KEY POINTS:
Q. I have heard that an application for resource consent has been filed with the council for a large development in our neighbourhood. However, I am not sure whether I am able to make a submission. If not, do I have any other rights?
A. Councils receive applications for resource consent on a daily basis and some receive 1000s each year. After a council is satisfied that the application contains enough information to proceed, it decides whether the application is to be processed on a non-notified, limited notified, or publicly notified basis. This decision determines whether you are entitled to make a submission.
This turns on the level of adverse effects generated by the application: in particular, whether or not in the opinion of council staff processing the application the level of adverse effects is "minor" or "more than minor". The Resource Management Act 1991 (RMA) allows applications for resource consent with only minor levels of adverse effects to be processed on a non-notified or limited notification basis. Applications with more than more minor adverse effects (except applications for activities described in district or regional plans as a controlled activity) must be publicly notified by the council. So, until the council has undertaken this assessment, it will not be in a position to tell you whether you are legally entitled to make a submission. Adverse effects the council would most likely consider in an assessment might include (but not be limited to) construction effects such as noise, additional traffic, water run off and storm water, effects on infrastructure and any loss of amenity or natural character.
If the application is processed on a non-notified basis, no submissions may be made opposing or supporting the application.
The council will simply decide whether the application should be granted after having considered the information provided by the applicant. If the application is processed on a limited notification basis, only people who the council considers could be adversely affected and who accordingly have been served with notice of the application, have a right to make a submission. This might include the immediate neighbours to the application site who will experience the greatest amount of dust and noise during the construction period and the greatest ongoing loss of amenity . If the application is publicly notified any person can make a submission, regardless of whether or not they are affected by the proposal. Publicly notified applications are usually advertised in the local newspaper, and a copy of the application can be inspected at the council's offices.
If you disagree with the council's decision on notification, the only way to dispute that decision is to apply to have it judicially reviewed in the High Court. In a judicial review the role of the High Court is to review the decision of council staff, look at the matters that they took into account (or failed to take into account), and decide whether the decision was unreasonable or failed to comply with the relevant tests regarding non-notification set out in the RMA. The court cannot substitute its own view on whether or not the application should have been notified for the view of council staff. However, it can quash the council's decision if it finds there has been an error, and require the council to consider the matter again. Sometimes it will give directions as to a particular matter that needs to be taken into account, or should be excluded from consideration.
The vast majority of applications for resource consent around New Zealand are processed on a non-notified basis with no submissions from the public. This reflects the fact that many applications for resource consent are fairly straightforward and will result in only very minor levels of adverse effects. However, in the case of larger and more significant applications, the courts have consistently held that there is a presumption in favour of public notifications and people being able to "have a say".
* The information contained in Prime Assets is intended to provide general information in summary form current at the time of printing. The contents do not constitute legal advice and should not be relied on as such. Specialist advice should be sought in particular matters.
