Advance to content | List of Access Keys |

Within this page

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

Abstract

To notify or not to notify? Making a decision on whether an application should be notified, non-notified or notified on a limited basis (limited notification) is a very important step in processing a resource consent. This Guidance Note provides good practice advice about making recommendations and decisions on notification.

back to top

Guidance note

Sections 93 to 95 of the Resource Management Act 1991 (RMA) set out the requirements for notification. With the exception of controlled activities, the presumption is that an application will be publicly notified in accordance with s93 unless the criteria for limited notification or non-notification are met.

An application for any type of activity must be publicly notified if the applicant has requested it. Also, if there are special circumstances then the council may choose to publicly notify the application regardless of any other matters. This note covers the following matters:

Controlled activities

Section 93 of the RMA provides that controlled activities are not publicly notified unless a rule in the plan specifically requires them to be publicly notified. For controlled activities first check the rules in the plan:

  1. When a rule in the plan requires public notification, the application must be publicly notified.
  2. When a rule in the plan waives service of the application, the application will be dealt with as non-notified.
  3. When the rules in the plan are silent on notification and service, the council still needs to assess whether there are any affected persons.

See flowchart for notification decisions on controlled activity applications.


back to top

Restricted discretionary activities

The starting point for restricted discretionary activities is also the rules in the plan.

A) When a plan includes a rule waiving notification (but not service), the application will either be notified on a limited basis or non-notified depending on an assessment of whether there are affected persons:

B) When a rule waives both notification and service of the application, the application may be dealt with as non-notified. Section 77D authorises that the rule may state whether applications for the activity may be decided without notification under s93 or without service under s94(1). This is only if the applicant does not request notification, and the council does not deem special circumstances to exist.

It is good practice that a record be kept of the decision process in determining whether special circumstances exist, rather than leaving the matter silent in decision reports. See Official Bay Heritage Protection Society Incorporated v Auckland City Council [2007] CA489/07).

C) When the rules in the plan are silent as to notification and service, the council will first need to assess whether the effects of the activity are minor.

See flowchart for notification decisions on restricted discretionary activity applications.

back to top

Discretionary and non-complying activities

All applications for discretionary and non-complying activities must be publicly notified unless the council is satisfied that the adverse effects of the activity will be minor:

See flowchart for notification decisions on discretionary and non-complying activity applications.

 

back to top

Restricted coastal activities

In accordance with s117(3), all applications for restricted coastal activities must be publicly notified pursuant to ss93(2) and 95. A copy of the application is also forwarded to the Minister of Conservation on receipt "without delay" and to the appropriate territorial authority (s117(1)).

See flowchart for notification decisions on restricted coastal activity applications.

back to top

What is the difference between public notification and service?

For a publicly notified application:

For a limited notified application (or service of notice):

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.

back to top

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. 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 a consent until other related applications are made (s91).

Where more than one activity is involved, the general rule is that the most restrictive activity classification applies to the overall proposal. The applications are 'bundled' rather than split.

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. See 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 rule described above are where:

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

back to top

Are the adverse effects minor or more than minor?

The following are key issues in determining the extent/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. See 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. See 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, therefore, that the council may consider that there are more than minor effects on one neighbour, but that in the context of the wider environment those effects are still minor. Caution is required since the RMA does not distinguish between local effects and wider effects. Nevertheless, it does distinguish between whether the adverse effects on the environment are minor and whether there are adverse effects on persons.

It may be relevant when assessing whether effects are minor to have regard to:

The following matters should not be considered by the council when assessing whether effects are minor, because they are not effects on the environment:

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.

Where there is any real doubt whether a development would have more than minor effects, a precautionary approach should be adopted and the doubt should be resolved in favour of the environment by requiring notification (Progressive Enterprises Ltd v North Shore City Council [2006] NZRMA 72 (HC)).

Under ss94A(c) and 104(3) 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 notification and when the application is considered [refer to Making a decision on the application].

Where effects on a neighbour will be more than minor (eg, privacy effects) and that neighbour has given his or her approval, that will not necessarily mean that effects on the environment are more than minor for the purpose of s94A. See Royal Forest and Bird Protection Society of New Zealand v Kapiti Coast DC [2009] NZCA 73.

