Naturally Resourceful

14 Sep 2009

The Select Committee's Rewrite of the RMA Notification Provisions

The Local Government and Environment Committee (Select Committee) reported back on the Resource Management (Simplifying and Streamlining) Amendment Bill on 18 August 2009. The key recommendations of interest were summarised in an earlier FYI.This FYI explains in more detail the rewrite of the provisions regarding notification of resource consent applications, including changes made through Supplementary Order Paper No 39 introduced by the Minister, Hon Dr Nick Smith, on 9 September.

Background

With the exception of controlled activities (which are not notified), the current presumption is in favour of notification. To process an application without public notification, consent authorities have had to satisfy themselves that the effects of an activity on the environment will "be no more than minor". Once satisfied of that, the consent authority needs to determine whether any persons are affected in a manner that is more than "de minimus" (or negligible). If they are, those persons must be served with a copy of the application.

The two significant changes agreed to by Cabinet earlier this year were to:

1. remove the presumption in favour of notification, as most applications are not notified; and
2. amend the criteria for when public notification is required for projects with more than minor effects on the wider environment.

The Bill proposed to replace sections 93 and 94 in the Act relating to notification. The proposed amendments meant that:

1. the test for whether a person is "affected" moved from whether they are affected by an effect that is more than de minimus, to whether they are affected by an effect that is more than minor;
2. instead of Councils having a discretion to apply the permitted baseline when determining the level of effects, this would be mandatory;
3. a new test was introduced, requiring public notification if the effects "beyond the immediate environment" will "be more than minor".

In addition, clause 54 of the Bill proposed to repeal section 77D which allows a rule in a plan for a controlled or restricted discretionary activity to state whether applications may be decided without notification or without service. Instead, the Bill proposed to expand the local authority's ability to include rules regarding notification for any activity status, with new section 94AAD(1) allowing rules in the plan to specify the activities for which the consent authority:

1. must give public notification;
2. is precluded from giving public notification; and
3. is precluded from giving limited notification.

The Select Committee's proposal

The commentary explains the amendments are to address both matters of substance and to make the provisions more readable. The Select Committee was concerned:

• with the very high threshold of certainty regarding the level of effects prescribed in the new section 94. It replaced the words "will be more than minor" with "may be more than minor";
• with the application of the term "beyond the immediate environment". Instead it referred to land on which the activity will occur;
• that the raised threshold for being an "affected person" would discourage the participation of genuinely affected parties. It recommended setting the test higher than the current test, but lower than proposed in the Bill; and
• with the mandatory application of the permitted baseline, and recommended the discretion remain.

The Bill as reported back from the Committee proposed to repeal sections 93 to 95, and to substitute new sections 95 to 95F. We summarise the new approach below.

Rules regarding notification

The Select Committee has agreed that section 77D should be repealed, and has agreed with the intention of the Bill to enable rules in a plan specifying the approach to notification for any status of activity. Instead of addressing this matter in section 95, the Select Committee has substituted section 77D with the new approach. This is a sensible amendment, as it places the ability to make rules in the relevant subpart of the Act concerning rules in plans.

Public notification

Subsection 95A(1) specifies the consent authority may, in its discretion, decide whether to publicly notify. Subsection 95A(2) specifies when applications must be publicly notified, subsection (3) specifies when they must not be publicly notified, and subsection (4) retains the discretion to notify if special circumstances exist.

As drafted by the Select Committee, an application had to be publicly notified if:

1. the adverse effects may be more than minor;
2. the applicant requests notification; or
3. a rule or national environment standard (NES) requires notification.

Section 95D sets out the method for assessing whether the adverse effects on the environment may be more than minor:

1. There are four matters that must be disregarded:
   1. any effects on the owners or occupiers of the subject site and any adjacent land;
   2. trade competition and the effects of trade competition;
   3. any effect on a person who has given written approval; and
   4. for controlled and restricted discretionary activities, any effects that do not relate to a matter for which a rule or NES reserves control or restricts discretion.
2. The consent authority may also disregard an adverse effect if a rule or NES permits an activity with that effect (i.e the permitted baseline remains discretionary, rather than mandatory as originally proposed).

