Making a decision on the application
Sections 104 to 116 of the Resource Management Act 1991 (RMA) regulate the determination and issuing of resource consent decisions. This guidance note provides information on how to make and notify a decision and outlines objection and appeal procedures.
- Section 104 – Matters to be considered
- Sections 104A-D - decisions on applications
- Sections 105 and 107 - decisions on discharge and coastal permits
- Section 106 - decisions on subdivisions
- What to include in a decision
- Quality assurance
- Notification of the decision
- Objections to decisions
- Appeals to the Environment Court on decisions
Section 104 of the RMA sets out the principal matters, subject to Part 2, which a council must have regard to (and other matters it must disregard) when considering an application for resource consent and any submissions received.
Matters to be considered include:
- any actual and potential effects on the environment
- any relevant provisions of a national environmental standard, other regulations, a national policy statement, a New Zealand coastal policy statement
- any relevant provisions of an operative or proposed regional policy statement or any proposed or operative plan
- any other matter the council considers relevant and reasonably necessary to determine the application
- the value of the investment of the existing consent holder when considering an application affected by s124 (exercise of resource consent while applying for new consent).
A council may disregard an adverse effect of an activity on the environment if the plan or a national environmental standard permits an activity with that effect (s104(2)).
Section 104(3) sets out what the council must not do when considering an application:
- have regard to trade competition or the effects of trade competition
- have regard to any effect on a person who has given written approval to the application, unless the approval is withdrawn in writing before the hearing or determination of the application
- grant a consent contrary to the provisions of any of the following:
- s107 (restriction on grant of certain discharge permits)
- s107A (restrictions on grant of resource consents)
- s217 (effect of water conservation order)
- an Order in Council in force under s152
- any regulations
- wāhi tapu conditions included in a customary marine title order or agreement
- s55(2) of the Marine and Coastal Area (Takutai Moana) Act 2011.
- grant a consent if the application should have been notified and was not.
Also, councils must not grant consent for a prohibited activity or a subdivision consent where the circumstances set out in s106 cannot be reconciled.
Councils may decline an application on the grounds it has inadequate information to determine the application (s104(6)). When making an assessment on the adequacy of the information, a council must have regard to whether any further information or report(s) requested were provided by the applicant.
Case law has determined that subject to Part 2 of the RMA, s104(1) does not elevate any of the matters in s104(1) to a primary status, however matters can be given weight as the council sees fit in the circumstances.
Sections 104A to 104D set out the circumstances in which a council may/must grant or refuse consent, with reference to the type of activity for which consent is sought. Under each of these sections the manner of any grant or refusal is:
- Section 104A - Controlled activities
A council must grant this type of application unless it has insufficient information to determine that the activity is controlled. The council may impose suitable conditions in relation to those matters over which control is reserved as set out in its plan or proposed plan, or reserved in any national environmental standards or other regulations.
- Section 104B - Discretionary and non-complying activities
A council may grant or refuse this type of application; and may impose conditions if it chooses to grant it.
- Section 104C - Restricted discretionary activities
A council may grant or refuse this type of application, but must only consider the activity based on the matters to which it has restricted the exercise of its discretion under its plan or proposed plan, and in national environmental standards or other regulations. If a council chooses to grant consent, then conditions can only be imposed in relation to those matters over which discretion has been restricted in the plan or proposed plan, national environmental standards or regulations.
- Section 104D - Particular restrictions for non-complying activities
When dealing with non-complying activities, before granting an application a council must be satisfied that either the adverse effects of the activity on the environment will be minor (s104D(1)(a)), or the proposed activity will not be contrary to the objectives and policies of a proposed plan and/or plan (s104D(1)(b)).
This consideration for non-complying activities is commonly known as the 'threshold test ' or the 'gateway test '. If either of the limbs of the test can be passed, then the application is eligible for approval, but the proposed activity must still be considered under s104. There is no primacy given to either of the two limbs, so if one limb can be passed then the 'test ' can be considered to be passed.
Section 105 requires councils to have regard to the following matters when considering a discharge or coastal permit application which will contravene s15 or s15B of the RMA:
- the nature of the discharge and the sensitivity of the receiving environment to adverse effects; and
- the applicant's reasons for the proposed choice; and
- any possible alternative methods of discharge, including discharge into any other receiving environment; and
- if the application is for a resource consent for a reclamation, the council must also consider whether an esplanade reserve or strip is appropriate.
