Publications
FYI
Naturally Resourceful
01 Apr 2009
Notification: Presumption to notify replaced by complex and uncertain tests
Submissions are due on the Resource Management (Simplifying and Streamlining) Amendment Bill on 3 April 2009. In this FYI, we comment on the proposes changes to the notification provisions in the Act.
The Minister's 19 February 2009 Cabinet Paper states that the Bill proposes removing the current presumption that resource consents need to be notified. However, on a closer analysis, the position under the Bill is somewhat more complex.
Currently, section 93 of the RMA requires that a consent authority must notify an application for a resource consent unless:
- it is for a controlled activity; or
- the consent authority is satisfied that the adverse effects of the activity on the environment will be no more than minor.
Approximately 95% of applications are processed by Councils on a non-notified basis. While the current presumption in the Act is to notify applications, that is not the reality for the majority of applications.
Changes Proposed by the Bill?
The Bill proposes to introduce a new section 94 which provides that "a consent authority may, in its discretion, decide whether or not to publicly notify an application for a resource consent".
This discretion is also not open-ended. It is subject to a number of specific circumstances, where notification must occur, and where notification must not take place. In addition, as is the case for any statutory discretion, it must be exercised to promote the purpose of the Act, and would presumably be subject to challenge on established administrative law grounds. It is far from clear how a consent authority should exercise this residual discretion.
These circumstances where notification must or must not occur are where:
- the consent authority is satisfied that the adverse effects beyond the immediate environment will be more than minor (proposed section 94AA(a);
- a further information request has been made and the person has not replied; (proposed section 94AA(b);
- the applicant requests notification (proposed section 94AA(c));
- a rule in the plan requires notification; or
- the consent authority considers "special circumstances" apply (proposed section 94AAE).
Limited notification must also occur where the application will not be publicly notified but one or more affected persons have not given written approval (section 94AAB).
The Bill also dictates when notification is prohibited. Proposed new section 94AAC provides that a consent authority must not notify an application if it is satisfied that the adverse effects of the activity on the environment will be minor.
New Tests for Notification
The Bill introduces a number of new tests for determining whether to notify, and if so, who.
Applications for activities with adverse effects which are minor would be processed on a non-notified basis. The test for determining whether adverse effects are "minor" or "more than minor" is contained in section 94A of the RMA. This section remains relatively unchanged by the Bill. Existing case law will continue to apply.
More difficulty is likely to occur when deciding whether notification must occur. Proposed new section 94AA requires notification if the adverse effects beyond the "immediate environment" are more than minor. However, "immediate environment" is not defined by the Bill. A judgment would need to be made about what the boundary between the immediate and wider environment was for the purpose of any application.
Any decision by the Council could be legally challenged. Until case law became settled, there would be risks in Councils applying this provision.
The Bill also changes the test for determining who is an affected person. Currently, section 94B provides that a person may be treated as not being adversely affected where the plan permits an activity with the relevant effect. This discretion would be removed and such people would not be notified. More importantly, proposed section 93A states that a person must not be considered affected unless the effects of the activity on a person are more than minor. This change is likely to result in a period of uncertainty until some new case law is established.
There is an important distinction to be drawn between effects on a person and effects on the environment. The Court of Appeal recently recognised this distinction in Royal Forest and Bird Protection Society of New Zealand Incorporated v Kapiti Coast District Council [2009] NZCA 73, where it stated (at para 27):
"… a particular piece of land may be of such importance in terms of Part 2 that it would be inappropriate to treat the current owner or administrator of it as the sole arbiter of the effects on that piece of land. In those circumstances, if that owner or administrator consents, his or her consent would mean that the consent authority could disregard effects personal to that owner or administrator, but could not disregard the wider erects to the land as it may be used or viewed by others, including the general public."
Potential Gaps in the Amended test?
The change in legislation raises questions about whether the right balance has been achieved in relation to public participation. By way of example, when full public notification is not to occur, what happens if an activity has potential effects on the environment (but not a person)? What if the effects on the environment are not "beyond the immediate environment"? Should all applications that have the potential to cause adverse effects on section 6 resources be notified? In such circumstances, a consent authority's residual discretion would arguably allow notification.
Overall Conclusion
Overall, the Bill appears to be changing the tests in the Act with little clear benefit. These changes, if enacted, will cause uncertainty about who should be notified and when. This uncertainty would only be removed once there was sufficient case law on the correct interpretation of these provisions.
Authors
Padraig McNamara
Partner - Public Sector
DDI: +64 9 977 5095
Mobile: +64 21 924 350
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James Winchester
Partner - Public Sector
DDI: +64 4 924 3503
Mobile: +64 21 303 700
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In This Article:
The Minister's 19 February 2009 Cabinet Paper states that the Bill proposes removing the current presumption that resource consents need to be notified.
