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To notify or not to notify? That is the question!

Abstract

Making a decision on whether an application should be notified, limited notified or non-notified is a very important step in processing a resource consent. This guidance note provides good practice advice about making recommendations and decisions on notification.

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Guidance note

Sections 95 to 95F of the Resource Management Act 1991 (RMA) set out the requirements for notification of a resource consent application.

In accordance with s95A, an application for any type of activity must be publicly notified if:

In addition, the council may choose to publicly notify the application if:

This note covers the following matters:

Definitions relating to notification

Section 2AA of the RMA sets out the definitions relating to notification as they apply to resource consent applications.  Definitions are provided for ‘notification’ in general, and both ‘limited notification’ and ‘public notification’.  An ‘affected order holder’ and ‘affected person’ are also defined with reference to other relevant sections of the RMA. 

Controlled and restricted discretionary activities

When considering the adverse effects of controlled or restricted discretionary activities, any adverse effect of the activity that does not relate to a matter for which a rule or a national environmental standard reserves control or restricts discretion must be disregarded (ss95D(1)(c) and 95E(2)(b)).

For example, a district plan may provide for a wall or fence as a controlled activity subject to design and external appearance only.  Therefore the only matter that needs to be considered when assessing the effects of the proposal is the design and appearance of the wall.  Making such an activity controlled or restricted discretionary recognises that such small-scale activities only generate particular localised effects and do not warrant consideration of all potential effects.

Discretionary and non-complying activities

When considering discretionary and non-complying activities, all adverse effects of the activity can be considered.  Activities classified as discretionary or non-complying are recognised as being capable of generating a wide range of effects and therefore the assessment of effects is not narrowed or limited in any way.

The rules in the plan or national environmental standard

For all activities (except restricted coastal activities) the first step in making a notification decision is to check the rules in the plan and any relevant national environmental standard.

1) When a plan or a national environmental standard includes a rule waiving public notification (but not limited notification), whether the consent is limited notified or not, will depend on an assessment of whether there are affected persons or order holders (s95B):

Making a decision on who is an affected person and/or affected order holder is to be made by the council in accordance with ss95E and 95F respectively.  Guidance on determining affected persons and affected order holders is provided in sections further below.

2) When a plan or a national environmental standard includes a rule waiving limited notification (but not public notification), whether the consent is publicly notified or not depends on an assessment of whether the activity will have or is likely to have effects on the environment that are more than minor (s95D). 
When considering the effects under s95D for the purpose of public notification, the council must disregard any effects on persons who own or occupy the subject site or any land adjacent to the subject site.

It is at council’s discretion to determine which sites are deemed to be adjacent and which parties are affected.  There is no definition of ‘adjacent land’ in the RMA, however further discussion on this issue is provided in the section below - Are the adverse effects minor or more than minor?

However, if there is one or any number of order holders who are considered to be adversely affected, then the application must be limited notified to the affected order holder(s) (s95B(3)).

3) When a rule waives both public and limited notification, the application will be dealt with as non-notified (unless there are affected order holder(s), then the application will need to be limited notified (s95B(3)).

Section 77D authorises that a rule may state whether applications may be decided without public notification under s95A or without limited notification under s95B. However, these rules only apply if:

4) When the rules in the plan are silent as to notification (public or limited), the council will first need to assess whether the activity will have or is likely to have effects on the environment that are more than minor (s95D).  

Overall it is good practice for the processing officer to advise the applicant (verbally or in writing) of an intention to notify in advance of the public notice or serving notice.

There is no requirement for there to be a written report on the notification decision provided to the applicant.  However s35(5)(ga) requires the council to keep records of notification decisions and for these to be publicly available.

See Flowchart for notification decisions on resource consent applications. 

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Restricted coastal activities

In accordance with s117(5), all applications for restricted coastal activities must be publicly notified pursuant to s95A. The application is notified by the regional council if the application is lodged with the council, or by the EPA if the application is a matter of national significance which has been lodged with the EPA. 

A copy of the application must be forwarded to the Minister of Conservation and the relevant territorial authority “promptly” after the receipt of the application (s117(4)).

See flowchart for notification decisions on restricted coastal activity applications.

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Public notification of consent application after request for further information or report

Section 95C states that a council must publicly notify an application if:

Note that the requirement to notify is mandatory if a decision on notification has not been made and that this section overrides any rule or national environmental standard that precludes public or limited notification. 