These matters are in addition to the matters listed in s104(1) which a council must take into consideration before making a determination.
Section 107 states that councils shall not grant a discharge or coastal permit allowing the discharge of a contaminant or water if it is likely to give rise to all or any of the following effects in the receiving waters:
- the production of any conspicuous oil or grease films, scums or foams, or floatable or suspended materials
- any conspicuous change in the colour or visual clarity
- any emission of objectionable odour
- the rendering of fresh water unsuitable for consumption by farm animals
- any significant adverse effects on aquatic life.
Where a proposal results in the above effects, consent may be granted if a council is satisfied that the proposal is consistent with the purposes of the RMA and:
- exceptional circumstances exist, or
- the discharge will be temporary, or
- the discharge is associated with necessary maintenance work
Conditions can be imposed which require the permit holder to undertake work in stages throughout the term of the permit.
Section 106 requires councils to consider the following matters in deciding on a subdivision consent application:
- the land or any structure on the land likely to be subject to material damage by erosion, falling debris, subsidence, slippage, or inundation from any source
- any subsequent use that is likely to accelerate, worsen, or result in material damage to land or structures by erosion, falling debris, subsidence, slippage, or inundation from any source
- whether sufficient provision has been made for legal and physical access to each lot created by the subdivision.
Following consideration of these matters, a council can either refuse or grant the application subject to conditions. Conditions can only be imposed in order to remedy, avoid or mitigate effects from the above list and must be in accordance with s108.
The Marine and Coastal Area (Takutai Moana) Act 2011 and customary rights groups
In accordance with s55(2) of the Marine and Coastal Area (Takutai Moana) Act 2011 (MCAA), a council must not grant an application for a resource consent (including a controlled activity) to be carried out in a protected customary rights area if the activity will have, or is likely to have, more than minor adverse effects on the exercise of the protected customary right, unless the protected customary rights group has given its written approval for the proposed activity, or the activity is one of the exceptions listed.
The exceptions are listed in s55(3) of the MCAA. In summary the activities that are exempt are:
- coastal permits for existing aquaculture activities to continue to be carried out (as long as there is no increase in area or change in location)
- applications for emergency activities under s330A of the RMA
- applications for existing accommodated infrastructure (within the meaning of s63 of the MCAA)
- applications for deemed accommodated activities (within the meaning of section 65(1)(b)(i) of the MCAA.
Schedule 1 of the MCAA outlines what needs to be considered when deciding whether a protected customary rights group is affected by an application. This list could also be used as the basis for a decision regarding whether or not the application would have effects that are more than minor on the exercise of the protected customary right.
For more information on the MCAA and how it should be implemented by councils refer to the Ministry of Justice’s note Provisions for Protecting Customary Interests: Information for local government
Section 113 requirements
Section 113 of the RMA sets out certain matters that must be covered in writing decisions on resource consent applications.
It is important to note that s113 sets out what content is required in decisions and makes a distinction between notified and non-notified applications. Section 113 does not specify a particular structure or order for presenting the content in the decision.
For non-notified applications, every decision must be in writing and state the reasons for the decision (s 113(4)).
For notified applications (publicly and limited)
(1) Every decision on an application for a resource consent that is notified shall be in writing and state-
(a) the reasons for the decision
(aa) the relevant statutory provisions that were considered by the consent authority
(ab) any relevant provisions of the following that were considered by the consent authority:
(i) a national environmental standard:
(ia) a national policy statement:
(ii) a New Zealand coastal policy statement:
(iii) a regional policy statement:
(iv) a proposed regional policy statement:
(v) a plan:
(vi) a proposed plan; and
(ac) the principal issues that were in contention; and
(ad) a summary of the evidence heard; and
(ae) the main findings on the principal issues that were in contention
(b) in a case where a resource consent is granted for a shorter duration than specified in the application, the reasons for deciding on the shorter duration.
(2) Without limiting subsection (1), in a case where a resource consent is granted which, when exercised, is likely to allow any of the effects described in section 107(1)(c) to (g), the consent authority shall include in its decision the reasons for granting the consent.
