This short article touches upon the thorny issue of notification of resource consent applications, a topic which has been addressed by the High Court in two recent decisions.
Notification is a term used to describe how a resource consent application is to be processed with respect to allowing input from other people. Both High Court decisions highlight the importance of paying close attention to the Resource Management Act 1991 (RMA) notification provisions contained in sections 95A to 95E.
Public notification which involves four steps (section 95A):
- Step 1 sets out circumstances when an application must be notified (applicant’s request or that it is required under section 95C regarding failure or refusal to provide further information);
- Step 2 sets out circumstances when public notification is precluded (when a planning rule or National Environmental Standard (NES) requires public notification, when it is an application for a controlled activity, or a restricted-discretionary activity involving subdivision of land or a residential activity, or a boundary activity (see section 87AAB) or an activity prescribed by regulation);
- Step 3 provides that if public notification is not precluded at step 2, then it is required if a rule or NES requires it or the assessment of effects under section 95D determines that the activity will have, or is likely to have, adverse effects on the environment which are more than minor;
- Step 4 provides for public notification in special circumstances. If the council determines that special circumstances exist, then it must notify the application
There are three types of notification for resource consent applications: public (district wide, everyone is able to make a submission on the application), limited notification (group of people potentially affected by a resource consent application are invited to make a submission on the application) and without notification (no one is considered to be affected by the proposal).
In McMillan v Queenstown Lakes District Council [2017] NZHC 3148, Justice Mander addressed the failure of the applicant to provide information in their application and AEE document which identified the McMillans as persons affected by the activity, the consultation which had taken place and their responses. The McMillans argued the decision to grant of consent without notification to them as owners of an adjacent property resulted in a flawed process which invalidated the consent. They applied to the High Court to judicially review the Council’s decision on this basis.
The Court held that the applicant had a duty to ensure the Council as the consent authority is “properly informed” and that:
[34] If the applicant fails to identify persons affected by the activity, or to sufficiently inform of consultation that has taken place, that may be reflected in the standard of the decision achieved. The resulting inadequacy of the decision will be able to be traced to that procedural fault.
[39] A failure to provide information required to be included in an applicant’s AEE may result in that application being processed by the consent authority on an improper basis. However, the focus must be on the process itself and whether, in spite of deficiencies in the content of the application, a proper process was applied by the consent authority in determining the application for resource consent, or whether any deficiency had an impact on the integrity of that process.
In this case, the Court determined that despite failing to identify the McMillans as affected persons, the proper process had been followed as the consent authority had a letter on file from McMillian’s consultant planner which “apprised the Council of the details of their concerns”. This information was taken into account in the decision-making process. The judicial review application was unsuccessful.
However, in another case, the result was the opposite. In Rochdale Precinct Society Incorporated v Christchurch City Council [2018] NZHC 467, the Society was successful in its application for judicial review of the Council’s decision granting consent. This meant that the Council had to consider the application to operate a funeral parlour from a suburban home afresh. A key failing in the Council’s decision-making process was the incorrect assessment of breaches of rules of the plan and how this resulted in the decision not to notify the application. The High Court found that:
[161] The consequence of the decision not to notify an application is to shut out from participation in the process those who might have sought to oppose it. This means that if in a judicial review, the Court determines there has been an error, the decision not to notify, it will be an unusual case where relief is not granted.
[162] In this case, there has been no decision as to the correct analysis of the carparking requirements and other traffic requirements of the proposed activity. That needs to be done so any non-compliance is properly assessed, which will then indicate whether there are any affected parties and whether any notification is required. If the adverse effects are minor or more than minor, then affected persons are entitled to contribute to the application process and they were prejudiced if not notified.
[163] … It may be that notification would not add to the information before the Commissioner and the final outcome may well be the same regardless. Nevertheless, notification brings with it certain rights for affected parties which cannot be disregarded.
In the Rochdale case, the failure to notify impacted on the integrity of the process and the information the consent authority had to make the decision to grant consent. However, in the MacMillan case, the affected party’s concerns had been identified and considered by Council despite them not being directly notified.
Both the Rochdale and the McMillan decisions highlight the importance of ensuring that the consent authority has:
- sufficient information to make an assessment of the application, such as who may be affected by the proposed activity and/or a complete assessment of all the relevant rules of a plan; and
- followed correct process in determining whether or not to notify.
In summary, short cuts taken at this stage of an application (deciding on notification) can cause major problems at later stages. My advice is for applicants and decision makers to carefully consider the detail of the application, all affected parties and all relevant plan provisions in the decision whether or not to notify.
It is relevant to note that both High Court decisions were made under the RMA prior to the amendments introduced in 2017, however in my view this does not have any bearing on the relevance of these two decisions.
