By: Amanda Douglas
Published: 24/10/2010
This paper sets out some of the amendments brought into effect by the Resource Management (Simplifying and Streamlining) Amendment Act 2009, which impact on resource consent applications.  Whether you are a council planner applying the amendments to the processing of an application or a consultant planner preparing an application and steering it through the processing stage, you need to know the ins and outs of the amendments.
The amendments took effect on 1 October 2009 but only apply to those applications made, and processes commenced, after that date.  The full effect of these amendments are, therefore, only starting to be seen.

Resource Consents
The First 10 Working Days
During the first 10 working days after an application for consent is lodged, two critical decisions must be made:
  1. Whether the application is complete – section 88
  2. Whether the application needs to be notified.
Application Complete?
Section 88, enabling an application to be “rejected”, has not changed as a result of the Amendment Act.  However, it is likely to be more widely used now that limits have been placed on stopping the clock for further information requests[1].  Essentially, if an application for consent does not include an adequate Assessment of Environmental Effects, a local authority may determine that the application is incomplete, and return it to the applicant.  Written reasons for the determination must be issued when the application is returned.  The determination must be made within 5 working days of receipt of the application.  Pre-application measures will become more important.

Notification
One of the important amendments to the resource consent process has been that relating to notification.
The application must also be notified within 10 working days of it having been lodged.  A decision on whether an application will be notified, either publicly or on a limited basis, must be made well within 10 working days of the application being lodged (unless further information is requested under section 92).
Practically, this will mean that notices will need to be placed in newspapers any day of the week, and not just on a Wednesday or a Saturday, as has often been the case under the previous regime.  Decisions will also need to be made ahead of newspaper advertising deadlines.

The previous presumption has been removed.  That presumption was that all resource consent applications would be notified unless they were a controlled activity or the consent authority was satisfied that the adverse effects on the environment were minor.  Now, the consent authority has discretion whether to publicly notify an application but it must publicly notify if:
  • The activity will have or is likely to have an adverse effect on the environment that is more than minor, or
  • The applicant requests it, or
  • A rule or national environment standard requires public notification.
It still has a discretion to notify an application if special circumstance exist - s95(4). 

Are Adverse Effects Likely To Be More Than Minor?
This is dealt with in section 95D, which sets out the matters to which regard must and may be had.  In making this decision, the consent authority must disregard any effects on persons who own or occupy:
  • Land in, on or over which the activity will occur;
  • Any land adjacent to that land.
Therefore, the first step will be to identify the land relating to the activity and the land adjacent to that land.  "Adjacent" has not been defined, so it will become a matter of interpretation as to whether it is simply the land adjoining or immediately beside the application site or whether it goes beyond that.  There may well be debate or differences in interpretation until it is determined by the Courts.  All of that land so identified will be excluded from the assessment of whether the activity will have or is likely to have effects which are more than minor, for the purposes of public notification.  The permitted baseline may be taken into account in making this assessment. 
The next key decision is whether the activity will have or is likely to have adverse effects which are more than minor.

The Courts have consistently held that an assessment of what is minor is one of fact and degree.  "Minor" has previously been held to be at the lower end of the scale of major, moderate and minor effects, but must be something more than de minimis[2].  There is no absolute yardstick by which effects are to be measured.  Rather, it is a matter of judgment on the part of the decision maker, in each case.
The Court has also said that the decision-maker should consider both the individual components of a consent application and the overall effect of those components in combination[3].  Previous case law is useful to determine what might be "minor", but the adverse effects must now be "more than minor".
If, taking into account the matters in section 95D, the decision maker considers that the effects associated with the proposed activity are more than minor, then the application must be publicly notified.  In this case, the public will be able to make a submission and to be involved as they were previously.
If the effects are not, or not likely to be, more than minor, the consent authority will then need to consider whether limited notification should occur. 

Limited Notification
Previously, if public notification was not required, the consent authority was required to notify, on a limited basis, all persons who may be adversely affected by the activity, even if some had given their written approval.
Now, s95B which deals with limited notification, provides that, if an application is not publicly notified, the consent authority must decide if there are any affected persons (or order holders) in relation to the activity.  It must then give limited notification to any affected person unless a rule or NES precludes limited notification.

Who Is An Affected Person?
The consent authority must decide that a person is an affected person if the adverse effects of an activity on the person are minor or more than minor (but not less than minor)[4].  The permitted baseline may be considered in this assessment.
A person must not be found to be an affected person if:
  • They have given written approval; or
  • It is unreasonable to seek the person's approval.
So, limited notification will no longer be given to those who have given written approval.  This important change will give more weight to written approvals and will provide a greater incentive to obtain them (even if only a few can be obtained).

