Assessing the application and the assessment of environmental effects

Abstract

An application for resource consent requires the applicant to supply an assessment of environmental effects (AEE). The council's role is to audit the AEE. This guidance note provides information about assessing an application once it has been formally 'received' by the council and recording the assessment.

This note should be read in conjunction with the Receipt of an application guidance note which addresses the checks that should be carried out before an application is formally received for processing. It is important to carry out these checks prior to accepting an application under s88(2) to encourage a good quality application, which in turn assists in assessing the application once received and meeting statutory time frames.

back to top

Guidance note

• Assessment
• Have the appropriate consents been applied for?
• Have the appropriate effects been identified and addressed?
• Determining the extent of adverse effects
• Are there any aspects of the application that need specialist advice?
• Checking the title, property file and computer records
• Site visits by council officers
• Notification
• Report writing

Assessment

Before an application is received it is necessary to check a number of matters as outlined in the Receipt of an application guidance note. A particular emphasis should be placed on only accepting applications which include an adequate AEE in accordance with s88(2) and an appropriate level of other information as required by s88(3).

The three key functions of assessing the application, which are carried out both prior to receiving the application and in greater detail following receipt of the application, are:

1. checking whether appropriate consents have been applied for
2. checking whether all appropriate effects have been identified and addressed and whether there are others that need addressing to meet the requirements of the Fourth Schedule of the Act
3. determining the extent of the effects and who may be adversely affected.

To assist the assessment of applications it may be useful to develop a checklist for the council officer to work through. See Example: Checklist for processing officer (MS Word 89KB).

It is also good practice for the council officer allocating applications to allocate them to officers with the relevant level of competency for each application. For example, more complicated or contentious applications should be allocated to the more experienced officers with simpler ones going to those with less experience.

It is also ideal for the application to be allocated to the council officer who dealt with the ss88(2) and (3) check if possible, as they will already be familiar with the application.

back to top

Have the appropriate consents been applied for?

The council officer needs to determine if all the necessary resource consents have been applied for. In order to make this judgement, the council officer needs to check for compliance with the relevant plan(s) rules and relevant matters under the RMA. When undertaking this check, the council officer should also make note of:

• the degree of non-compliance
• whether the plan requires any particular affected party's written approvals or conversely whether the plan expressly does not require written approvals
• whether written approvals have been obtained
• the type of activity and the associated environmental effects likely to occur from a permitted activity on the site.

If the applicant has not addressed all of the reasons for resource consent or non-compliances, the applicant should be requested to acknowledge any outstanding non-compliance(s) in writing. This ensures the applicant is aware of all of the reasons for resource consent and to ensure that any actual or potential effects arising from additional non-compliances are addressed.

Keep a record of the check against the plan rules on the consent file so it can be easily referred to throughout the processing of the application. This will also allow other council officers to answer queries about the application in the absence of the actual processing officer.

back to top

Have the appropriate effects been identified and addressed?

The AEE should contain detail that corresponds with the scale and significance of the effects that the activity may have on the environment. For example, a small development such as a garage within the required setback from a side boundary, only requires a short and less detailed AEE. In comparison, a proposed coal mine will have considerably more significant effects and therefore should have a much more detailed AEE.

The effects that should be considered for inclusion in an AEE are:

• effects on those in the neighbourhood and wider community including any socio-economic and cultural effects
• physical effects on the locality including landscape and visual effects
• effects on ecosystems including effects on plants or animals and the physical disturbance of habitats in the vicinity
• effects on natural and physical resources having aesthetic, recreational, scientific, historical, spiritual or cultural, or other special value for present or future generations
• any discharge of contaminants into the environment, including any unreasonable emission of noise and options for the treatment and disposal of contaminants
• any risk to the neighbourhood, wider community or the environment through natural hazards or the use of hazardous substances or hazardous installations.