Refer to the Requesting further information guidance note for more information.

What is the difference between public and limited notification?

For a publicly notified application:

For a limited notified application:

If all affected persons have given their written approval, the council does not need to serve notice on anyone and the application can proceed as non-notified.

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Separate activities or holistic assessment?

For the purposes of notification, councils also have to decide whether to treat a proposal as a number of separate activities ('planning units') or as one overall activity (a ‘bundle’). For example, should an application for earthworks be treated separately from a concurrent application to construct and/or use a building?

An applicant is entitled to apply for separate consents and may have to make separate applications (at least in the case of regional council consents). In some circumstances, a council may decline to process an application until other related applications are made (s91).  

Where more than one activity is involved and those activities are inextricably linked, the general rule is that the activities should be bundled and the most restrictive activity classification applied to the overall proposal.

Splitting the proposal into its separate applications for the purposes of notification and assessment of effects could mean that the council failed to look at a proposal in the whole. Refer to Bayley v Manukau City Council [1999] 1 NZLR 568, [1998] NZRMA 513 (Court of Appeal); Southpark Corporation Ltd v Auckland City Council [2001] NZRMA 350.

King v Auckland City Council [2000] NZRMA 145 (High Court) is an example of a case where the applications for consent overlapped to such an extent that they could not realistically or properly be separated, either for the purposes of notification or for granting consents themselves. 

Important exceptions to the general bundling rule described above are where:

Usually, if one part of a proposal is publicly or limited notified, the other related applications (if they are also before the council) should be dealt with in the same way (refer to Bayley v Manukau City Council).

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Are the adverse effects minor or more than minor?

The following are key issues in determining the extent and magnitude of effects.

The assessment of whether an effect is minor is one of fact and degree. It requires exercising discretion as to the degree of seriousness involved. A minor effect is at the lower end of the scale that includes major, moderate and minor effects, but it must be something more than de minimis. Refer to King v Auckland City Council.

A council can not take into account positive effects from the proposal when considering whether the effects will be minor. It can, however, have regard to any mitigating factors that would eliminate any cause for concern about the possibility of adverse effects, such as extra noise being nullified by additional sound proofing (see Bayley). This can include the consideration of prospective conditions of consent to mitigate effects of the activity which are inherent in the application. Refer to ARC v Rodney DC [2009] NZCA 99.

The council is not entitled to consider the effects of one activity in isolation, where other applications are part of the package. The package can only be split in the limited circumstances mentioned earlier.

The council should look at the overall combined effects of the proposal on the broader environment. It is possible that the council may consider that there are more than minor effects on one neighbour, but in the context of the wider environment those effects are still minor. In such a case, the application would only be limited notified to the affected neighbour. 

There is now a clearer distinction in the RMA between localised effects and effects on the wider environment. Section 95D(1)(a) requires that when deciding if the effects will have or are likely to have adverse effects on the environment that are more than minor for the purposes of public notification, the adverse effects of an activity on the following persons must be disregarded:

This means that an assessment needs to be made by the council as to which properties are considered to be adjacent to the activity or land use.  The term adjacent has a common meaning which is “close to, but not necessarily adjoining another site”. The term adjacent has also been defined in case law as being “lying near or close; adjoining; continuous; bordering; not necessarily touching though this is by no means precluded”. Refer to Mayor Councillors and Citizens of the City of Wellington v Mayor Councillors and Burgess of the Borough of Lower Hutt (1904) AC 773, 775. See also, NJ Buckland and WN McNeil v Rodney DC [1996] RMA 819/95.

When assessing whether an activity will have or is likely to have adverse effects that are more than minor, regard needs to be had to the following:

The following matters should not be considered by the council when assessing whether effects are minor:

Consider developing a checklist for staff in assessing whether effects are minor or not (the questions above could be a starting point). An application could have any number of possible effects. Your checklist will not always be able to cover everything, so think about putting a warning on the bottom to remind staff that the list is not exhaustive.

Under ss95D(1)(e) and 95E(3)(a) the effects on persons who have given their written approval must be disregarded when forming an opinion as to whether adverse effects are minor or more than minor both for public and limited notification, and when the application is considered. Refer to Making a decision on the application.

