Non-notified resource consents
Non-notified make up the majority of resource consent applications under the RMA and these follow a shorter and simpler process than notified applications. This guidance note outlines how the non-notified resource consent process works, the key statutory considerations and provides best practice advice on preparing s42A officer reports for non-notified applications.
- What are non-notified resource consent applications?
- How is the process for non-notified applications different to notified ones?
- What timeframes apply?
- Writing the report on a non-notified application
Non-notified resource consent applications are those applications that are not publicly or limited notified. They are applications where the council has decided that the proposed activity:
- will not have, or is not likely to have, more than minor adverse effects on the environment (in accordance with s95D);and
- a rule of a plan or national environmental standard does not require notification and either one of the following apply:
- no parties are considered adversely affected; or
- all parties considered to be adversely affected have provided their written approval.
The non-notified process can also apply to applications to change consent conditions under s127 of the RMA when the above criteria apply.
When deciding if a person is an affected person, s95E states that an affected person must be adversely affected in a way that is minor or more than minor.
For the purposes of public notification, any effects on persons who own or occupy the subject site or any land adjacent to the subject site must be disregarded when considering whether the adverse effects of an activity on the environment will be or are likely to be more than minor(s95D(a)).
As part of the assessment of an application and its associated assessment of environmental effects (AEE), the council needs to assess and decide:
- the degree and magnitude of any adverse environmental effects; and
- if there are any adversely affected parties.
If the adverse environmental effects are considered to be, or are likely to be, more than minor and these effects extend beyond the site on which the activity will take place and any adjacent sites, the application needs to be publicly notified. If the adverse effects on the environment are minor or less than minor, the application can be considered on a non-notified or limited notified basis. It then needs to be determined if there are any persons adversely affected by the activity (i.e. where the activity's adverse effects on the person are minor or more than minor (but are not less than minor)).
An application can be considered on a non-notified basis if the following tests are met:
- the proposal will not have, or is not likely to have more than minor adverse effects on the environment; and
- written approval of all adversely affected parties is obtained; or
- no party is adversely affected by the activity.
This means that in some cases the council may decide the adverse effects are less than minor in scale and there are no adversely affected parties. Therefore, no written approvals are required for the application to be processed on a non-notified basis. However, if there are parties deemed to be adversely affected by the council and they do not provide their written approval then the application must follow the limited notified process.
Plans or a national environmental standard may contain provisions about whether affected parties are required to provide their written approval. This is usually in relation to controlled or restricted discretionary activities, which also often have limited and or predictable effects.
Once a decision has been made that no written approvals are required or all the appropriate written approvals have been received, then an application can be assessed and a decision made about whether to grant or refuse the application. Non-notified applications generally do not require a hearing to make a decision. However, sometimes a hearing may be required where the applicant asks for one. At other times, a hearing may be required if the council considers it appropriate that the application be heard for a particular reason (ie, when the applicant and council cannot agree on the conditions of the consent or where it is recommended the consent be declined).
The council can delegate the approval of non-notified applications to officers or officer committees.
It is good practice when deciding who may be affected to consider the effect that a permitted activity would have on the same parties. This is called the permitted baseline test and it can be used to focus on those effects above those of a permitted activity. The council needs to decide if the permitted baseline is relevant or not as it is discretionary and does not always have to be applied.
The time frames and processes for an application are shown in the flowcharts linked below:
- Non-notified applications
A non-notified application that does not require a hearing must be decided within 20 working days.
If the application is non-notified but does require a hearing, the hearing must commence within 35 days of the application being lodged. Unlike notified applications, the hearing days for a non-notified application are excluded from the working day calculation. A decision must then be issued within 15 working days of the close of the hearing.
The timeframes for notified and limited notified applications are longer to allow for submissions to be provided and considered. These timeframes for these applications were amended by RMAA13 so that decisions must be made within 130 working days (approximately six months) for publicly notified applications where a hearing is held, 100 working days for limited notified applications where a hearing is held, and 60 working days for notified applications where no hearing is required. For more information refer to the Notified and limted notified applications guidance note.
Purpose of the report
The purpose of this report is to show the reasoning why a certain decision has been or should be made. The report should include an assessment of the proposal against all the relevant matters under all the appropriate sections of the RMA and the relevant plans.
What to include in a non-notified report
The report needs to assess the effects of the activity and include a statutory assessment of the relevant matters required by the RMA and the relevant policy statements and plans. It should include a recommendation or decision regarding whether the application has or should be granted or declined. If the recommendation is to grant the application, then the report should also propose any conditions that may be required to mitigate, remedy or avoid effects.
The scope, depth and length of a report on a non-notified application should reflect the scale and significance of the environmental effects of the proposed activity.
In accordance with s42A(1A), the report does not need to repeat information that has been included in the applicants application. For example, if the proposal, site description or AEE is correct and has been checked and agreed with by staff, any or all parts of these assessments can simply be adopted in the officer's report. These provisions help to avoid unnecessary duplication and provide for more efficiency in report writing.
Councils may have a set format or templates for writing reports on non-notified consent applications. This can also help provide more efficiency and consistency in report writing.
It is good practice and courteous to call or email the applicant before issuing a decision, particularly in relation to any proposed conditions of consent they may not be anticipating or where these may be of concern to them. It may also be appropriate to send the applicant the draft report and conditions for comment.
The report should identify any parties that were considered to be adversely affected and have given their written approval. Consider attaching a plan to the report to show the location of these parties.
If the report is a decision report (ie, the person writing the report also has delegated authority to make the decision) then this should be written accordingly. For example, if the decision report is the only report prepared in relation to the consent, it may be appropriate to combine the requirements of a report and a decision report to ensure all the necessary information is included.
When should the report be sent out and who to?
If a non-notified application is not going to progress to a hearing there is no need to circulate the report other than to the applicant unless a copy is requested by another party.
If the application is to proceed to a hearing then a report on a non-notified application should be sent to the applicant, and the decision-maker(s), whether it be a hearing committee or commissioner(s). Section 42A(3) of the RMA requires that the report arrives with the parties it is sent to five working days before the hearing begins (or 15 working days before the hearing if the pre-provision of evidence is required under s41B). This requirement may only be waived if the council is satisfied there is no material injustice to any person who should have been sent a copy of the report under s42A(5).
Where an application is made for a significant project and it is to be heard, it is good practice to circulate the council officer's report considerably earlier than five days before the hearing. This allows all parties (ie, applicant and the commissioner or hearing committee) to consider the recommendations and assessments made, address them and potentially commission further evidence where required.