Non-notified resource consents
Abstract
Non-notified resource consent applications follow a shorter and simpler process path than notified applications. This Guidance Note deals with how this process works and how section 42A Officer Reports for these types of applications are compiled.
Guidance note
What are non-notified resource consent applications?
Non-notified resource consent applications are those applications that are not either publicly or limited notified applications. They are applications that the Council has decided that the proposed activity, or change or cancellation of an existing resource consent condition, will either have:
- less than minor adverse effects on the environment and no parties are considered adversely affected; or
- no more than minor adverse effects on the environment and all parties considered adversely affected have provided their written approval.
How is the process for non-notified applications different to notified ones?
As part of the assessment of an application and its associated assessment of environmental effects the consent authority needs to decide:
- The degree and magnitude of any adverse environmental effects
- If there are any adversely affected parties.
If the adverse environmental effects are considered more than minor then the application needs to be publicly notified. If the adverse effects are considered to be minor then the application can be considered on a non-notified basis provided the written approval of all adversely affected parties is obtained. In some cases the Council may decide that the adverse effects are less than minor in scale and that there are no adversely affected parties and that no written approvals are required for the application to be processed on a non-notified basis. Should any parties deemed affected by the Council not provide their written approval then the application must proceed down the limited notification process. See To notify or not to notify? That is the question!.
Plans may contain specific provisions in relation to particular rules as to whether affected parties are required to be considered to provide their written approval. This is usually in relation to controlled or restricted discretionary activities.
Once a decision has been made that no written approvals are required or all the appropriate written approvals have been received, then an application can be assessed and a decision made about whether to grant or refuse the application. These applications more often than not do not require a hearing, but sometimes a hearing may be required where the applicant asks for one or the Council considers it appropriate that it be heard for a particular reason.
The council can delegate the approval of non-notified applications to officers or officer committees.
See the flow diagrams Figures 1 to 3 in guidance note To notify or not to notify? That is the question! regarding the process that non-notified applications go through when compared to notified applications.
It is good practice when deciding who might be an affected party to consider what similar effects could be experienced by these parties as permitted uses. This follows the permitted baseline exercise for considering the effects of activities.
What timeframes apply?
The following timeframes for processing an application after receipt are as shown in the flowcharts linked below:
If there is potential that the application for a non-notified consent will be required to go to a hearing then it is good practice for you to inform the applicant as soon as possible after the consent is lodged and provide the reasons for this process.
Writing the report on a non-notified application
Purpose of the report
The purpose of this report is to advise the decision-maker of all the matters to be considered, thereby enabling them to make an informed judgment on the application.
What to include in a non-notified report
The report needs to assess the application and the supporting Assessment of Environmental Effects (AEE), and include an analysis of the matters required by the Resource Management Act (RMA) and the plan(s). It should include a recommendation as to whether the application should be granted or declined, and if granted, propose any conditions and monitoring.
As with a report on a notified resource consent application, the scope and depth of a report on a non-notified application should reflect the scale and significance of the proposed activity.
Where a comprehensive AEE is provided with an application, has been checked and approved by staff and is not disputed by any affected persons, an audit approach should be taken and this can be referenced in the officer's report to avoid duplication.
Councils may have a set format for writing reports on non-notified consent applications. However, there are examples provided as a basic template to check new or existing formats against, or to adapt particular elements of it.
See Example: Non-notified report for hearing (MS Word 42KB) for non-notified applications going to a hearing.
See Example: Non-notified report (MS Word 29KB) for an application not proceeding to a hearing.
Refer to Auditing Assessments of Environmental Effects - A Good Practice Guide for further guidance on writing a report.
- It is good practice (and courtesy) to call the applicant and discuss the report's contents with them before finalising it, particularly in relation to any proposed conditions of consent that may be of special concern to them or ones that they may not have been anticipating.
- Consider attaching a plan to the report showing those parties who have given written approval and those considered adversely affected.
When should the report be sent out and who to?
If the application is to proceed to a hearing then a report on a non-notified application should be sent to the applicant, and the decision-maker(s), whether it be a hearing committee or commissioner(s).
Section 42A(3) of the RMA requires that the report arrives 5 working days before the hearing commences with the parties it is sent to. This requirement may only be waived if the consent authority is satisfied that there is no material injustice to any person who should have been sent a copy of the report under Section 42A(3).