The council should ensure that it has more than just some material of probative value to be properly satisfied that effects would be minor or more than minor. The council must have adequate information to enable it to:

The information is not required to be all-embracing, but it must be sufficiently comprehensive to enable the council to consider these matters on an informed basis (Westfield (New Zealand) Limited v North Shore City Council [2005] NZSC 17 (SC) (Discount Brands)).
The test on adequacy of information is part and parcel of the decision whether to notify an application, rather than being a preliminary decision (Northcote Mainstreet Inc v North Shore City Council, High Court Auckland, 31 January 2006, Lang J, CIV-2004-404-6062).

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Identifying affected persons

A council must decide if a person is an affected person if the activity’s adverse effects on the person are minor or more than minor (but are not less than minor) (s95E).

The council can disregard only such adverse effects as will certainly be less than minor and those effects that are only a remote possibility.  The council may also disregard an adverse effect if a rule or national environmental standard permits an activity with that effect and in the case of controlled or restricted discretionary activities, where an effect does not relate to a matter over which control or discretion has been reserved.

Potentially adversely affected persons (depending on the nature and scale of the resource consent application – keeping in mind that the effects on persons who own or occupy the subject site and adjacent sites are disregarded in public notification decisions) may include:

Just because some people and organisations may have an interest in a proposal, does not mean that they may be affected.  Some potential adverse effect, of at least a minor nature on a person must be apparent for written approval to be considered necessary. Case law has shown that an affected person is one who is 'affected in a manner different from the public generally'. Being 'interested' in a manner different from the public generally has not been enough.

Adverse effects on persons are broadly conceived and are not limited to direct effects on those who own or occupy land. Persons can also be adversely affected in an environmental sense (ie, indirectly by the proposed activity).

Who is an affected order holder?

Section 2AA defines ‘affected order holder’ as the holder of a customary rights order pursuant to s95F. 
A person is an affected order holder subject to s95F when:

A council must limited notify an application to any affected order holders even if a rule in a plan or national environmental standard precludes public or limited notification (s95B(3)).

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Unreasonable in the circumstances

A person must not be treated as being adversely affected if it would be unreasonable in the circumstances to seek the written approval of that person (s95E(3)(b)). The courts have made no significant comment on when it might be unreasonable to require an applicant to obtain the written approval of all affected persons.

The provision is not intended to authorise the ignoring of people who 'unreasonably' withhold their approval or refuse to participate. It applies where affected persons are not easily contactable or available and do not have an agent who may act on their behalf. Both the applicant and the council need to have made an effort to contact the affected persons and that needs to be documented. Councils should be conservative when using this test as it has implications for public participation in the resource consent process.

Persons who are unavailable will not need to be served with notice of an application. Furthermore, if they are the only persons who would otherwise be affected, or if all other affected persons have given their approvals, the application can be dealt with on a non-notified basis.

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Obtaining the written approval of affected persons

The responsibility for obtaining the approval of affected persons lies with the applicant, not with the council. Nevertheless, it is the council's responsibility to determine who it considers to be affected and to determine whether all such persons have given their approvals, before dispensing with notification.

The council is not expected to investigate the written approvals it receives; however, if the approval is not plain on its face and if what is being applied for is not explicitly identified and agreed to in the approval, the council has a duty to satisfy itself as to what is being approved of and what is not: Troughton, Smith & Thirwell v Western Bay of Plenty District Council (HC, Rotorua, CIV-2003-470-238, 18 February 2004, Keane J). In the Troughton case, the Court found that the council had not satisfied itself that the appellants were approving of the same activity for which consent was being sought and held that the decision not to notify was therefore invalid.

Given there is no longer the need to serve notice on persons who have given their written approval to a limited notified application, councils will need to be vigilant in ensuring that any changes to the application and/or plans throughout the consent process are communicated to those who provided their written approval.  This is especially important given there is the ability for written approvals to be withdrawn.  Council officers should assure themselves that any written approvals provided relate to the proposal under consideration. Should any significant changes be made to the proposal then generally new written approvals are required.

There is no prescribed form for a written approval but many councils have developed their own forms for applicants to use to obtain the written approval of affected persons. See Example: Written approval form (MS Word 26KB).

The form should include the following details:

Signing the actual proposed plans and AEE is important, as sometimes an approval may relate to an earlier version of an application (as outlined above) or to plans that may not have been disclosed to the person. It is also important that the signed plans relate to all aspects of the development which require consent, not just the non-compliances on that neighbour's boundary.

Consider using an aerial photograph to identify the site and properties of potentially affected parties.