As drafted by the Select Committee, subsection 95A(3) specified that an application must not be publicly notified if:

1. a rule or national environment standard precludes it; and
2. subsections 2(a) and (b) do not apply.

There were three areas of concern with the Select Committee's drafting of section 95A.

1. Firstly, an application had to be notified if the adverse effects "may" be more than minor, compared to the current situation where an application must be notified unless the consent authority is satisfied the adverse effects will be minor. While the level of effect at which an application must be notified remains as "more than minor", it was likely that confusion (and therefore litigation) would arise from the use of "may" instead of "will". No guidance was provided as to the level of certainty required before a consent authority can be satisfied about the level of adverse effects generated by an activity.
2. Secondly, there appeared to be an error in subsection (3). It seemed the intent was to specify that subsections 2(a) and (b) do not apply where a rule or NES precludes public notification. However, the wording suggested that a consent authority must still consider the likely level of effects generated by the activity even when a rule or NES precludes public notification.
3. Third, subsection (1) provides a discretion to notify. Subsections (2) and (3) apply "despite subsection (1)" and direct when an application must or must not be notified, with subsection (4) retaining the existing discretion to notify where special circumstances exist. It is therefore unclear what the residual "discretion" in subsection (1) relates to and it may, in fact, be redundant.

Two of these concerns are addressed in the Supplementary Order Paper No. 39 proposed by the Minister in Committee on 9 September. In particular:

• the test of whether the effects "may be more than minor" is proposed to be replaced with a requirement that an application be notified if the activity "will have or is likely to have adverse effects" that are "more than minor". In our view, this is a welcome amendment; and
• the confusion in subsection (3) has been removed by deleting the cross reference to subsections 2(a) and (b).

In addition, section 95C provides that an application must be publicly notified when:

1. an applicant either refuses to provide further information sought under s92, or fails to provide the information before the deadline; or
2. an applicant refuses to agree to the commissioning of a report, or fails to respond before the deadline.

Section 95C applies despite any rule or NES precluding notification (s95C(4)), but only applies where the consent authority has not already decided whether to notify or not (s95C(1)(a)).

Affected persons

If the application is not to be publicly notified, the consent authority must decide if there are any affected persons (s95B(1)). The most significant change from the current approach under the Act is that the level of effects required before a person is "affected" has changed from de minimus (or negligible) to minor. As a result, written approvals from neighbours will only be required where the effects on them are minor, or more than minor, rather than more than negligible. This is likely to significantly reduce the involvement of neighbours in resource consent applications.

A significant change made by the Select Committee is to substitute the concept of the "immediate environment" with a specific reference to the land on which the activity will occur and any adjacent land. The phrase "directly affected by the application, including adjacent owners and occupiers of land" was removed from the Act in 2003. Pre-2003 case law in relation to the word "adjacent", which courts are likely to apply to help interpret the new wording, suggested that it was not limited to land that shares a property boundary with the subject land. That might allow, sensibly, land across the road from the subject site to be disregarded when a Council is deciding whether to publicly notify, albeit that effects on the occupier of such land might still result in limited notification. However, the word "adjacent" fails to achieve the certainty the Select Committee was seeking when it abandoned the words "immediate environment".

Summary

The amendments proposed by the Select Committee reflect the original intent of Cabinet, and are an improvement on the amendments proposed in the Bill. In reality, there is likely to be little change to the number of applications that are publicly notified (which is already fairly low), but a significant reduction in the number of applications where neighbour (or other affected person) approvals are required and sought.

Authors

Heather Ash

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Duncan Laing

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Bill Loutit

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Padraig McNamara

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James Winchester

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James Hassall

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