The terms 'effect' and 'environment' under the RMA are broadly defined. It is the role of the AEE to identify and address actual and potential effects of a proposal on a particular environment. The term effect includes:

• Positive and adverse effects - both of these effects should be considered regardless of their scale and duration. It is also important to remember that the assessment is not about achieving a balance between the two but ensuring adverse effects are avoided, remedied or mitigated (see Campbell v Southland District Council W114/94 and Boddy v Grey District Council W88/94).
• Temporary and permanent effects -there are many effects associated with proposals that are often temporary, such as those relating to a temporary event. It is important to make the distinction in the assessment between effects that are temporary versus those that are permanent.
• Past, present and future effects - in addition to past and present effects it is also important to consider forecast effects as some effects may take time to show and consideration should be given as to whether these effects are of high or low probability at any time in the future.
• Any cumulative effects regardless of degree or element of risk - an adverse cumulative effect is an effect, when combined with other effects, is significant only when it breaches a threshold. It should not be confused with matters relating to precedent (see Dye v Auckland Regional Council 11/9/01 CA86/01).
• Any reverse sensitivity effects - situations where a potentially incompatible land use is proposed to be sited next to an existing land use. Refer to the Planning for the wine industry and Managing land transport noise under the RMA guidance notes for examples of reverse sensitivity effects.

All of these effects must be considered regardless of their scale, intensity, duration, or frequency. It should also be considered whether potential effects are of high and/or low probability and could have a high potential impact.

The effects to be considered will depend on the type of application and the nature of the activity proposed. For controlled and restricted discretionary applications:

• List the effects that need to be considered in accordance with the matters over which the council has reserved control or discretion in its plan or proposed plan, or which control is reserved in national environmental standards or regulations.
• Check that the assessment does not venture into other areas outside of those matters reserved in the relevant plan or proposed plan, national environmental standards or regulations. Do not be tempted to address other matters just because the applicant has chosen to do so.

For discretionary and non-complying applications:

• Identify all of the potential effects of the activities, not simply the non-conforming aspects.
• List the effects the AEE identifies and those it does not that are relevant for consideration.
• Use the relevant issues, objectives and policies in the plan to identify any effects that may need to be addressed.
• Distinguish the nature, extent and magnitude of the effects and the significance of their effect on the environment.
• Identify the impact of the effects (eg, instantaneous, continuous or intermittent, of long or short term duration).

For each effect, summarise any assessment techniques used. Check:

• Has the effect been adequately assessed?
• Is the assessment accurate? (Is it based on sound predictions or just guesswork?) Are the anticipated results justified?
• In the particular environment, is the effect likely to combine with any other identified effect (be cumulative)?
• Are there any mitigation measures proposed?
• What is the effect's significance judged to be?
• If they are not minor, are the remaining effects acceptable?
• Are the effects confined to the site and adjacent land or do they extend to the wider environment?

back to top

Determining the extent of adverse effects

Determining the extent of any adverse environmental effects is paramount to determining whether or not an application can be considered on a notified, limited notified or non-notified basis and also in determining if an activity is appropriate under ss104 and 105 of the RMA.

When determining the extent of adverse effects, it is good practice to think about the level of effects along a continuum to ensure that each effect has been considered consistently and in turn cumulatively. This continuum may include the following effects:

• Nil Effects
  No effects at all.
• Less than Minor Adverse Effects
  Adverse effects that are discernable day-to-day effects, but too small to adversely affect other persons.
• Minor Adverse Effects
  Adverse effects that are noticeable but that will not cause any significant adverse impacts.
• More than Minor Adverse Effects
  Adverse effects that are noticeable that may cause an adverse impact but could be potentially mitigated or remedied.
• Significant Adverse Effects that could be remedied or mitigated.
  An effect that is noticeable and will have a serious adverse impact on the environment but could potentially be mitigated or remedied.
• Unacceptable Adverse Effects
  Extensive adverse effects that cannot be avoided, remedied or mitigated.

Some councils use a similar scale to assess effects based on rating the extent of the effect with a number. Either approach to scale the significance of effects could prove helpful provided that there is some guidance on how to apply the scales to different types of activities.

back to top

Are there any aspects of the application that need specialist advice?

The council officer needs to identify whether any further information and/or specialist advice is needed to process the application and assess the environmental effects further.

Specialist advice on applications is commonly obtained from internal council officers such as traffic engineers, structural engineers, landscape architects etc. However, when there is not the internal expertise or resources (including time) available to assess particular environmental effects, a council then needs to consider commissioning external experts.