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Checking affected persons' approvals

It is important to ensure that the written approvals supplied with an application for resource consent (whether they are on a standard form or not) are complete and adequate. Check the following:

Where there are a number of affected persons, it may help to create a checklist to tick off (for each affected person) whether they are the owner or occupier, or both, whether they signed the plans/AEE, and whether their written approval has been obtained. This information can also be transferred into the decision report.

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What is the permitted activity baseline? (permitted baseline test)

Sections 95D(1)(b) and 95E(2)(a) provide that when determining the extent of the adverse effects of an activity or the effects on a person respectively, a council ‘may disregard an adverse effect if a rule or national environmental standard permits an activity with that effect’.

This is the permitted activity baseline.

The purpose of the permitted baseline test is to isolate and make effects of activities on the environment that are permitted by the plan, or have already been consented to, irrelevant. When applying the permitted baseline such effects cannot then be taken into account when assessing the effects of a particular resource consent application (Queenstown Lakes District Council v Hawthorn Estate Limited (Court of Appeal, CA45/05, 12 June 2006, William Young P, Robertson and Cooper JJ). The baseline has been defined by case law as comprising the 'existing environment' and non-fanciful (credible) activities that would be permitted as of right by the plan in question.

The Court of Appeal in Hawthorn (above) confirmed the distinction between the permitted baseline analysis and the analysis of the receiving environment. The permitted baseline, which applies to permitted activities on the subject site, removes the effects of those activities from consideration under ss95D, 95E and 104(1)(a) of the RMA. The receiving environment (beyond the subject site) is the environment upon which a proposed activity might have effects. It is permissible (and often desirable or necessary) to consider the future state of the environment upon which effects will occur, including:

but not

The 'environment' upon which effects should be assessed is therefore the existing and reasonably foreseeable future environment. In identifying the environment, a council should consider the environment as it is at the time of the application. It should also consider the likelihood of change to that environment in the future, based upon the activities that could be carried out as of right and under resource consents that have been granted (where it is likely that they will be given effect to).

When applying the permitted baseline, a council should first ask what permitted activities would be credible (as opposed to fanciful). In Ohope Beach Development Society v Whakatane District Council (A190/02), the Court found that the baseline comparison for the apartment complex in question included new buildings up to 100 metres square in floor area and to a height of 10 metres. The Court found that such an activity on such a prominent site was so unlikely as to be fanciful.

Other useful examples of the application of the baseline to notification decisions are:

 Points to consider:

There should be a clear determination in the report from the relevant council officer stating the reasons for applying or not applying the permitted baseline. As a matter of good practice all notification decisions should consider whether or not to apply the baseline.

Situations where applying the baseline may not be appropriate include:

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Special circumstances

A council may decide to publicly notify an application if it considers that special circumstances exist, even if the relevant plan or national environmental standard expressly provides that the application need not be publicly or limited notified (S95A(4)).  In effect, special circumstances ‘trumps’ other notification provisions.

Special circumstances have been defined as circumstances that are unusual or exceptional, but may be less than extraordinary or unique (Peninsula Watchdog Group (Inc.) v Minister of Energy [1996] 2 NZLR 529 (Court of Appeal)).

The purpose of considering special circumstances requires looking at matters that are beyond the plan itself (see Murray). The fact that a proposal might be contrary to the objectives and policies of a plan is probably not sufficient to constitute special circumstances (Re. An Application by Trolove (C74/94).

Special circumstances must be more than:

Considering if special circumstances exist may not be mandatory, although there is conflicting case law on this point. The High Court in Serious About Heritage Society Inc v Wellington City Council (HC Wellington, CIV-2003-485-841, 4 June 2003, Young J) appeared to suggest that it is mandatory. Non-consideration of special circumstances would not generally be a ground for judicial review unless it was unreasonable: Heretaunga Residents' Association v Hutt City Council (HC, Wellington, CIV-2003-485-1158, 17 February 2004, Wild J). However, if a council decides not to publicly notify an application the notification report should include an express conclusion that no special circumstances exist (and, where relevant, why).

If the council has concluded that special circumstances do exist it is still at the discretion of the council to publicly notify it. It is recommended good practice that if the council does reach this conclusion then the application is publicly notified.

It is good practice to keep a record of the decision-making process in determining whether special circumstances exist, rather than leaving the matter silent in decision reports. Refer to Official Bay Heritage Protection Society Incorporated v Auckland City Council [2007] CA489/07). Include a statement in your notification decision report indicating your consideration of special circumstances and your conclusion.

