Philip Maw, examines the ability to amend a resource consent application once notified.
Situations often arise during the resource consent process where an applicant may wish to change its application after the application has been notified. The changes may result from concerns raised in submissions, a request for further information from a consent authority, or at the suggestion of the consent authority itself. The applicant’s own advisers may even suggest that the application be amended to incorporate changes to better serve the applicant’s needs. This raises the question of whether an applicant can amend an application after it has been notified, without the need to re-notify the application.
In appropriate cases, an applicant can make changes to an application for resource consent after public notification of the application, without having to re-notify the application. However, decision-makers are often left to determine if an amendment to an application is appropriate in any particular case.
An amendment to an application that goes beyond the scope and ambit of the original application will be an amendment that requires notification. This is because the amendment changes the nature of the application that was notified to the public for comment. It is possible that someone who decided not to submit on an application may have lodged a submission if the application had been notified in its amended form (ie it was of a different scope and ambit to the original application).
This question of scope and ambit has come before the courts on a number of occasions.
Relevantly, the court has formulated two principled approaches to assess whether an amendment without further notification is appropriate in any particular case.
The first principled approach comes from the often cited case of Darroch v Whangarei District Council, A18/93.
Darroch involved an application for a land use consent and a water discharge consent by the Mid Northern Rodeo Association for the use of its stockyards for public auctions of livestock. The District Council declined the original application, and the applicant appealed that decision to the Environment Court (as it now is).
The question of ambit that arose in Darroch was whether or not the applicant was bound by its original application in relation to the number of stock that could be held on-site for an auction. The original application specified that the sale yards would be used no more than twice a month, with between 200 and 300 head of mixed stock.
Following the lodging of the application, and after the closing date for the lodging of submissions, the Council sought further information from the applicant about the maximum number of stock, and the applicants advised that the maximum number of stock to be held at the sales yard would be 350 head of stock.
When considering whether this increase in stock numbers was outside of the scope of the original application, the Court held:
It is the original application and any documents incorporated in it by reference which defines the scope of the consent authority's jurisdiction. In appropriate cases, where consistent with fairness, amendments to design and other details of an application may be made up to the close of a hearing. However they are only permissible if they are within the scope defined by the original application. If they go beyond that scope by increasing the scale or intensity of the activity or proposed building or by significantly altering the character or effects of the proposal, they cannot be permitted as an amendment to the original application. A fresh application would be required.
On this basis, the Court held that the maximum number of stock that could be held in the sales yard was 300 head, as that was what had been applied for in the original application, and notified to the public.
This approach has come to be known as the scale and intensity approach.
The second principled approach stems from the case of Haslam v Selwyn District Council (1993) 2 NZRMA 628. This approach reflects the principle of public participation that underlies the Resource Management Act 1991.
Haslam involved an application for a land use consent for a composting operation. The application was publicly notified, but the exact location of the composting operation on the 480 ha site was not pinpointed in the notification. Prior to the hearing, but after the period of time in which people could make submissions on the proposal, the applicant amended the proposed location of the composting operation on the farm by moving it some 800 metres from the original site, but within the same 480 ha site.
Consent was granted for the composting operation, and an appeal was lodged, alleging, amongst other things, that the consent authorities exceeded their jurisdiction by purporting to grant consent for a site that had not been adequately publicly notified.
Judge Sheppard held that the test that should be applied to determine if the amendment to the application was outside of the scope of the application, was:
Whether the amendment … is such that any person who did not lodge a submission would have done so if the application information available for examination had incorporated the amendment.
As to the standard that should be applied, Judge Sheppard held that the test as to whether any further submissions would be lodged, was one of plausibility, not certainty. The standard of plausibility achieved a better balance between confining consents to the proposals as at the time submissions are lodged, and allowing applicants to incorporate sound points made by submitters or by the consent authority.
In applying this test, the Court held that the consent authorities did not exceed their jurisdictions by granting the resource consents in that case.
The approach of combining these two principles has been followed recently by the Court in Zakara Investments Limited v Rodney District Council, A118/2004, in considering an application where the applicant sought to extend the width of a jetty from 2 metres to 3 metres at the hearing of the application. In Zakara, the Court held that while the scale of the proposed structure would be altered, the intensity of the activity would not increase, and there were no persons likely to be affected by the amended application to a degree that they may have made an objection at the council hearing.
In summary, the test to be applied is whether:
the amendment increases the scale and intensity of the activity; and
it is plausible that any person who did not lodge a submission, would have done so if they were aware of the amendment.
The test needs to be applied on a case by case basis. If you are in the situation of needing to change your resource consent application after it has been notified, your individual situation will need to be carefully considered. Your Lawlink solicitor will be able to advise how the test is to be applied to your particular situation.