The purpose of a commissioned report should be to: peer review or audit information supplied by the applicant or to undertake an assessment of certain effects that the applicant has failed to address.

If an application is contentious this is not necessarily a reason to allow the commissioning of a specialist report. If the council is concerned that they need to be seen processing an application in an impartial manner, then possibly they could appoint someone outside the council to act on their behalf. For example, an external section 42A reporting officer could be appointed which may provide the required impartiality.

Sections 41C(4) and 92(2) allow councils to commission a report from a specialist when:

• the activity may have a significant adverse environmental effect; and
• the applicant is notified in writing of the reasons for requesting the report; and
• the applicant agrees to the commissioning of the report.

Section 41C(4) allows for the commissioning of a report at the hearing stage and s92(2) allows for the commissioning of a report at any reasonable time before a hearing or, if no hearing is to be held, before the decision is made.

The applicant has 15 working days to advise the council in writing whether the commissioning of a report under s92(2) is agreed to. The council must continue to process and consider the application under s104 if the applicant does not respond or refuses to give their agreement to the commissioning of a report. For more information on commissioning a report see Requesting further information.

There is no time frame within which the applicant is required to reply with respect to a request for a report at the hearing stage under s41C(4). However, there is a general duty to avoid unreasonable delay.

Helpful tips for involving specialists in the auditing of AEEs or providing specialist advice absent in the AEE:

• Discuss the type of information the specialist, either internal or external, will provide.
• Where external specialist advice is being sought, give the applicant the opportunity to obtain the required information themselves if they want to. If this is not practicable, advise them of the anticipated cost of the specialist advice and potential involvement at a pre-hearing meeting and/or hearing and check that they still wish to go ahead.
• Select an appropriate specialist and ensure they have the skills required to do the job. If it is an external specialist, check that they have no conflict of interest.
• Brief the specialist about what is required of them (particularly if they are external to the council or the application is complicated, large, or unusual), setting out specifically what the objectives are and what is anticipated that their report will include. A specialist should be provided with all the relevant information from the application, the relevant plan(s), copies of submissions and/or written approvals, a defined scope of work etc. The more relevant and complete the information given to them then the more relevant and complete their assessment will be. It is useful to alert the specialist to the relevant objectives, policies and plan rules that the application is being assessed against.
• Set clear time frames and cost guidelines or a fixed price.
• Ask the specialist to investigate at the outset if any research should be undertaken and get them to gain the council's approval before going ahead with it.
• Clearly specify the report to include any recommended mitigation measures and conditions of consent.
• Advise them if they will likely be required at a hearing and/or pre-hearing meeting.

Example: Letter for commissioning report from an expert (MS Word 27KB)

back to top

Checking the title, property file and computer records

Checking the title, property file and computer records for the site will familiarise you with both the history of the site and any particular restrictions that might apply to the use of the site. There may have been previous applications on the site, illegal buildings or activities, or restrictions on the title that might influence the AEE and subsequent assessment. In particular, the title may contain consent notices or covenants, and identify rights-of-way and easements that may affect how the property can be subdivided, used or developed. See Reading and interpreting titles for more information.

back to top

Site visits by council officers

The site visit is a vital part of the assessment process as it allows an 'on the ground' check of the application's accuracy. It also helps to identify which parties may be adversely affected.

Determining when to undertake a site visit is also important. It is good practice to do it as soon as possible after receiving and assessing the application and before any request for further information is made. This enables the council officer to have a clear understanding of the site and any further information that may be required to assess the environmental effects.

A site visit should be planned so that the council officer is certain of the particular aspects of the site that need to be investigated and recorded. Where necessary and practicable, site visit(s) should also be planned during times and conditions when it is considered best to assess the potential effects. For example, when considering a proposal such as a crèche which has an on-site parking shortfall, visits to the site should ideally be during the times of peak parking demand so that the effects, such as the impact on on-street parking, noise etc, can be more accurately assessed.

It is important that all pertinent information about the site is recorded as completely and accurately as possible to avoid having to visit the site again to check things. However, more than one site visit at different times of the day may be warranted for more significant proposals in order to thoroughly assess the effects.

