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Notified and limited notified resource consent applications

Abstract

There are two types of notified resource consent applications - those that are publicly notified which allows anyone to lodge a submission in support or opposition to an application, and those that are served on affected parties only allowing only those parties served notice to lodge a submission. This Guidance Note provides information on the notification processes, submissions, pre-hearing meetings, hearings and writing a report for a notified/limited notified application hearing.

For more information on limited notification, see the frequently asked questions page on limited notification.

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Guidance note

The process of notification

Who is notified?

When an application is to be publicly notified under sections 93(2) and 94C Resource Management Act (RMA) and Regulation 10 of the Resource Management Forms Regulations prescribe those persons that the consent authority must notify of an application. This applies to applications for:

The persons that must be served are:

For limited notified applications the Council need only serve notice on those parties identified by the Council as being adversely affected. For example, for a garage being built within the required setback along one side boundary of a property, only the adjoining land owner/occupier might be served limited notification notice and have the ability to lodge a submission.

What is sent to parties that are notified directly?

When notifying any person of an application, the notice must contain sufficient information to enable them (without reference to other information) to understand the general nature of the application and whether it will affect them.

As a general rule, the better the standard of the information supplied to these persons with the notice, the less time officers will need to spend answering questions about the application and forwarding more information to these people (see Queenspark Residents Association Inc. v Christchurch City Council).

If the application is relatively short then it may be appropriate to send a copy of the entire application to those people that are required to be notified. For larger applications you may wish to send a copy of the application form and a site location plan to give an indication of what is proposed and exactly where. Always make sure though that you have all the necessary information you need to understand and assess the application before it is notified.

The public notice

When publicly notifying a resource consent application, a consent authority (or the Minister of Conservation in the case of an application for a restricted coastal activity) must publish a notice in a newspaper circulating in the entire area likely to be affected by the proposal to which the notice relates.

The public notice must be in the prescribed form - Form 12 (MS Word 32KB) - and include:

There are a variety of ways to present this information in a notice and it is important to keep in mind that the audience is the general public who may not be familiar with the jargon and technicalities of the RMA.

Here are some good practice tips that you can be used to improve the 'user-friendliness' of the public notice, and to help the public interpret and understand it:

A sign could also be placed at the site displaying the public notice. This was a former requirement of the RMA prior to it being amended in 2003. While it is no longer a necessity to erect a sign it is still considered good practice to establish one on a site, especially if the proposed activity is to be located in an area which will have wide spread effects or affect people that are not directly notified.

Informing the applicant that their application has been notified

As an applicant must be notified within 10 working days of receipt of the application, the applicant should be informed of the decision to notify in advance of this.

The applicant should be informed in writing that their application is going to be notified/ served. There are a number of things that should be communicated to the applicant in this letter:

If a council has pamphlets on notification then these should be included with the letter as it will help the applicant better understand the process from this point. It is good practice to advise the applicant before notification that the application will be notified, and get their approval to proceed. Any additional fees will also need to be paid.

Potential for a pre-hearing meeting

Before submissions are received, it is good practice to discuss the potential for a pre-hearing meeting and its process with the applicant and obtain their approval in principle to proceed if it is appropriate.

Check out the Ministry for Environment's pre-hearing guide: Pre-hearing meetings: A Practical Guide for Councils.

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The process for making submissions

Section 96(1) of the RMA provides an opportunity for any person to make a submission to a consent authority on an application for resource consent that has been notified/served in accordance with section 93 and 94C of the Act.

A submission can be in support of and/or object to all or any aspects of an application or proposal.

The submission must be in writing and clearly state the following (section 96(2) and Form 13 (MS Word 37KB)):

The submitter must serve a copy of the submission on the applicant, as soon as is practicable after serving the submission on the consent authority.

The closing date for making submissions must be specified in the public notice. Section 97 of the RMA prescribes that submissions will close on the 20th working day after the public notification of the application. This period may only be extended by using sections 37 and 37A.

