1.jpg2.jpg3.jpg

Decisions not to notify of a resource consent applications- The law might change, by Eugene Duhovnikoff BA/LLB

The current section of the Resource Management Act dealing with public notification of resource consent applications is section 95A which reads as follows: 

Public notification of consent application at consent authority’s discretion

(1) A consent authority may, in its discretion, decide whether to publicly notify an application for a resource consent for an activity.

(2) Despite subsection (1), a consent authority must publicly notify the application if — (a) it decides (under section 95D) that the activity will have or is likely to have adverse effects on the environment that are more than minor; ....

This section was inserted into the Act from 1 October 2009 by the Resource Management (Simplifying and Streamlining) Amendment Act 2009.

The previous section which dealt with this issue was now repealed section 93, which provided:

Notification of applications

(1) Once a consent authority is satisfied that it has received adequate information, it shall ensure that notice of every application for a resource consent made to it in accordance with this Act is — ... (g) Publicly notified; ... unless the application does not need to be notified in terms of section 94.

 

The range of circumstances in which applications did not require notification was set out in section 94. Particularly, according to now repealed section 94(2 that non-notification was not required in the following circumstances:

(2) An application for a resource consent need not be notified in accordance with section 93, if the application relates to a discretionary activity or a non-complying activity and —

(a) the consent authority is satisfied that the adverse effect on the environment of the activity for which consent is sought will be minor; and

(b) written approval has been obtained from every person whom the consent authority is satisfied may be adversely affected by the granting of the resource consent unless the authority considers it is unreasonable in the circumstances to require the obtaining of every such approval.

The leading authority on this matter, decided under the old statutory regime was a decision of the Supreme Court in Discount Brands Ltd v Westfield (New Zealand) Ltd[2]. The requirements for a decision maker determining whether or not to notify a resource consent application under the old regime were:

[114] So, in summary to this point, the information in the possession of the consent authority must be adequate for it (a) to understand the nature and scope of the proposed activity as it relates to the district plan; (b) to assess the magnitude of any adverse effect on the environment; and (c) to identify the persons who may be more directly affected. The statutory requirement is that the information before the consent authority be adequate. It is not required to be all-embracing but it must be sufficiently comprehensive to enable the consent authority to consider these matters on an informed basis.
[115] The statutory requirement addresses more than the scope of the information. The consent authority must necessarily be satisfied as well that the information is reliable, especially so where an expert opinion is tendered. The authority will need to consider whether the author of the opinion is both appropriately qualified to speak on the subject and sufficiently independent of the applicant so as to be seen as giving expert advice rather than acting as an advocate for the applicant.
[116] Because the consequence of a decision not to notify an application is to shut out from participation in the process those who might have sought to oppose it, the Court will upon a judicial review application carefully scrutinise the material on which the consent authority’s non-notification decision was based in order to determine whether the authority could reasonably have been satisfied that in the circumstances the information was adequate in the various respects discussed above.

In Coro Mainstreet (Inc) v Thames-Coromandel District Council[3] these requirements were applied  against the new Resource Management regime.

The facts of the case are: this was an appeal against a decision of the High Court dismissing the application made by the appellant, Coro Mainstreet (Inc), for judicial review of a decision made Thames-Coromandel District Council (TCDC), not to notify a resource consent application made by the th National Trading Company of New Zealand Ltd (NTC). The application was to do with the proposal to demolish a motel building in Coromandel Town and construct a new Four Square grocery store. While the Court of Appeal’s comments can be considered orbiter dicta and as a matter of fact O’Regan P. has said so,[4] the Court of Appeal has outlined the specific four points of difference between the present s 95A and the provisions under consideration in Discount Brands. These were[5]:

(a) The presumption in favour of notification has been removed, and replaced with a discretion whether to notify an application. (b) The word “satisfied” has been replaced by “decides”. In Discount Brands the Chief Justice had commented that the use of the term “satisfy” could be contrasted with the use of the term “decides” in other sections of the Act, and implied a higher degree of certainty than provisions where the term “decides” was used.10 (c) The consent authority must now “decide” whether the adverse effects “will have or are likely to have” effects that are “more than minor”. This contrasts with the provision in issue in Discount Brands which required the consent authority to be “satisfied” that the adverse effects on the environment “will be minor”. (d) There is now no express requirement that the consent authority have “adequate information” before making a notification decision. However, as noted above, this requirement was removed in 2003, so was already a feature of the legislative regime before the 2009 amendment.

The fact that s 93(1) specifically required that the authority had to be “satisfied” that it had received “adequate information” before making a notification decision was clearly a factor of Blanchard J's analysis.1] Overall it was held that the possibility that the substantial amendments to the relevant provisions of the Act since the decision in Discount Brands, which were directed at providing greater facility for non-notification, had altered the law as articulated in Discount Brands and needed further evaluation. Thus although the Discount Brands is still the law for now there a real probability that it won’t be so in the near future and the law dealing with public notification of resource consent applications would be relaxed.

 --------------------------------------------------------------------------------  

[1] [2005] NZSC 17, [2005] 2 NZLR 597.

[2]Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665 at para 43.

[3] Ibid at paras 39.

[4] Ibid  at para 37. 

 

No advice

This website contains general information about legal matters. The information is not advice, and should not be treated as such.

 

Limitation of warranties

The legal information on this website is provided “as is” without any representations or warranties, express or implied. The Reeves Duhovnikoff & Associates Ltd. makes no representations or warranties in relation to the legal information on this website. Without prejudice to the generality of the foregoing paragraph, Reeves Duhovnikoff & Associates Ltd. does not warrant that: the legal information on this website will be constantly available, or available at all; or the legal information on this website is complete, true, accurate, up-to-date, or non-misleading.

 

Professional assistance

You must not rely on the information on this website as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about any legal matter you should consult your attorney or other professional legal services provider.

Reeves/Duhovnikoff & Associates Ltd. 2017

Disclaimer

Яндекс.Метрика
SSL