A checklist is a useful tool to ensure these matters are included and considered when drafting decisions. Such a checklist should be tailored to the different requirements of s113 for notified and non-notified decisions. Decision report templates may also be used to ensure these matters are included in the decision.
Section 113(3) states that decisions on notified applications may cross-reference to all or part of:
- the assessment of environmental effects (AEE) provided by the applicant:
- any report prepared under ss41C, 42A or 92; or
- adopt all or part of the AEE or report and cross-refer to the material accordingly.
The ability to adopt and/or cross-reference material that the reporting officer agrees with can avoid duplication and speed up the reporting process.
Notwithstanding the requirements of s113, there are general principles that should underlie the drafting of every written decision.
The principles are set out below and are presented in no particular order of importance. The principles have been developed from the perspective of the end user (such as the applicant, submitters, or council staff not involved in processing the application), who may not always have an intimate knowledge of the RMA and its processes.
Structure & Appearance
Principle 1: Ensure a professional appearance
The finished decision document must have a professional appearance befitting of the time, effort and expense that the parties have gone to and its status as an important legal document. A professional appearance can be achieved by ensuring:
- the decision is on council letterhead
- formatting is consistent throughout the document
- there are no obvious spelling or grammatical errors (including ensuring names of parties and hearing participants are spelt correctly)
- the decision has numbered pages
- consent conditions are correctly numbered
- the decision has been signed and dated by the decision-maker.
Principle 2: Provide the decision at the start
The majority of consent decision readers want to know immediately the overall consent decision, in terms of either the granting or refusing of consent. This should be provided at the outset, in bold.
Principle 3: Use a logical structure that supports a fluent argument
The finished decision document should be expressed in a fluent manner from start to finish. It should have a logical structure and sequence that supports a flow of argument; one that enables the reader to easily understand the reasons for the decision.
Decisions on notified applications need not follow the sequence of matters as set out in section 113(1) (which relate to the required content for notified decisions). No one single structure or template fits all decisions. However, fluency can be enhanced through the use of descriptive headings and by avoiding the use of large sections of unbroken text. Descriptive headings can help a reader know where they are in a document. A contents page should be used for lengthier decisions.
Content (in no particular order)
Principle 4: The decision length and level of detail should reflect the complexity of application
As a general principle, the length and amount of detail of a written decision should reflect the complexity of the issues raised by the application and the number of participants involved in the hearing (where one is held).
Written decisions should be as succinct as possible and for non-notified decisions this may equate to a concise set of bullet points outlining the reasons for the decision
Principle 5: The written decision should endure over time and involvement
The final written decision should be able to be picked up in five years' time (the normal consent duration) by someone who was not involved in the application or hearing, and be clearly understood. A decision writer should be mindful to record or refer to in the decision any assumptions or knowledge they have that are relevant to the decision, and that may not be immediately apparent in five years' time when the consent may be given effect to.
Principle 6: Be mindful of scope
The final written decision must be worded so that it does not grant consent for an activity greater in scope than that requested in the resource consent application. Similarly, conditions must not extend the scope of the consent or the way in which it is exercised. The written decision must be within the confines of the application, and advice notes must not cover matters that should be conditions of consent.
Principle 7: Provide reasons for the decision
The written decision should give clear reasons why the consent has been granted or refused. The decision must provide a clear overall evaluation, in which a conclusion is reached with reference to the scale and significance of effects and relevant statutory and plan provisions. They must enable the decision reader to understand why the matter was decided as it was and what conclusions were reached on the key issues.
Specific reference should be made to Part 2 of the RMA; in other words, whether the sustainable management purpose of the RMA will be better addressed by granting consent (subject to conditions) than by withholding consent.
Reasons can be briefly stated; the degree of particularity required depending entirely on the nature of the issues being decided. The reasons need not repeat earlier statements but it may be useful to link to a discussion on the principal issues in contention or the main findings on the principal issues in contention, particularly for notified decisions.
It may be appropriate to include reasons for the imposition of certain conditions where this is not immediately apparent. Such reasons can follow the individual conditions to which they relate, or can be referred to in the reasons for the decision (where they relate to the discussion on the avoidance, remedy or mitigation of particular adverse effects - see principle 12 below).