Submission forms

Submissions should follow Form 13 (MS Word 37KB) of the Resource Management (Forms, Fees, and Procedures) Regulations 2003.

We have developed a basic template that incorporates these requirements and some good practice elements to assist the submitter to participate more effectively.

Common problems with submissions

Below are some common problems often experienced with submissions and some suggested solutions.

Problem Solution
Late submission Sections 37 and 37A of the RMA allow a council to accept late submissions. If a council does accept late submissions, it must be careful to adopt a consistent approach to ensure that applicants and submitters are not disadvantaged/advantaged in any way. The submission must however be no later than twice the maximum time period specified in the Act (e.g. 40 working days in the case of a submission period). It may be longer if the applicant agrees.

Incomplete information in the submission. For example, the submitter has not provided:

  • address for service
  • any reasons
  • any conditions or decision sought

It is very important that submitters understand the importance of fully completing their submission. This can be helped by developing clear, user-friendly submission forms and supporting information.

Where a submission is incomplete, it is good practice to contact the submitter, explain why it is thought to be incomplete and ask that they provide the missing information.

If they do not provide the information (this is particularly important if it's information relating to their reasons, decision sought and conditions) the submitter needs to understand that their submission may not be able to be fully understood, disallowed.

To rectify this situation the council officer could invite the submitter to re-submit the submission or invite them to correct it.

Submitter has not indicated if they want to be heard or not It is good practice for a council officer to phone the submitter and clarify whether or not they want to be heard. They need to understand that by not ticking the “I wish to be heard” box, they will not be notified of the date, time and place of any hearing (section 101(3)), nor will be able to participate in a hearing.
Submission has not been served on the applicant It is good practice for a council officer to phone the submitter and request that they need to serve a copy of their submission on the applicant (according to section 96(4) of the RMA). The council may choose to send copies to the applicant itself.

Receipt of submissions

The Resource Management (Forms, Fees and Procedures) Regulations 2006 confirmed that when RMA submissions are lodged electronically, they do not require a signature.

Receiving submission electronically (such as by e-mail or through a council website) can have time-saving benefits for RMA practitioners such as:

Submitters are also required to ‘serve’ a copy of their submission on the applicant.  Section 352 of the RMA specifies how a document may be ‘served’.  The Electronic Transactions Act 2002 would appear to also allow the serving of documents electronically so long as the relevant party consents to accepting them electronically.

Advising the applicant

A council has to provide the applicant with a list of all submissions received on their application (section 98 of the RMA) as soon as reasonably practicable after the close of submissions. See Example: List of submitters letter (MS Word 25KB).

Although it is a requirement of the RMA that all submitters must serve a copy of their submission on the applicant, this does not always happen.

Withdrawal of submissions

There is no specific section of the Act that deals with the withdrawal of submissions. However, if anyone wants to withdraw a submission, it is good practice to require the submitter to withdraw their submission in writing.

Where a submitter chooses to withdraw a submission, it is good practice that their legal status relating to an application must be made clear to them; i.e. that they no longer have the right of appeal. See Example: Withdrawal of right to be heard form (MS Word 25KB).

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Pre-hearing meetings

What is a pre-hearing meeting?

Section 99 of the RMA encourages councils to hold a pre-hearing meeting for the purpose of clarifying, mediating, or facilitating resolution of any matter or issue associated with an application for resource consent. However, it is not compulsory (See The Ngatiwai Trust Board v Whangarei District Council). Pre-hearing meetings aim to clarify issues and resolve disputes in what is often an adversarial process.

A council may hold a pre-hearing meeting at the request of a submitter or the applicant, or on its own initiative.

When and why should a pre-hearing meeting be held?

Pre-hearing meetings can be held at any time before a hearing, and even before an application for a resource consent is lodged. They can assist in conveying adequate information, clarifying issues, drafting conditions and personalising the parties involved so they might communicate after the meeting.

While it may not always be appropriate to hold a pre-hearing meeting (depending on the attitudes of the parties involved), they can produce more sustainable results and greater satisfaction for all involved. By being involved in making decisions, the applicant and submitters 'own' the result far more than if the decision is made by someone else.