It is also courteous to phone the applicant prior to going on-site to advise them when the site visit is planned. In addition there may be access restrictions or potential hazards on-site that need to be discussed with the applicant prior to the visit. Carrying identification on site is also advisable should anyone enquire about your reasons for being on the site.

In some cases the applicant may wish to be present at a site visit and this can in some instances help to clarify issues on site. Alternatively, the council officer can visit the site alone, particularly if the site is easily accessed and traversed and the proposal is relatively straightforward.
The checklist for site visits (MS Word 30KB) provides a useful template from which to organise and base a visit.

Consultation

Section 36A of the RMA specifically states that there is no duty to consult any person about resource consent applications and notices of requirement. This applies to both applicants and councils. Nevertheless, for many resource consent applications and notices of requirement, consultation will play a significant role in assessing the effects. Further details and methods of consultation are contained in Consultation for resource consents and Facilitating consultation with Tāngata Whenua.

What to tell the neighbours

While on a site visit if neighbours approach to ask what is happening, the council officer can discuss the proposal with them (the application is public information). These discussions can contribute valuable knowledge to the assessment. However, as the applicant is generally paying for the officer time spent on the site visit, conversation should be kept to a minimum and remain objective and factual.

Making a permanent record of the site

Photographs of the site can be particularly useful for identifying elements on the site or for discussing the potential effects with other people (including any peer reviewer). For medium or complex applications, individual photographs or montages can help in making recommendations, in decision making and monitoring, and is a particularly good record of any unusual site features (eg, vegetation or topography).

Record exactly when the photo was taken, where it was taken from and through what sort of lens.

back to top

Notification

Once all of the necessary information has been obtained to determine the extent of adverse effects and whether there are any potentially affected parties, the council officer reporting on the application should then be in a position to determine if the application should be notified, limited notified or non-notified. See To notify or not to notify? That is the question! for guidance on notification.

Report writing

Report(s) on the application prepared by the council processing officer will help inform those making a decision on the application. Therefore is it important that these reports are concise and well reasoned and provide an accurate description of the scale and significance of the anticipated environmental effects from the proposed activity.

The section 42A report needs to provide an assessment of the application and the anticipated adverse environmental effects. The report must determine the extent, scale and nature of the effects associated with an activity and what the impact of these effects will be (ie, are they nil, less than minor, minor, more than minor, significant, unacceptable).

Where the applicant's AEE is thorough and the council officer/decision maker agrees with the AEE, the s42A officers report does not need to repeat material from the AEE included in the application, but may adopt the AEE in whole or in part. This also applies to decisions on notified applications under s113(3).

• Example: Notified report for hearing (MS Word, 101 KB)
• Example: Non-notified report (MS Word, 39 KB)
• Example: Non-notified report for hearing (MS Word, 42 KB)

back to top

Forms and checklists

• Example: Checklist for processing officer (MS Word, 89 KB)
• Example: Notified report for hearing (MS Word, 101 KB)
• Example: Non-notified report (MS Word, 39 KB)
• Example: Non-notified report for hearing (MS Word, 42 KB)
• Example: Letter for commissioning report from an expert (MS Word, 27 KB)
• Example: Checklist for site visits (MS Word, 30 KB)

back to top

Case law

The following cases contain discussion on application and AEE assessment matters (also see Summary of case law on notification under the RMA).

Campbell v Southland District Council W114/94 and Boddy v Grey District Council W88/94 (PT) - addresses how to consider beneficial effects of a proposed activity.

Dye v Auckland Regional Council 11/09/01 CA 86/01 - this decision provides commentary on how to consider cumulative effects and how these can be distinguished from precedent effects.

Bethwaite v Christchurch City Council C85/93 (PT) and Stokes v Christchurch City Council EnvC C108/99 - when considering actual and potential effects of an activity, any mitigation of effects through the imposition of conditions may be considered. This decision also provides commentary on the meaning of 'minor' effects.

Barrett & Others v Wellington City Council [2000] NZRMA 481 and Smith Chilcott Limited v Auckland Regional Council [2001] NZRMA 503 - comparing effects anticipated against those permitted by the plan to occur on site (permitted baseline).

Marlborough District Council v NZ Rail Ltd and Sea Shuttles Ltd [1995] NZRMA 357 (PT) - an adverse effect must be perceptible and not the type of effect that one might normally experience in the day to day activities of society.