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Section 104(3)(d)

Section 104(3)(d) provides that a council must not grant consent to an application that should have been publicly notified and was not.

In Fullers Group Ltd v Auckland Regional Council [1999] NZRMA 439 (Court of Appeal), the Court of Appeal held that when a council is deciding whether to grant consent, it is not under any duty to consider whether the application should have been notified, if that notification decision was considered at any earlier stage.

Nevertheless, a submitter on a limited notified application may be entitled to argue at the council hearing and/or on appeal that the application should have been publicly notified. If the council or Court agrees, it appears they would have no choice but to decline consent in terms of s104(3)(d).

It is also possible to re-notify an application if a notification decision has been made but further information requires this decision to be changed.  Section 104 states that a council cannot grant a decision if an application should have otherwise been notified.

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Documenting the notification decision

The decision whether or not to publicly or limited notify an application, and the reasons for doing so, must be well documented. This documentation should show that the tests set out in ss95A – 95F of the RMA have been met, and should include all those matters that were considered as part of the decision. The council should also document its consideration of whether special circumstances exist in terms of s95A(4).

If the process is not properly documented there is a higher risk of a successful judicial review as judicial reviews focus on failures in process. The Court has held that failure to both properly document a decision and provide reasons are errors of law: Heaney, Bates & Takatu Environmental Protection Society v Rodney District Council (HC, Auckland, CIV-2003-404-003480, 16 March 2004, Gendall J).

On judicial review, the Court will scrutinise the material that was before the council at the time of the notification decision to determine whether there was an adequate basis for the decision (Discount Brands).

A report on notification should address the following questions:

The consideration and decision on each of the above issues (where relevant) should be clearly recorded for each application. Notification decisions should be kept separate from the substantive decision, even if they are within the same document. However, common matters may be cross-referenced.

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Forms and checklists

Example: Notification report (MS Word 43KB)
Example: Written approval form (MS Word 26KB)

Case law

The following cases contain discussion on notification decision matters (also see Summary of Case Law on Notification under the RMA). However, these cases occurred before the RMAA09 when the presumption and threshold for notification changed, some of these cases may no longer be entirely relevant:

Mayor Councillors and Citizens of the City of Wellington v Mayor Councillors and Burgess of the Borough of Lower Hutt (1904) AC 773, 775 – definition of adjacent land.

NJ Buckland and WN McNeil v Rodney DC [1996] RMA 819/95 – definition of adjacent land.

Rea v Wellington City Council CIV-2007-485-0162 (HC) – this was an application for judicial review of a decision by council to grant non-notified resource consent. The council had concluded that several effects were de minimis. The Court considered that under s93, 'minor' does not mean the same as ‘de minimis' and that the council mistakenly regarded these terms as interchangeable, and that the council could not be satisfied that there would be a de minimis adverse effects as a result of the proposal. The council decision was quashed and the council was directed to reconsider the matter.

Royal Forest and Bird Protection Society of New Zealand Incorporated v Kapiti Coast District Council [2009] NZSC 61 – Unsuccessful appeal by RFBPSNZI to the Court of Appeal decision regarding application of s94A(c) of the RMA.  The Kapiti District Council issued a subdivision consent on a non-notified basis.  The land is adjacent to Department of Conservation (DOC) land and DOC had given written approval to the subdivision. The Court of Appeal found that where land has wider and more significant environmental importance in terms of Part 2 of the RMA, then it is inappropriate to treat the owner as the sole arbiter of effects on that site. While the effects on DOC could be disregarded, the effects on the reserve itself were also to be considered.  The Court of Appeal found that the council had considered the application on such a basis.

Dury v Palmerston North CC [2008] NZSC 17 – when evaluating reasonableness of the council's decision not to notify, evidence of what had occurred since the grant of consent is not relevant.

Central Plains Water Trust v Synlait Limited [2009] NZCA609 – successful appeal by CPWT against the High Court decision which found Synlaits resource consents applications for water takes had priority over theirs.  The Court found that determining priority between competing applications is not determined by which one is first ready for notification, but rather by which applicant first files a complete application. 

Spackman v Queenstown Lakes District Council [2007] NZRMA 327 (HC) – there is a clear distinction between a positive opinion by the council that it 'is satisfied' as to adverse effects of the activity on the environment under s93(1)(b), and an opinion that persons 'may be' adversely affected by the activity.