The informal nature of pre-hearing meetings often allows parties to be more creative in finding mutually acceptable solutions. This is especially important where the council, applicant and interested parties need an ongoing relationship. Even when a hearing is subsequently required, pre-hearing meetings can help in clarifying the issues enabling the hearing to be more focused and less adversarial.

There is a need to be realistic about expectations and outcomes associated with pre-hearing meetings. They may not always resolve issues and can potentially extend the process where parties are not willing to resolve issues.

Pre-hearing meetings work best when they are run by an experienced facilitator who is independent of the process. This brings a sense of objectiveness to the proceedings and should give all the parties the confidence to have their concerns or issues heard.

Can the eventual decision maker on the application be present at the pre-hearing meeting?

A member, delegate or officer of a consent authority who is able to make the decision of the consent authority on the application may be present and participate at the pre-hearing meeting provided:

How do I coordinate a pre-hearing meeting?

The Ministry for the Environment has published a useful booklet on pre-hearing meetings: Pre-hearing meetings: A Practical Guide for Councils. This provides guidance on preparing for the meeting and running it.

The following list provides some general good practice tips for inviting parties to attend a pre-hearing meeting, but for more detailed information on pre-hearing meetings, refer to the Ministry's guide:

Record of outcomes from a pre-hearing meeting

It is important that an accurate record of the pre-hearing meeting is prepared and filed with the application. A copy of this record should be sent to everyone that attended the meeting, and prior to a hearing being held (if required). The record can be sent out with the officer’s report before the hearing.

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Hearings

Statutory requirements for hearings

It is not always necessary that a notified/served application proceed through a formal hearing process. A hearing is only required if:

When should a hearing be held?

A hearing must commence within 25 working days of the date submissions closed, unless the time has been extended under sections 37 and 37A of the RMA.

Informing the parties that a hearing is to be held

All parties must be given notice of the commencement date and time, and the place of the hearing, a minimum of 10 working days prior to the commencement of the hearing. If your council has developed pamphlets or guidance for people attending hearings, then you should include these with the letter advising people of the hearing.

Example: Notice of hearing (MS Word 26KB)

The officer's report must be circulated to all parties at least 5 days (Section 42A) prior to the hearing (refer to Writing the report on a notified application)

Hearings protocol

The way in which the hearing is to be run should be explained by the Chairperson at the beginning of the hearing. Matters that might be referred to at the beginning of a hearing include:

The normal order of the procedure of a hearing is as follows:

  1. Introduction by the Chairperson
  2. Applicant presents the application and supporting evidence
  3. Submitters in support speak to their submissions
  4. Submitters in opposition speak to their submissions
  5. Council officer summarises their report and makes any comments regarding information provided at the hearing
  6. Applicant responds
  7. Hearing is closed or adjourned for a decision to be made

In most cases it is appropriate for the applicant to present their case prior to the council staff reporting on the application. This will avoid the possibility of staff misinterpreting the applicant's case, especially if changes have occurred in the application as a result of pre-hearing consultation, council officer recommendations or effects mitigation. Sometimes it may be of an advantage if the council officer provides a summary of the proposal and their recommendations before the applicant. This is so that the committee or commissioner/s (the decision-makers) are aware of the relevant plan provisions and provisions of the Act (i.e. relevant parts of sections 104, 104A-D and 105) that they are required to consider when deciding upon the application. This is most appropriate where an applicant is not represented by legal counsel, or a consultant familiar with the RMA. It may be appropriate to have more than one council officer present if internal specialist advisors have provided key input to the assessment e.g. subdivision engineer.

Alternatively these may be contracted consultants acting on behalf of the Council. If they are to present written reports then these must also be circulated prior to the hearing in conjunction with the section 42A Officer's Report.