In a case where a resource consent is granted for a shorter duration than specified in the application, the reasons for deciding on the shorter duration should be included.
Principle 8: Include the basic application details
A written consent decision must clearly state:
- the basic application details, which includes the consent number(s)
- the property address and legal description
- consent status of the activity for which consent is required
- the file reference(s)
- the date the decision was made
- the date the consent expires or lapses.
It may also be useful for the decision to record:
- a brief description of the existing environment
- the date(s) of the hearing (if held)
- site visit(s) (when undertaken, who present)
- who or what hearing entity or council has made the decision.
Principle 9: Take ownership of decision
The written expression of the decision should be that of the decision-maker(s), so they should take ownership of its content and be confident in the final wording and able, if necessary, to defend the decision. The decision should make reference to the decision-maker whether this is an officer with delegated authority, a sole commissioner or a hearing panel (where the members should be referred to and the decision should be signed by the chair).
Principle 10: Use plain English
Good decision writing will result in a simple, concise, well-reasoned and easily comprehensible explanation of why the decision was made. The tone, grammar and flow of the written decision must be appropriate for the audience (ie, the applicant and submitters and members of the general public), and should be written using plain, simple English. Having said this, it is not necessary to simplify or substitute terms or definitions used in the RMA.
Principle 11: Ensure consistency of expression
Terms or people must be referred to consistently throughout the written decision document. For example all submitters should be addressed consistently, either with or without a Mr, Mrs or Ms before their name. Excessive use of abbreviations should be avoided. Where abbreviations or terms such as "the Act" are used, these should be expressed in full at their first use.
Principle 12: Keep the decision effects-focused
The written decision should reflect the effects-based approach of the RMA in terms of the overall written style. The decision should be expressed in terms of whether actual or potential adverse effects can be appropriately avoided, remedied or mitigated. It is good practice to link those findings to the conditions which have been imposed
Principle 13: Provide an overall evaluation leading directly to the decision whether to grant or refuse consent
The final written decision whether to grant or refuse consent should be immediately prefaced by a clear and compelling overall evaluation, in which a conclusion is reached with reference to the scale and significance of effects and relevant statutory and plan provisions. Specific reference should be made to Part 2 of the RMA.
In practice, where the application lends itself, this part of the decision may actually comprise the entire discussion relating to principal issues in contention and main findings of fact.
There are also some principles which relate specifically notified decisions. These principles reflect the matters addressed in s113(1) to (3) of the RMA.
Principle A: Include objection and/or appeal options, procedural rulings and details of the hearing
In addition to the statutory requirements listed under principle 7 above, information regarding objection and appeal options and deadlines should form part of a written decision. Any rulings on procedural matters (eg, late submissions) should be addressed.
Principle B: Identify the principal issues in contention (s113(1)(ac))
The final written decision for notified applications must clearly identify the principal issues that were in contention and which were considered in determining the application. Where there is contrary or opposing evidence on these issues, the decision should identify those differences and show which argument or evidence takes precedence and why.
The principal issues that were in contention might include not just arguments over the scale and significance of any actual or potential environmental effects, but differing views on the interpretation and relevance of statutory provisions and the provisions of policy statements and plans, for example.
Principle C: State the main findings on the principal issues that were in contention (s113(1)(ae))
The final written decision must identify the main findings on the principal issues of contention and explain how this has led the decision-maker(s) to their decision. The main findings on these issues will be what the decision maker(s) considers important in reaching the decision on the application. These findings should clearly address the principal issues in contention, and should state which facts are relied on in the event of conflicting evidence.
Principle D: Provide a succinct summary of evidence heard (s113(1)(ad))
When a hearing has been held, the final written decision should provide a succinct but accurate summary of the evidence presented or, as a minimum, refer to the main matters addressed by witnesses during their presentations of evidence (particularly where they relate to the principal issues in contention). Acknowledging appearances and making specific reference to each person who spoke enhances public confidence in the decision and helps satisfy parties (especially submitters) that submissions and evidence have been properly considered.