Consequences Of Amendments To Notification
  • There is no longer a presumption that notification will occur.
  • To be publicly notified, the adverse effects must be, or be likely to be, more than minor.
  • Land relating to the application and the land adjacent to it must not be considered in the public notification considerations.  They are relevant only to the limited notification consideration.
  • If an application is not publicly notified, the consent authority must then consider limited notification. 
  • Limited notification must be given to all affected persons.  To qualify, the activity's adverse effects on that person must be minor or more than minor.
  • Limited notification will no longer occur if there may be adverse effects on persons.
  • Previously, as a part of limited notification, consent authorities would give limited notification to interest groups and organisations representing a certain relevant aspect.  Now, if matters are not publicly notified, it may be harder to notify such groups, as the adverse effects of the activity on those groups are unlikely to be minor or more than minor.  Rather the effects would be on the public.  There would need to be some demonstration that the adverse effects on those persons on and adjacent to the application land need to be represented by a specific group - and that may be a long bow to draw, depending on the application.
  • There may be an argument that the previous legislation used the words "persons who may be adversely affected by the activity" and the new words "the activity's adverse effects on the person" are not much different.  So, it will remain to be seen how it is interpreted.  But it would be fair to say, the ability to become involved in resource consent applications is intended to lessen.
Requests for further information – Section 92
Changes have been made to the manner by which an applicant must respond to requests for further information.  Sections 92A(3) to (6) have been repealed and replaced with new provisions.  If the applicant:
  1. Does not respond to a request for further information; or
  2. Agrees to provide the information requested but does not do so; or
  3. Refuses to provide the information requested
The consent authority is required, by the new provisions, to go on and determine the resource consent application without such information.  Previously, an application would remain on hold until the applicant provided the additional information.
A new long-stop provision has been included in the Act (section 159) for consents lodged before 10 August 2005 where the applicant has not responded to a further information request.  If the requested information is not supplied by the later of the following two dates, the application will lapse:
  1. Within 12 months of the commencement date of the Amendment Act 
    (1 October 2009); or
  2. Within 12 months from the date on which the request was made.
Excluded Time Periods – Stopping the Clock
In order to address complaints about frequent further information requests and 'clock stopping', section 88C provides that the processing clock can only be stopped twice for information requests - once before the closing date for submissions, and once after.
Section 88C(2) sets out the time period which must be excluded when a request for further information is lodged.  The starting point is the date when the request was made under section 92(1), and ends:
  1. If the applicant provides the information, on the date when the information is provided;
  2. If the applicant agrees within 15 working days to provide the information, the date on which the information is provided (which may be more than 15 working days after the information is requested);
  3. If the Applicant agrees within the 15 working days to provide the information and does not provide the information, the date set by the consent authority in accordance with section 92A(2);
  4. If the applicant refuses within 15 working days to provide the information, within 15 working days.
If an applicant agrees to provide the information requested by the consent authority, the consent authority must set a reasonable time within which the applicant must provide the information. 
If the applicant does not provide the information within that time period, then the consent authority must consider the application under section 104[5].

Extensions of Time –Section 37A
Section 37A of the Act, in relation to extensions of time periods in the resource consent process[6], has been amended.  The relevant parts of section 37A are subsections (3) to (6).
A time period may only be extended for a time not exceeding twice the maximum time specified in the Act, and either:
  1. Special circumstances apply (eg scale and complexity of the application); or
  2. The applicant agrees to the extension.
In addition, the consent authority must take into account the matters listed in section 37A(1):
  1. The interests of a person who may be affected by the extension;
  2. The interests of the community in achieving an adequate assessment of the effects of a relevant plan; and
  3. Its duty to avoid unreasonable delay.
If a consent authority wishes to extend time by more than double the specified amount, it can only do so if the applicant agrees and it has considered the matters specified in section 37A(1).

Officers Reports – Section 42A
The key change which has been made to section 42A is that a s42A report does not need to repeat material from the applicant’s Assessment of Environmental Effects.  Instead, the report can either:
  1. Adopt the entire assessment; or
  2. Adopt any part of the assessment by referring to the part adopted.
In addition, where a direction as to the exchange of evidence has been made, the consent authority must now provide parties with a copy of the s42A report at least 15 working days before the hearing[7].
Section 42A(4)(b) also expressly recognises that the report can be served electronically. 

Appointment of Independent Commissioner(s)
An applicant or a submitter can now request a consent authority to appoint independent commissioner(s) to hear an application for consent (section 100A).
The costs of appointing an independent commissioner, over and above those costs of a hearing without independent commissioners, is borne by the party or parties who request the appointment of an independent commissioner.  This will not change for applicants, but submitters need to be aware of this when deciding to take advantage of this new provision.

Adjournment of Hearing
The new section 103A provides that an adjourned hearing must be concluded no later than 10 working days after the applicant’s right of reply has been exercised.  .  Previously, many decision makers simply adjourned a hearing following the applicant’s reply, which had the effect of extending the period of time within which the decision had to be issued. 

The decision maker must then issue a decision within 15 working days after the end of the hearing (section 115).  Overall, decisions should be released more quickly.

Discount Policy
In the event that a consent authority fails to comply with a time period set in the Act, the consent authority’s fees must be reduced in accordance with a discount policy (section 36AA).  The Minister is currently consulting on a draft discount policy.  Section 36AA requires that this default policy is set by regulation within 9 months of the Amendment Act becoming operative.
Councils can have their own policy provided that it is more generous than the default discount policy set down by the regulations.  Any such policy must be prepared using the special consultative procedure under section 83 of the Local Government Act 2002.

 


[1] see 'Excluded Time Periods - Stopping the Clock' below
[2] King v Auckland City Council [2000] NZRMA 145 (HC)
[3] Sheppard v North Shore City Council 1/5/01, Priestey J, HC Akld, M1791-SW00
[4] Section 95E
[5] Section 92A(3)
[6] Applies to resource consent applications, applications to change or cancel conditions and applications to review consents
[7] Section 42A(3)(a)
 
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