If a non-notified application is not going to progress to a hearing then there is no need to circulate the report beyond Council Officers unless the applicant requests that they be sent a copy also.
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 5 days before the hearing. This allows all parties to consider the recommendations and assessments made, address them and potentially commission further evidence where required.
Forms and checklists
Example: Non-notified report (MS Word 29KB)
Example: Non-notified report for hearing (MS Word 42KB)
Case law
The following cases contain discussion on non-notified application matters (also see Summary of Case Law on Notification under the RMA):
Gordon v Auckland CC CIV-2006-404-4417 (HC) - s94D enables territorial and regional authorities to include in their plans, rules which expressly provide that applications for restricted discretionary activity do not need to be notified.
Nga Puawaitanga (Meremere) Ltd v Waikato District Council (1998) 4 ELRNZ 480 [1998] NZRMA 529 (HC) – the consent authority has the discretion whether to accept any recommendation of a report compiled under Section 42A of the RMA.
Smith Chilcott v Auckland City Council [2001] 3 NZLR 473;(2001) 7 ELRNZ 126; [2001] NZRMA 503 (CA) - this decision recognises that the use of the permitted baseline comparison must relate to 'credible uses' and not fanciful ones.
Arrigato Investments Limited v Auckland Regional Council RC 11/9/01, CA84/01 - see this decision also for commentary on determining an appropriate permitted baseline comparison.
Videbeck v Auckland City Council High Court M1053-SW/02 - the Council Officer report should record the fact of relevant concerns raised by other parties - otherwise it may be determined that the officer's report is unbalanced and fails to provide all relevant information, which could make the decision relying on that report invalid.
Relevant publications
Getting in On the Act
Published by Ministry for the Environment - June 2006
A short, simple guide on how the Resource Management Act works and how it might affect users.
Conditional Written Approvals - the Problem and Possible Solutions (PDF 329 KB)
Published by Resource Management Law Association of New Zealand Inc - January 2001
This article focuses on the non-notification process of whether an application has had written approvals from parties whom the consent authority considers may be adversely affected. The article outlines the purpose of obtaining written approvals, the form of written approvals, and the problem of conditional written approval. The article also discusses possible solutions such as side agreements and letter of undertaking, and reaching agreements between the two parties.
Auditing Assessments of Environmental Effects: A Good Practice Guide
Published by Ministry for the Environment - March 1999
This guide outlines good practice for regional and district councils in auditing assessments of environmental effects. The Resource Management Act requires each resource consent application to be accompanied by an assessment of environmental effects. Councils need this information to make informed decisions on granting resource consent and setting conditions to control potential effects.
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.
Side Agreements in the Resource Management Consent Process: Implications for Environmental Management
Published by Parliamentary Commissioner for the Environment - January 1998
This investigation examines the environmental implications of agreements made between resource consent applicants and persons having the status of 'affected persons' under the RMA. By enabling applicants to circumvent statutory requirements e.g. public notification, side agreements may result in activities receiving consent without a proper assessment of environmental effects.
Relevant websites
The following are helpful websites that contain information relevant to this guidance note:
The Christchurch City Council website has a guide on 'Resource consent applications - the cost and the process'. This guide has a section on non-notified resource consents, timeframes and a schedule of fees. Go to Christchurch City Council's Resource Management Pamphlets.
The Hastings District Council website has a section on non-notified resource consents, their timeframes and fees. Go to Hastings District Council's Notified and non-notified resource consents.
The Northland Regional Council website has a section explaining non-notified resource consents. Go to Northland Regional Council's Do I need a consent?.
Current challenges in practice
Meeting deadlines for the issue of the decision
When workloads of Council staff are heavy it can be difficult to meet the deadlines for reporting on applications so that the decision can be issued on time. Many Councils have devised ways to combat this by creating pro-forma type reports to suit specific types of applications, for example reports for garage setback non-compliances. This can help to fast track small-scale developments allowing Officers to concentrate more on larger or more complex applications.
Determining who are adversely affected parties
Determining who are the potentially adversely affected parties in relation to an activity is often challenging. In some cases this task is more clear-cut. In other cases careful consideration needs to be given to the actual extent of the effect. When this is the case then it is wise to undertake a site visit and clearly document why you have reasoned the parties as being affected/not affected. Where neighbours have already alerted you to concerns over a proposed development you should be careful to still consider whether or not they are actually affected and record the decision appropriately (see 'To notify or not to notify? That is the question!' for further guidance on this).
