Streamline the notification and hearing process

Problem

222. Decisions on whether to non-notify, limited notify or publicly notify are made on almost all resource consent applications, subject to the tests set out in the RMA. These tests have two difficulties that contribute to uncertainty for applicants, councils and other parties. Firstly, the public notification test for resource consent applications is based solely on the adverse environmental effects of the proposal and does not take into account whether the relevant plan anticipates the proposed activity. This means that district and regional plans, which have been subject to full consultation process prior to becoming operative, can be ‘re- litigated’ at the consent stage. Secondly, the thresholds for limited notification and public notification overlap. This means that, in some cases, the council’s decision on the form of notification is difficult and poses legalrisks.

223. A further problem is that the scope for making submissions and advancing appeals against consent decisions is very wide. Submissions may be made on any aspect of a notified application, and any person who makes a submission can subsequently appeal the decision. This undermines the purpose of notification and seeking submissions, which is to give decision-makers useful, focussed input. Submitters have the false impression that they can influence any aspect of a proposal, and decision-makers and applicants have much more work in managing that input and, in some cases, mounting rebuttalevidence.

224. Additionally, any person who makes a submission has a right to appeal the decision to the Environment Court, even where their original submission was unrelated to the effects of the proposal. This gives submitters a lot of power to oppose developments, as even the threat of such an appeal (and the delay it creates) creates costs and other difficulties forapplicants.

225. The scale of this problem has increased over time, though is difficult to quantify as the system does not record the different decisions applicants might make because of uncertainty in the system or the threat of appeal. The current process requires council time and resources to justify decisions made around notification because of the potential threat of legal action through judicial review, even for relatively minorconsents.

Proposal

Clarifying the notification process and involvement of affectedparties

226. The proposal will clarify the notification provisions for certain types of applications and set out a new stepped approach for determining whether to notify an application. This will clarify when public notification is mandatory and when it is precluded for certain types of applications (controlled activities, boundary activities, subdivisions and residential activities that are not non-complying activities). A further clarification will require the adverse effects of activities to be assessed in the context of the objectives and policies of the relevantplan.

227. In addition, the proposal will refine consideration of affected parties for limited notification of district land use activities (eg, housing, commercial and industrial activities and agriculture). This is appropriate as the effects of land use activities are most prominent in the immediate surroundings and diminish away from thesite.

228. This change will create the following two-step test for all district land useapplications:

· Public notification test: councils examine the environmental effects for both adjacent and non-adjacentland.

· Limited or non-notification test: councils examine the effects on people who own or occupy adjacentland.

229. In addition to this new approach to notification, the proposalwill:

· require councils to identify the specific adverse effects that bring them to decide to notify anapplication;

· record those specific effects and include them in the public notice;and

· require submissions to be focussed on thoseeffects.

Regulation makingpowers

230. The proposal will also include a new regulation making power to enable regulations that can specify applications which must be processed without public notification, and restrict the persons who may be considered affected by that activity to certain types of named person (identified in theregulations).

231. This proposal will be particularly relevant in residential zones by simplifying the council’s decision-making process by removing the need to assess effects and justify decisions regarding more peripheral parties for certain specifiedactivities.

Narrow submitters’ input to reasons fornotification

232. If submissions on notified resource consent applications do not meet certain criteria, they must be struck out. Submissionsmust:

· be related to the reasons fornotification;

· be supported byevidence;

· have a sufficient factualbasis;

· if pertaining to be independent expert evidence, be made by a person with suitable experience andqualifications.

233. If a submitter’s submission is struck out, no Environment Court appeal against the consent decision will beavailable.

234. The proposals will focus input from submitters on the most important matters and remove the threat of submissions and appeals on trifling or irrelevant matters while ensuring that those with genuine and relevant input retain full rights of participation andappeal.

235. The proposed changes will also avoid unnecessary time, cost and uncertainty implications for activities that are broadly consistent and/or anticipated by the applicable plan. The changes will provide a clear assessment process if the RMA, regulations, or plans specify that public or limited notification isprecluded.

236. In residential zones in particular, but for district land use activities generally, this proposal will simplify the council’s decision-making process on notification by removing the need to assess effects and justify decisions regarding more peripheral parties. It will also reduce the risk of judicial review and avoid it from any party other than specified parties. This will benefit the majority of applicants for consents for land use activities that ‘fit’ with the relevant plan, including residential housing developments, commercial and industrial activities, and help councils by relieving them of the current assessmentrequirements.

237. Risks of the proposal include that it will increase complexity for the process of determining who can be involved in resource consent processes. This may cause additional costs in the short term for both councils and applicants until practice is established that reflects the new notificationframework.

238. Better information about the investment decisions that private individuals, developers and organisations make as a result of the current system would help to fill gaps in knowledge about applicant behaviour in the consenting system. There also appears to be a gap in knowledge about the actual and perceived constraints of the system. For example, one difficult experience of consenting a proposal in one area of the country may play out quite differently in another but the applicant will take a conservative approach as a result of the firstexperience.

239. Much of the information coming out of the National Monitoring System (see Monitoring and Evaluation section below) will greatly assist in establishing trends in both council and applicant behaviour that will inform decisions about how to achieve the right level of involvement in resource consentapplications.

Alternativeoptions

Altering thresholds anddefinitions

240. Changing the threshold for notification of applications – the requirements in the RMA that determine notification of the public or individuals could be changed. However, changing thresholds will still not address the need for certainty in the system around notification. This option was therefore not considered appropriate for addressing the problems identified aroundnotification.

241. Changing the definition of an affected party – the definition of an affected party could be changed to include criteria other than the environmental effects occurring against that person. This is not considered appropriate because the legislation is intended to control effects and other types of assessment would not beappropriate.

242. Changing the activity classes for types of consent applications – a different structure or hierarchy of consent type could be introduced which would then have specific notification requirements attached to them. This option could assist to clarify notification but would involve more structural change in the legislation that would then have other consequences for the consenting system. This would be undesirable when there are better methods for clarifying notificationrequirements.

Conclusions

243. These proposals are considered to contribute towards the objective of making Resource Management decisions more robust and durable. Participation and engagement in consenting processes will be more proportionate to the activity and will support decisions made up front in plan-making processes that have themselves involved significant consultation andengagement.