The council should ensure that it has more than just 'some material of probative value' 'to be properly satisfied that effects would be 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 consent authority 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).

back to top

Identifying affected persons

In identifying affected persons, a council must consider whether there is any adverse effect from the proposal that may affect any person. The council can disregard only such adverse effects as will certainly be nil, de minimis (ie, trivial - even less than minor), and those effects that are only a remote possibility (Bayley v Manukau City Council; Barrett v Wellington City Council).

In Rea v Wellington City Council, the decision describes de minimis as being "so trifling that the law should regard it as of no consequence" and notes that it is a much more stringent test than whether the adverse effect is minor. In this case the Court held that the Council's decision not to notify an application be quashed as the Court considered that the effects of the proposal were more than de minimis. Therefore care should be exercised when deciding that any effect is de minimis, and should be used sparingly.

Potentially adversely affected persons (depending on the nature and scale of the resource consent application) may include:

Just because some people and organisations may have an interest in a proposal, does not mean that they may be affected. Some form of potential adverse effect 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. This needs to be considered against the Court of Appeal 's reiteration of the fact that the resource consent process is to be public and participatory and that care must be exercised before removing those participatory rights (see Bayley).

A notification decision is a significant decision with natural justice implications for participation in the consent and appeal process, so a council needs to be cautious.

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. Furthermore a body of persons may be adversely affected if one of its members has a relevant proprietary interest. See the Supreme Court decision in Discount Brands andNorthcote v North Shore City Council.


back to top

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 (s94B(3)(c)). 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.

back to top

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 service (limited 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.

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 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.

back to top

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, etc. This information can also be transferred into the decision report.

back to top

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

Section 94A(a) provides that a council 'may disregard an adverse effect of the activity on the environment if the plan permits an activity with that effect'.

Section 94B(3)(a) provides that a person 'may be treated as not being adversely affected if, in relation to the adverse effects of the activity on the person, the plan 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. 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 ss94A(a) 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. It is probably mandatory to consider whether or not to apply the baseline.

Situations where applying the baseline may not be appropriate include:

back to top

Special circumstances

A council may decide to notify an application if it considers that special circumstances exist, even if the relevant plan expressly provides that the application need not be publicly notified and/or served.

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 notify it. It is recommended good practice that if the council does reach this conclusion then the application is publicly notified.

Include a statement in your notification decision report indicating your consideration of special circumstances and your conclusion.

back to top

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 notification 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).

back to top

Documenting the notification decision

The decision whether or not to publicly notify or serve an application, and the reasons for doing so must be well documented. In the case of a decision not to notify and/or not to serve, this documentation should show that the tests set out in s93(1) and/or s94(2) of the RMA have been met, and should include all those matters that were considered as part of the decision. These should be consistent with ss94A and 94B. The council should also document its consideration of whether special circumstances exist in terms of s94C(2).

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.

back to top

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):

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 v Kapiti Coast District Council [2009] NZCA 73 - Kapiti District Council issued a subdivision consent on a non-notified basis. The land is adjacent to Depatment of Conservation (DoC) land and DoC had given written approval to the subdivision. The Court 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.

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 Ngai Tahu Properties Limited [2008] NZCA 71 - an application for resource consent to take water which, although requiring water use applications could not, as filed, be rejected as a nullity, takes priority over a competing application (note: subject to Supreme Court appeal to be heard October 2008).

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 of adequacy or sufficiency of information on which a consent authority could make a non-notified decision is not affected by the 2003 amendments. 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 CouncilCIV-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 consent authority to be satisfied (on an informed basis) that an application need not be notified.

back to top

Relevant publications

Getting in on the Act
Published by Ministry for the Environment - November 2009
A short, simple guide on how the Resource Management Act 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 - June 2006
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.

back to top

Current challenges in practice

Determining whether the potential adverse environmental effects are minor

Determining whether the potential adverse environmental effects of a proposal are 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 which require diligent consideration as to the nature and scale of effects. Often this consideration may not be assisted by the quality of the application.

Therefore 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. 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 ss93 and 94. 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 thoroughly 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 say 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 in July 2009.