Setting out in great detail the arguments advanced by the parties and the evidence of the witnesses can obscure the principal issues that have to be decided and can make the reasoning process difficult to follow. Nevertheless, it may be appropriate to include a brief summary of submissions and reference to the decision on notification, for the benefit of those who did not attend the hearing (where one was held). Alternatively, the decision may refer to the relevant officer report in these circumstances.
Principle E: Provide reference to relevant statutory provisions (s113(1)(aa))
The final written decision should make reference to the relevant statutory provisions that were considered by the decision-maker(s) (ie, those on which their decision turns). These provisions must include Part 2 matters as well as those set out in Part 6 (such as the relevant statutory tests). The former may be particularly important where the relevance of particular provisions has been a principal issue in contention.
Principle F: Provide reference to relevant policy statement or plan provisions (s113(1)(ab))
Where appropriate, key RMA policy statement or plan provisions should be specifically referenced supported as appropriate by an explanation as to what the relevant objectives or policies are seeking to achieve. This is especially appropriate in dealing with applications for non-complying activities, or where the arguments over the relevance of those provisions have been a principal issue in contention.
Relevant provisions can include national, regional and local-level objectives and policies. Where provisions were not a source of contention, it will be unduly onerous to identify every relevant provision. As an alternative, reference to the relevant provisions can be made in the discussion in the officer's report.
Principle G: Avoid repeating material from the application or supporting reports by making cross-references to these reports and adopting them when appropriate (s113(3))
Section 113(3) allows material in the assessment of environmental effects and any report prepared under ss 41C, 42A or 92 to be cross-referenced in the decision. This provision also allows the assessment or reports to be adopted in the decision.
Decisions on notified applications should therefore avoid duplication of material in the assessment of environmental effects, hearing reports or further information reports by making appropriate cross-references. It will only be appropriate to do this when the information in the assessment or report is considered accurate and relevant to the decision. This will help to save time in the reporting requirements for decisions and reduce administration costs.
On occasions, it may also be also be appropriate to adopt part of the assessment of environment effects, hearing report or further information report in the decision. Where this is done, it is important to ensure that that material is accurately cross-referenced in the decision.
The example decision templates below fulfil the requirements of s113. They also address the general principles of a good written decision set out above and the required content for decisions on notified and non-notified applications. They can be adapted for use by councils.
Before resource consent is signed off by a council and issued, it is good practice to carry out checks to ensure each step of the consent process has been completed correctly.
It is helpful to have a list of the quality assurance matters that should be checked off, including peer review.
When do I notify the decision?
Section 114 of the RMA requires a council to serve a copy of its decision on the applicant, every person who made a submission, and any other persons or authorities the council considers to be appropriate. This notice must also contain a statement of the time in which an appeal against a decision may be lodged. As outlined under the s113 requirements, the decision must be in writing.
Section 115 of the RMA outlines the time limits for notification of a decision. These are:
- 15 working days after the close of the hearing.
- If the application was non-notified and no hearing was held, then notification of the decision must occur no later than 20 working days after the date the application was first lodged (excluding any period when the processing clock was stopped for further information).
- If the application was notified but no hearing was held, notification of the decision must occur no later than 20 working days after the closing date of submissions.
- If the application was notified and a hearing is held, then the decision must occur 15 working days from the close of submissions.
- Where it is decided under s87I that a request for direct referral is to be determined by the council and a hearing is not held, notification of the decision must occur no later than 20 working days after the date on which the council knows s87I applies. This is the same timeframe between the close of submissions and the issue of a decision as a normal publicly or limited notified consent that does not go to a hearing as set out by section 115(4).
Decisions can be served by post, by hand, by email, by leaving it at a document exchange, or faxed. In each instance (apart from by hand), details are specified as being an address for service. Where a decision is sent by post it is normally deemed to have been received by the person at the time at which the letter would have been delivered in the ordinary course of the post (s352).
If the application drew a large number of submissions and the decision is somewhat lengthy due to the nature of the application, s114(3) allows a summary of the decision to be served. Should this option be chosen by the council, the council must make a full copy of the decision available for viewing (physically or by electronic means) at all of its council offices and public libraries within the area of jurisdiction and the parties must be made aware of these locations for viewing. The council should also make parties aware that they can request a full copy of the decision and that it must be provided to them within three working days of a request being made.
