Non-notified resource consents

Abstract

Non-notified resource consent applications follow a shorter and simpler process than notified applications. This guidance note addresses how this process works and provides best practice advice on preparing section 42A officer reports for non-notified applications.

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

Guidance note

What are non-notified resource consent applications?

Non-notified resource consent applications are those applications that are not publicly or limited notified. They are applications where the council has decided that the proposed activity, or a requested change or cancellation of an existing resource consent condition:

will not have, or is not likely to have more than minor adverse effects on the environment (in accordance with s95D);

and

a rule of a plan or national environmental standard does not require notification

and either:

no parties are considered adversely affected; or
all parties considered to be adversely affected have provided their written approval.

See the To notify or not to notify? That is the question! guidance note for more information.

For the purposes of public notification, when considering whether the adverse effects of an activity will be or are likely to be more than minor, any effects on persons who own or occupy the subject site or any land adjacent to the subject site must be disregarded (s95D(a)).

When deciding if a person is an affected person, s95E states that an affected person must be adversely affected in a way that is minor or more than minor.

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 (AEE), the council 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 to be, or are likely to be, more than minor and these effects do not only fall on the site on which the activity will take place and any adjacent sites, the application needs to be publicly notified. If the adverse effects are considered to be minor or more than minor, but these effects are only felt by the owners and occupiers of the site on which the activity will take place or adjacent sites, the application can be considered on a non-notified or limited notified basis.

An application can be considered on a non-notified basis if the written approval of all adversely affected parties is obtained or no party is adversely affected and the proposal will not have, or is not likely to have more than minor adverse effects on the environment.

This means that in some cases the council may decide that the adverse effects are less than minor in scale and there are no adversely affected parties. Therefore, no written approvals are required for the application to be processed on a non-notified basis. However, if any parties deemed to be affected by the council do not provide their written approval then the application must follow the limited notified process. See the To notify or not to notify? That is the question! guidance note for more information.

Plans or a national environmental standard may contain provisions about whether affected parties are required to provide their written approval. This is usually in relation to controlled or restricted discretionary activities, which also often have limited and or predictable effects.

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. Non-notified applications generally do not require a hearing. However, sometimes a hearing may be required where the applicant asks for one. At other times, a hearing may be required if the council considers it appropriate that the application be heard for a particular reason (ie, when the applicant and council cannot agree on the conditions of the consent or where it is recommended that the consent be declined).

The council can delegate the approval of non-notified applications to officers or officer committees.

See the flow diagrams in the To notify or not to notify? That is the question! guidance note regarding the process that non-notified applications go through when compared to notified applications.

It is good practice when deciding who may be affected to consider the effect that a permitted activity would have on the same parties. This is called the permitted baseline test and it can be used to consider those effects above those of a permitted activity. The council needs to decide if the permitted baseline is relevant or not and it does not always have to be used. For more on how and when to consider the permitted baseline see the To notify or not to notify? That is the question! guidance note.

What time frames apply?

The time frames for processing an application are shown in the flowcharts linked below:

Writing the report on a non-notified application

Purpose of the report

The purpose of this report is to show the reasoning why a certain decision has been or should be made. The report should include all the relevant matters and assessments under all the appropriate sections of the RMA and the relevant plans.

What to include in a non-notified report

The report needs to assess the application and include an analysis of the matters required by the RMA and the relevant policy statements and plans. It should include a recommendation or decision regarding whether the application has or should be granted or declined, and if granted, propose any conditions that may be required to mitigate, remedy or avoid effects. For more information on conditions see the Conditions of a resource consent guidance note.

The scope and depth of a report on a non-notified application should reflect the scale and significance of the environmental effects of the proposed activity.

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. This will help to avoid unnecessary duplication.

Councils may have a set format for writing reports on non-notified consent applications. Basic templates are provided below, which can be used to compare existing or new formats, or particular elements of these can be adapted and used.

See Example: Non-notified report (MS Word 29KB) for an application not proceeding to a hearing.

See Example: Non-notified report for hearing (MS Word 42KB) for non-notified applications going to a hearing.

It is good practice and courteous 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 that they may not have been anticipating. It may also be appropriate to send the applicant the draft report and conditions for comment.

Consider attaching a plan to the report showing those parties who have given written approval and those considered adversely affected.

If the report is a decision report (ie, the person writing the report also has delegated authority to make the decision) then there are different requirements for this. If the decision report is the only report prepared in relation to the consent, it may be appropriate to combine the requirements of a report and a decision report to ensure that all the necessary information is included. Refer to the Making a decision on the application guidance note for more information on the requirements of a decision report.

When should the report be sent out and who to?

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 a copy is requested by the applicant or another party.

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 arriveswith the parties it is sent to five working days before the hearing begins (or 15 days before the hearing if the pre-provision of evidence is required under s41B). This requirement may only be waived if the council is satisfied that there is no material injustice 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.

Forms and checklists

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 City Council CIV-2006-404-4417 (HC) - s94D enables councils to include rules in their plans 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 council has the discretion whether to accept any recommendation of a report compiled under s42A 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 for commentary on determining an appropriate permitted baseline comparison.

Videbeck v Auckland City Council High Court M1053-SW/02 - the council officer 's 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

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 presents a simple explanation of the RMA legislation, the processes it has established, and how people can use it to pursue their interests.

Getting in On the Act
Published by Ministry for the Environment - updated November 2009
A short, simple guide on how the RMA 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 and 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 AEEs. The RMA requires each resource consent application to be accompanied by an AEE. Councils need this information to make informed decisions on granting resource consent and setting conditions to control potential effects.

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 (eg, 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, time frames 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 time frames 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 resource consent?

Current challenges in practice

Meeting deadlines for the issue of the decision

When council staff workloads are heavy it can be difficult to meet the deadlines for reporting on applications so 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 fast track small-scale developments allowing officers to concentrate on larger or more complex applications.

The issue of meeting deadlines has become increasingly important in light of the discount policy under s36AA. S36AA introduces a policy requiring all councils to give a discount on the processing fees for consents if they are found to be responsible for the consent not being processed within the time frames set out in the RMA. This will be introduced by way of regulation by July 2010. Alternatively, a council may adopt their own policy if it is more generous (also by July 2010). For more information refer to a summary of the discount policy on the MfE website.

Identifying adversely affected parties

Identifying 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 and potential extent of the effect. When this is the case it is wise to revisit the site 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 (in a resource management sense) and record the decision and any discussions with the neighbours appropriately (see the To notify or not to notify? That is the question! guidance note for further guidance on this).

The RMAA 2009 has also changed the threshold for considering a party to be adversely affected. Now a party needs to be affected by an activity in a minor or more than minor way to be considered adversely affected.

This Guidance Note was updated in November 2009 by Ministry for the Environment.

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