Shirley Primary School v Christchurch City Council EnvC C136/98 - this decision discusses effects of low probability but high potential impact.

back to top

Relevant publications

Auditing Assessments of Environmental Effects: A Good Practice Guide
Published by Ministry for the Environment - March 1999
This guide outlines good practice for regional and district councils in auditing assessments of environmental effects. The Resource Management Act requires each resource consent application to be accompanied by an assessment of environmental effects. Councils need this information to make informed decisions on granting resource consent and setting conditions to control potential effects.

A Guide to Preparing a Basic AEE
Published by Ministry for the Environment - August 2006
An assessment of environmental effects must accompany each application for a resource consent under the Resource Management Act. This guide is intended to help applicants understand the process and prepare a simple assessment of environmental effects.

When is Enough, Enough? -Dealing with Cumulative Effects Under the RMA
Report by Phillip Milne, Simpson Grierson - February 2008
This paper addresses some case law relating to cumulative effects and provides ideas on ways to assess and address cumulative effects under the RMA.

back to top

Relevant websites

The following are two websites that may be of assistance and are relevant to this guidance note:

The Auckland Regional Council contains a webpage on what to include in an AEE: Auckland Regional Council's Applying for a resource consent.

The Dunedin City Council has a pamphlet on assessment of environmental effects available electronically. This guide for the applicant includes an outline of what to include in an AEE, as well as examples of possible effects of interest to the Dunedin City Council. Go to Dunedin City's Councils Assessment of Environment Affects pamphlet.

back to top

Related guidance notes

• Receipt of an application
• Consultation for resource consents
• Facilitating consultation with tāngata whenua
• Reading and interpreting titles
• Requesting further information
• To notify or not to notify? That is the question
• Making a decision on the application

Current challenges in practice

Determining the significance of adverse environmental effects

In some instances it can be a challenge to determine the extent or significance of the adverse effects associated with a particular activity and whether they can be successfully mitigated throughout the life of the project. This determination is important not only for the notification thresholds under ss95A-95F, but also the decision to grant or refuse consent under ss104 and 105.

The lifting of the threshold for public notification to the consideration of effects that will be or are likely to bemore than minor is intended to shift the consideration of effects to those that have a probability of being more than minor. This changes the threshold to considering effects that are probable as opposed to hypothetical or less significant. This may be a challenge as practice changes.

Determining the significance of adverse effects is also particularly difficult when dealing with new types of projects, or existing types of operations which are now using new and improved technology. To address this challenge care should be taken to keep officers informed about new technology and to assist in determining the extent of effects through good assessment systems.

The permitted baseline technique is a sound base from which to work. However, where a permitted baseline is not of particular relevance to an activity then considerable thought needs to be given to the extent of adverse effects and when they might trigger an adverse cumulative effect or become more than minor in scale.

Determining the extent of any cumulative effects

Determining when the cumulative impact of an activity, or the cumulative effect of all like activities has reached a threshold where the adverse effects will be significant or unacceptable, can be extremely difficult. This is particularly if the assessment relates to activities that are not easily quantified. For example, the extent that another small allotment created by a subdivision in a rural area may have on residential density in an area.

Determining the extent of cumulative effects can be assisted by gaining specialist advice on different applications. However, assistance might be better provided through commissioning specific studies outside the resource consent process that determines what levels of development may be acceptable in the future. This would provide a more proactive approach for guiding processing planners, rather than a reactive approach. However, it can be challenging convincing councils to attribute funds to this type of research.

Refer to When is enough, enough? - Dealing with cumulative effects under the RMA for a more detailed discussion on cumulative effects.

Reporting on the significance of the adverse effects on the environment

Once having decided about the extent of any adverse environmental effects, it can then be challenging to report this finding succinctly so the applicant and decision makers can recognise the judgement is justified. Reporting on the effects needs to be simply expressed and soundly reasoned.

The reasons for the decision may still require expansion in the report on environmental effects. If there is concern that a particular effect may be contentious then it is preferential that the explanation is carefully justified in the report, and this is particularly important for notified applications. This will inform the decision and may assist in reducing objections/appeals/judicial reviews at a later date.