How do I notify the applicant of the decision?
The decision letter must include a copy of the decision including any consent conditions imposed. It must also inform the applicant of the right of appeal (s120) and/or objection (s357) and of the 15 working day time frame within which to lodge an appeal/objection should the decision not be satisfactory.
With non-notified resource consents, the decision letter should advise that the resource consent commences immediately unless an objection is lodged. If an objection is made under s357A, the resource consent can only commence once the objection and any appeal under s358, has been decided on, or withdrawn.
With notified resource consents, the decision letter should advise that until the period for lodging appeals is up (15 working days from the date the applicant received notice of the decision), the consent holder must not commence the consent. The applicant cannot commence the consent until the time for lodging appeals expires and no appeals have been lodged, or until the Environment Court determines that the appeals be withdrawn.
If the consent is granted, the decision letter should also advise the applicant of the consent expiry date. In accordance with s125, a resource consent lapses on the date specified in the consent or five years after the date of commencement of the consent (three years if the consent is for aquaculture activities in the coastal marine area), unless the consent has been given effect to or unless the applicant applies to the council to extend the consent period.
In addition to notifying the applicant of the decision, some council’s also include details of the charges the applicant can expect to incur. This is best attached as an invoice rather than detailed in the letter. The letter should at least indicate to the applicant that an invoice will be sent separately. If the consent application was approved, the invoice may also need to include any charges associated with monitoring the consent.
How do I notify the submitters of the decision?
Submitters are notified of the decision in the same way as applicants - in writing, with a copy of the decision and any consent conditions attached.
As with the letter to the applicant, submitters need to be informed of their appeal rights under s120(1) should they be dissatisfied with the decision. Submitters also need to know that they have 15 working days from the date they received notification of the decision, to lodge their appeal with the Environment Court.
Objections to decisions
Under s357A, there is a right of objection in respect of the consent authority’s decision on an application or review, provided that:
- the application or review was notified; and either no submissions were received, or any submissions received were withdrawn; or
- the application or review was not notified.
The above right of objection does not apply to a refusal on a consent application made by the consent authority under sections 104B and 104C, however, it does apply to refusals under sections 104B and 104C made by officer of the consent authority exercising delegated authority under section 34A.
Section 357B also provides for a right of objection to a request by council to pay additional charges or costs.
An objection must be made in writing and must be lodged with the council within 15 working days of receipt of the decision and must set out the reasons for the objection (s357C(1)-(2)).
In the case of an objection made under s357A (objections to decisions or requirements), the council must consider the objection within 20 working days and give at least five working days ' written notice to the objector of the date, time, and place for the hearing of the objection.
For objections made under s357B (objections to costs and charges) the council must consider the objection "as soon as reasonably practicable" and give written notice to the objectors, as for a s357A objection.
The council may choose to hear the objection; or where officers have delegation to do so, deal with it at officer level if agreement can be reached between the objector and the council.
A decision on an objection is to be made in writing and then served on the applicant within 15 working days of making the decision. An applicant dissatisfied with the council decision on the objection (under s357A(1)(a), (d), (f), or (g)), may appeal to the Environment Court under s358 within 15 working days of the receipt of the objection decision. This avenue is not open if an appeal in respect of the same matter has been lodged under s120.
An applicant, consent holder or submitter can appeal a council resource consent decision to the Environment Court under s120(1). For applicants, this appeal right is in addition to the objection rights to the council provided for in ss357A, 357C and 357D.
The appeal must be made in the prescribed form (Form 34) and must state the reasons for the appeal, the relief sought and state any matters required by the regulations. The appeal must be received by the Environment Court within 15 working days of receiving the Council's decision. A copy of the notice of appeal must be served on the council, any submitter and applicant (as appropriate) except for the appellant within five working days of the notice being lodged with the Court.
The Environment Court may order a party to an appeal to give security for costs prior to the proceedings. Where an appeal is not successful, the appellant may be awarded costs against them to pay for the costs of the defendant having to represent their case to the Court. Costs can be awarded by the Environment Court regardless of whether security of costs was required prior to the commencement of proceedings (s285).
See the Ministry's booklet The Environment Court: Awarding and Securing Costs for more information.