There is no duty for applicants and councils to undertake consultation for resource consent applications under s36A of the RMA. Whether to undertake consultation, and the extent and nature of consultation, is up to the applicant. However, consultation is often required to provide a full assessment of environment effects (AEE) that must accompany a resource consent application. Schedule 4 of the RMA (Clause 1(h)) requires that an AEE should include an identification of the persons affected by the proposal, the consultation undertaken, if any, and any response to the views of any person consulted.
Consultation generally occurs with people who may be adversely affected by, or have a specific interest in, a resource consent application, and is essentially a process about:
- providing enough information to an interested or affected party to enable them to understand a proposed activity
- discussing the resource consent application with them
- receiving any comments they might have on the proposal and, where appropriate, amending the proposal to be more acceptable to the consulted parties
- gaining all the necessary information to provide a thorough and complete application.
When consultation occurs, it should be made clear that the primary objective is a genuine exchange of information and points of view between applicants and people affected or interested in a proposal. It should also be clear that consultation is different to obtaining written approvals from affected parties as part of the notification/non-notification process, though that may be an outcome of the process following consultation in processing an application.
Although there is no statutory duty to consult on resource consents, consultation can provide many benefits, including:
- helping an applicant to modify a resource consent application to reduce adverse environmental effects and make it more acceptable (if possible) to affected parties or the wider community
- helping to ensure that all potential effects on the environment have been identified and addressed in the application
- providing information to the local community about a future change that may occur in the area
- building better relationships between the applicant, the council, and any consulted parties, including tangata whenua
- helping the resource consent proposal encounter less opposition in the later stages of the consenting process
- producing a better proposal with more acceptable outcomes.
What are the underlying principles of consultation?
The Environment Court has developed a statement of principles for consultation. These principles have been primarily developed through case law relating to resource consents and notices of requirement.
The Environment Court's statement of principles for consultation are:
- The nature and object of consultation must be related to the circumstances.
- Adequate information of the proposals is to be given in a timely manner so that those consulted know what is proposed.
- Those consulted must be given a reasonable opportunity to state their views.
- While those consulted cannot be forced to state their views, they cannot complain, if having had both time and opportunity, they for any reason fail to avail themselves of the opportunity.
- Consultation is never to be treated perfunctorily or as a mere formality.
- The parties are to approach consultation with an open mind.
- Consultation is an intermediate situation involving meaningful discussions and does not necessarily involve resolution by agreement.
- Neither party is entitled to make demands.
- There is no universal requirement as to form or duration.
- The whole process is to be underlain by fairness.
These principles can be further drawn on from other decisions of the Court to include that:
- there is an overall duty on the part of both parties to act reasonably and in good faith, because consultation is not a one-sided affair
- consultation has overlapping requirements of reasonableness, fairness, open mind, freedom from demands, and the need to avail oneself of the consultation opportunity
- consultation is as much about listening as it is about imparting information, and is more about the quality of information imparted than it is about the quantity
- consultation is not an end or an obligation in itself, it is just one possible method of gathering views from those affected so that they can be taken account of in the decision-making process. The primary obligation is to ensure that the decision-maker has sufficient material before it to make the necessary decisions about Part 2 issues.
Councils also have to consider how consultation principles under the Local Government Act 2002 are addressed when undertaking consultation on resource consent matters.