It is good practice for the hearings committee or commissioner/s (the decision-maker/s) to undertake a site visit prior to the hearing, or at least, prior to the decision being made. If a site is visit is undertaken prior to the hearing, the Committee/Commissioners should avoid contact with the applicant, submitters or Council Officers before the hearing.

The Ministry for the Environment's publication Keeping it Fair: A Guide to the Conduct of Hearings Under the RMA provides a comprehensive guide to conducting hearings.

Joint hearings

Some proposals may require resource consents from more than one consent authority, such as a district council and regional council. In such cases, section 102(1) of the RMA promotes a joint hearing. Where a joint hearing is to be held, the regional council for the area concerned will take the lead role in setting up the hearing, and establishing the procedure to be followed. Even so, the responsibilities involved in the process need to be decided between the consent authorities at an early stage of the process. The most effective way to achieve this is for the officers from each of the authorities to meet and allocate the responsibilities. The decisions made at this meeting need to be well documented, and a copy of this record kept by each authority.

Joint hearings help to:

Who has speaking rights at a hearing?

Only the following people have the right to speak at a hearing

Any submitter who did not request to be heard and anyone simply present to view proceedings at the hearing does not have the right to speak.

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Councillors and commissioners

Most consent authorities tend to appoint councillors who have delegated authority to make decisions on notified resource consent applications. The councillors with this delegated authority should have been extensively trained in the consent authority's functions, responsibilities and powers under the Act.

In those cases where there may be a conflict of interest for the council (e.g. where the council is both the applicant and the consent authority), independent commissioners should hear the application.

Commissioners should be selected for their expertise on the relevant environmental issues, their knowledge of the consent authorities' functions under the Act, and their knowledge of the hearing process.

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Writing the report on a notified or limited notified application

Purpose of the hearings/officers report

The hearings/officers report serves to advise the decision-maker(s) (hearings committee or commissioner(s), or if no hearing was held, person with delegated authority) on the matters to be considered. This ensures that an informed judgement on the application can be made.

What to include in the report

The report needs to assess the application and the supporting Assessment of Environmental Effects (AEE), and include an analysis of the matters required by the RMA and the plan(s). It should summarise the submissions received, identify any written approvals supplied and the outcomes of any pre-hearing meeting. It should also include a recommendation as to whether the application should be granted or declined, and if granted, propose any conditions, including monitoring.

The scope and depth of a report should reflect the scale and significance of the proposed activity.

Where a comprehensive AEE is provided with an application, has been checked and approved by staff and is not disputed by submitters, this can be referenced in the officer's report to avoid duplication.

Councils may have a set format for writing reports on notified consent applications. However, you could use the example notified report for hearing (MS Word 101KB) as a basic template to check your format against, or to adapt particular elements of it.

It is not good practice to say in your report that the applicant can address certain matters/issues at the hearing. This disadvantages submitters who have not had the opportunity to consider new information and should be addressed by way of a request for further information prior to completing the report.

Refer to Auditing Assessment of Environmental Effects A Good Practice Guide for further guidance on writing a report.

It is good practice (and courtesy) to call the applicant and discuss the report's contents with them before finalising it. Particularly if you are recommending decline as the applicant may wish to make changes to the application prior to the hearing or the report being released.

When should the report be sent out and who should it be sent to?

The report should be sent to the applicant, any submitters who wish to be heard and the decision-maker(s), whether it be a hearing committee, commissioner(s), or a council staff member with delegated authority.

Section 42A(3) of the RMA requires that the report arrives 5 working days before the hearing commences with the parties it is sent to. This requirement may only be waived if the consent authority is satisfied that there is no material injustice to any person who should have been sent a copy of the report under Section 42A(3).

Where an application is made for a significant project and it is to be heard it is good practice to circulate the council officer's report considerably earlier than 5 days before the hearing. This allows all parties to consider the recommendations and assessments made, address them and potentially commission further evidence where required. This could be done at the same time as the notice of hearing.