Queenstown Lakes District Council 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 Regional Council A041/07 (HC).

Northcote Mainstreet Inc v North Shore City Council [2006] NZRMA 137 (HC) – the test in Discount Brands is still valid. The information needs to be sufficiently comprehensive and reliable to enable the authority to consider its decision on an informed basis.

Anchor Trustees Ltd v Thames-Coromandel District Council CIV-2005-419-943 (HC) – failure by a council to investigate whether neighbouring properties might suffer adverse effects that were more than minor may invalidate a decision not to notify.

Westfield (New Zealand) Ltd v North Shore City Council [2005] 2 NZLR 597 (SC)(the Discount Brands litigation) – information must be sufficient for a council to be satisfied (on an informed basis) that an application need not be notified.

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Relevant publications

Getting in On the Act
Published by Ministry for the Environment – Updated December 2009
A short, simple guide on how the RMA works and how it might affect users.

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.

Resolving Resource Management Act Concerns
Published by Ministry for the Environment – Updated December 2009
A guide to which agencies do what in relation to the RMA and where you should take your particular concern.

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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Current challenges in practice

Determining whether the potential adverse environmental effects are less than minor, minor, or more than minor

Determining whether the potential adverse environmental effects of a proposal are less than minor, minor, or more than minor, is perhaps the most challenging task undertaken when considering an application for resource consent. In a number of cases the determination may be simple because the magnitude of the effects is relatively small or considerably large. However, there are numerous proposals which fall between these two scenarios that require diligent consideration as to the nature and scale of effects. Often this consideration may not be assisted by the quality of the application.

It is important that council officers ensure an application provides adequate information at the outset and have resources available to them to allow specialised guidance where required.  This is even more important given the restriction on the number of times the processing clock can be stopped for further information requests.

It may also be helpful to ensure that council staff are well versed in the effects of new activities that may become popular within an area. Ideally this should occur either before such activities are applied for or when they are first applied for, for example, marine farms in a region where they have not been established previously. Changes in technology which may also have a significant bearing on the effects of some activities should also be recognised by councils where they relate to existing or new uses. It may be helpful to retain good communication links with industry organisations or associations to keep this knowledge current.

Identifying who the potentially adversely affected parties are

Identifying affected parties is not always an easy task and can be disputed by applicants. In some cases the decision is clear-cut, while in other cases the decision between obtaining one person's approval and potentially not another can be extremely difficult to make.

Over time councils generally build up a list of scenarios where particular parties, such as neighbours are recognised as being affected, which is particularly helpful to new officers. A general rule of thumb is that if there is any uncertainty at all about the level of effect that might be inflicted on a party, and if there is any sort of potential that they might experience a minor level of adverse effect, then a cautious approach is recommended.

In practice it can also be difficult to actually ascertain the correct names of the owners or occupiers of a property, particularly given the need to protect the privacy of individuals. This can be a frustrating and time consuming task but one in which applicants really rely on the council to provide correct identification. Correct identification is a critical part of the process and where council records can not be relied upon then efforts must be made to undertake title (computer register) searches where required. Council administration staff should be provided with the technology and training to quickly and efficiently undertake these tasks.

Recording notification and non-notification decisions

Sometimes decisions on notification, non-notification and identification of affected parties are not formally recorded. This can lead to problems later where a party disputes the decisions made under ss95A-95F. Where no reasoning can be easily explained, councils can be more open to judicial review. To avoid this occurring, it is strongly recommended that the decisions are documented and filed as a record with the relevant application. The courts have stated that not to do so is an error of law (See Heaney, Bates & Takatu Environmental Protection Society v Rodney District Council (HC, Auckland, CIV-2003-404-003480, March 2004). Peer review and quality assurance of such decision records are also recommended.

Deciding when special circumstances exist to warrant notification

It is challenging in some cases to decide on the issue of special circumstances, particularly when there is considerable pressure from the public to do so for a controlled or restricted discretionary activity in what could be a high profile location. Once again, councils need to be particularly vigilant when determining whether special circumstances exist and that the determination and reasoning is clearly and properly recorded. In such cases, the council may wish to set some guidelines as to when special circumstances exist so that officers have a benchmark from which to take guidance.

This guidance note was updated by Greg Lee from Beca Planning, and Vicki Barker and Sarah Myhill at the Ministry for the Environment in March 2010.