Resource consent is approval granted by a Council for any proposed use, development or subdivision of land. The RMA sets out the procedures and processes that must be followed by Council when they consider an application, the rights of applicants, and the rights of other people / organisations to be involved in the resource consent process. Click on the headings below to find out the key provisions of the RMA that relate to resource consents.
Rejection of Applications
Where a resource consent application is submitted to Council they can within 5 working days of lodgement reject it on the basis that either:
- The assessment of environmental effects is inadequate; or
- Information required by regulations has not been provided.
Where a Council rejects an application they must provide reasons for this. An applicant has the ability under the RMA to object to Council when their application is rejected.
In practice it is becoming clear that many Councils are using the rejection provisions of the RMA to require that proposals are amended to suit their concerns, or to request the provision of information that is beyond their ability to ask for. Refusal to provide the information means that an application will never be accepted. Because of the time and costs involved it is rarely practical to object to these requirements and applicants are often forced to amend their proposals for the sake of ensuring that their applications are accepted and processed.
Where a resource consent application has been received by Council, they can at any time request in writing (with reasons) that an applicant provides further information. Where an applicant refuses to provide any such information the application is required to be publicly notified. An applicant has the ability under the RMA to object to a further information requests.
The RMA does not limit or restrict the circumstances where Council may request further information to be provided. Generally the processing of an application will be placed on hold by a Council until the required information has been provided to them.
Commissioning of Reports
Councils may at any time commission any person to prepare a report on any matter relating to a resource consent application. The report may only be commissioned where Council is of the opinion that the proposed activity may have a significant adverse effect and the applicant has agreed to the report being commissioned.
Council must notify an applicant in writing of its intention to, and reasons for commissioning a report. Where an applicant refuses to agree to the commissioning of a report the application is required by the RMA to be publicly notified. An applicant has the ability under the RMA to object to the commissioning of a report.
Within 10 working days of receiving a resource consent application Council must decide whether or not they require it to be notified. Notification will either be on a public or limited basis. Public notification means that any person can make a submission to Council. Limited notification means only people specifically identified by Council have the ability to make a submission.
Public Notification: Resource consent applications must be publicly notified where:
- a Council decides that what is proposed is likely to have adverse effects on the environment that they deem to be more than minor; or
- notification is specifically requested by an applicant; or
- an applicant fails to respond or refuses to provide any further information that has been requested; or
- an applicant fails to respond or refuses to agree to the commissioning of a report.
Regardless of the above provisions a Council may also require public notification where they believe that special circumstances exist in relation to it.
Limited Notification: If a decision is made that public notification is not required, Council must then decide if there are any people who have the potential to be adversely affected by what is proposed. If the decision is made that any adverse effects on a person are minor or more than minor then the application must be limited notified to those people.
Submissions / Hearings / Appeals: Where notification of an application is required any person (public notification) or those people specifically identified by Council (limited notification) have 20 working days within which to lodge a submission to the Council. Where any submissions are received:
- The Council is obliged to hold a hearing on the application (within 25 working days of the closing date for submissions); and
- Any person who lodged a submission is entitled to lodge an appeal to the Environment Court in respect of any decision that is made by the Council (within 15 working days of receiving the Council’s decision).
The RMA does not impose a duty on an applicant to consult with any person about their proposal. Despite this Councils may require that the written consent of affected persons or organisations be obtained to avoid notification proceedings.
It is good practice to undertake consultation with potentially affected persons / organisations before lodging an application with Council. This can help avoid delays in the consent process and allows proposals to be designed with regard to concerns that other people / organisations may have.
Where written consents are obtained from people, the RMA is clear that Councils cannot take into account any effect on those people when they are making their decision on an application.
The RMA sets out timeframes and procedures that must be followed by Council in making decisions on resource consent applications. Where an application is not notified a decision must be made within 20 working days of the application being lodged with Council. Where an application is notified a decision must be made either within 15 working days of the hearing closing or, where a hearing is not held, within 20 working days of the closing date for submissions.
In considering an application for resource consent Council must have regard to any actual or potential effects of allowing a proposed activity; the relevant provisions of documents / policies prepared under the RMA by the Council, Regional Council or Central Government; and any other matter the Council considers relevant and reasonable necessary to determine the application.
Council must not have regard to trade competition, the effects of trade competition or any effect on a person who has given their written consent to the proposed activity (unless this is withdrawn before the decision is made). Council may also disregard an adverse effect of a proposed activity where the district or regional plan actually provides for activities with that type of effect as a permitted activity.
A Council may decline resource consent because inadequate information has been priovided. Subdivision consents can also be declined if Council considers that:
- land or buildings are likely to be subject to natural hazards; or
- any subsequent use of land could accelerate, worsen or result in natural hazards; or
- provision has not been made for sufficient legal or physical access to each lot
Where a resource consent application has been notified and submissions have been received the Council (on its own initiative or at the request of the applicant or a submitter) may invite or require the applicant and submitters to attend a meeting to clarify or to facilitate a resolution to any issues raised by submissions that have been received.
If a person who is required to attend a meeting fails to show up, without a reasonable excuse then the Council may decline to process the application (where the applicant has not attended) or to consider the submission of a person who did not attend. There is no right of appeal to the decision of Council in this respect however an objection to the Council may be made. In addition to pre-hearing meetings, Council with the consent of the concerned parties may also refer the applicant and submitters to enter into mediation.
Where a decision relating to an application under the RMA has been made by Council Staff under delegated authority, the applicant may lodge an objection to that decision to the Council. A right of objection applies to the following circumstances:
- Where an existing use certificate or certificate of compliance is not granted
- Where an application for resource consent is declined
- When a resource consent application is rejected by Council Staff as being incomplete
- When further information is requested in relation to an application
- When an application to change / cancel consent conditions is not granted by Council
- In relation to conditions imposed on a resource consent
- With respect to the decision of Council to undertake a review of conditions imposed on a resource consent
- When Council on application declines to cancel or vary a consent notice condition
- When Council on application does not allow an existing use whose resource consent is about to expire to continue to operate pending the grant of a new resource consent
- Where Council on application declines to extend the period after which a resource consent lapses
- Where Council declines to process an application for resource consent or to consider a submission made on a resource consent application because they failed to attend a prehearing meeting and did not give a reasonable excuse for their non-attendance
- Where an applicant is required to pay an additional charge relating to the processing of an application
Any objection must be lodged within 15 working days of the receiving the decision. The objection must be in writing and is required to set out the reasons for the objection. The objection must be considered by the Council within 20 working days of its receipt. Once a decision on the objection is made, it must be released within 15 working days.
Some Councils will require the payment of fees to process and consider an objection, other Councils will wear this cost. Where a decision has been made by a Council in the first instance there is no right of objection back to the Council in respect of any decision made. In these situations an appeal must be lodged with the Environment Court.
An applicant and any person who made a submission have the right to appeal to the Environment Court against the whole or any part of a decision made by Council relating to an application for resource consents, an application to change or cancel consent conditions or on a review of consent conditions. An appeal to the Environment Court is in addition to the right of objection to a Council. In some circumstances there is also the ability to appeal straight to the Court and bypass the Council objection process.
Where an appeal is lodged with the Environment Court, the Court in most circumstances will try to avoid a hearing. In the first instance the parties involved in the appeal will be offered court assisted mediation to try to resolve any issues. Where mediation fails a court hearing will be scheduled. In most instances legal representation will be required.
Where an appeal is not successful then the Court has the power to award costs against the unsuccessful parties.