the decision, including any consent conditions imposed (refer to Resource consent conditions).
It must also inform the applicant of the right of appeal (s120) and/or objection (s357) and of the 15 working day timeframe within which to lodge an appeal/objection should the decision not be satisfactory.
With non-notified resource consents, the decision letter should advise that the resource consent commences immediately unless an objection is lodged. If an objection is made under s357A, the resource consent commences once the objection, and any appeal under s358, has been decided on, or withdrawn.
With notified resource consents, the decision letter should advise 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 the consent. Where an appeal has been lodged, the applicant can not exercise the consent until the time for lodging appeals expires and no appeals have been lodged, or until the Environment Court determines that the appeals be withdrawn.
If the consent is granted, the decision letter should also advise the applicant of the consent expiry date. In accordance with s125, a resource consent lapses on the date specified in the consent or five years after the date of commencement of the consent, unless the consent has been given effect to or unless the applicant applies to the council to extend the consent period.
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. At the least, the letter should indicate to the applicant that an invoice will 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 S120(1) 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.
Objections to decisions
Under s357A, an applicant has a right of objection to the council in relation to a resource consent decision: if the application was not notified or notice of the application was not served; or if the application was notified or served and no submissions were received or were withdrawn. Section 357B also provides for a right of objection to a request by council to pay additional charges or costs.
An objection must be made in writing and must be lodged with the council within 15 working days of receipt of the decision and must set out the reasons for the objection (s357C(1)–(2)).
In the case of an objection made under s357A, the council must consider the objection within 20 working days and give at least five working days’ written notice to the objector of the date, time, and place for the hearing of the objection. For objections made under s357B the council must consider the objection “as soon as reasonably practicable” and give written notice to the objectors, as for a 357A objection.
The council may choose to hear the objection; or where officers have delegation to do so, deal with it at officer level if agreement can be reached between the objector and the council.
A decision on an objection is to be made in writing and then served on the applicant. An applicant dissatisfied with the council decision on the objection, may appeal to the Environment Court under s120(1) within 15 working days of the receipt of the objection decision.
Appeals to the Environment Court on decisions
An applicant or submitter can appeal a council resource consent decision to the Environment Court under s120(1), except for decisions made by the Minister of Conservation under s119 (s120(1)). This appeal right under s120(1) is in addition to the objection rights provided for in ss357A, C and D.
The appeal must be made in writing and must state the reasons for the appeal, the relief sought, and any other matters required by the regulations. The appeal must be received by the Environment Court within 15 working days of receiving the council’s decision. A copy of the notice of appeal must be served on everyone referred to in s120 (except for the appellant) within five working days of the notice being lodged with the Court.
Form 34: Notice to Environment Court of appeal (MS Word 45 KB)
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.
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)
Case law
Auckland CC v John Woolley Trust [2008] NZRMA 260 (HC) –when considering a restricted discretionary activity application, a council 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.
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.
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.
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 s104B of the Act (then s104(1)).
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.
Baker Boys Limited v Christchurch City Council (1998) 4 ELRNZ 297; [1998] NZRMA 433 (EC) – this decision provides guidance as to the correct procedure when considering a non-complying activity. That is: firstly to 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 s104; then as part of the overall discretion in s104B, to weigh the relevant matters under s104.
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.
Relevant publications
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.
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.
Relevant websites
The following website contains information relevant to this Guidance Note:
The Environmental Defence Society site has a webpage on lodging a resource consent appeal. This webpage 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.
Related guidance notes
Current challenges in practice
The cases listed in the case law section contain discussion on decision-making matters.
This Guidance Note was updated in June 2009.