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Forms and checklists

Example: Limited notification letter (MS Word 26KB)

Example: List of submitters letter (MS Word 25KB)

Example: Notice of hearing (MS Word 26KB)

Example: Notified report for hearing (MS Word 101KB)

Example: Public notice (MS Word 28KB)

Example: Public notification letter (MS Word 26KB)

Example: Receipt of submission letter (MS Word 26KB)

Example: Submission form (MS Word 79KB)

Example: Withdrawal of right to be heard form (MS Word 25KB)

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Case law

The following cases contain discussion on Notified Application matters:

Nga Puawaitanga (Meremere) Ltd v Waikato District Council (1998) 4 ELRNZ 480 [1998] NZRMA 529 (HC) - the consent authority has the discretion whether to accept any recommendation of a report compiled under Section 42A of the RMA.

Projet Adventures Ltd v Queenstown-Lakes District Council (1993) 2 NZRMA 353 (PT) - this decision provides discussion about the importance of accuracy in the information provided in a public notice.

Marsh v Wanganui District Council EnvC C212/2000 - the Court held that it did not have the jurisdiction to consider certain activities within the resource consent application as they were not adequately described in the public notice.

Queenspark Residents Association Inc v Christchurch City Council EnvC C144/2001 - it was noted in this decision that the purpose of the public notice is to alert members of the public to the fact that they might be affected and to direct them to the appropriate points of contact to obtain more specific information.

The Ngatiwai Trust Board v Whangarei District Council A80/95 (PT) - Section 99 Pre-hearing meetings is a discretionary section and there is no compulsion that a Council must undertake pre-hearing meetings.

Fleetwing Farms Ltd v Marlborough District Council CA255/96 - joint hearings (sections 102 and 103 of the Act) are confined to relate to a single applicant. The RMA does not allow for a comparative assessment of competing uses for the same resource.

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Relevant publications

Roles and Responsibilities of Local Government Politicians under the RMA
Author: A P Lewis
Date: 1999
This document also sets out the roles and responsibilities of Councillors during the resource consent and hearing process.

Roles and Responsibilities under the Resource Management Act 1991 - A Guide for Local Government Councillors
Author: New Zealand Planning Institute
Date: 2002
This resource kit provides helpful hints of all the processes under the RMA and how to conduct the processing of resource consents and hearings.

Keeping it fair: a guide to the conduct of hearings under the Resource Management Act 1991
Published by Ministry for the Environment - July 2001
Outlines various issues associated with hearings and discusses order of proceedings, speaking rights and techniques for asking questions and listening to answers.

Getting in On the Act
Published by Ministry for the Environment - June 2006
A short, simple guide on how the Resource Management Act works and how it might affect users.

Taking A Closer Look at Public Notices (PDF 208 KB)
Published by New Zealand Planning Institute - January 2001
Looks at the user-friendliness of public notices and makes suggestions for improvements to current practice.

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.

Pre-Hearing Meetings: A Practical Guide for Councils
Published by Ministry for the Environment - March 1999
A guide for council staff developing procedures for pre-hearing meetings, which are a useful tool to clarify issues and resolve disputes in relation to resource consent applications.

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Relevant websites

The following are helpful websites that contain information relevant to this guidance note:

The Auckland Regional Council website has a webpage containing a list of all the currently notified applications for resource consents. Go to Auckland Regional Council's Notified applications for resource consent.

The Tasman District Council website has a webpage containing a list and details of the currently notified applications for resource consents. Go to Tasman District Council's Current Resource Consent Applications.

Greater Wellington has information outlining the difference between a notified and non-notified resource consent application. Go to Greater Wellington's Consents process.

The Hastings District Council website contains information on the difference between notified and non-notified resource consent applications, the costs of each and annual user charges. Go to Hastings District Council's Notified and non-notified resource consents.

The Auckland City Council website has a webpage containing copies of public notices for notified resource consent applications. Go to Auckland City Council's Public notices. It also contains information on how to make a submission and provides a submission form to download. Go to Auckland City Council's Notified and non-notified consents.

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Current challenges in practice

Making the wording of the public notice correct and adequate

Where applications are complex and involve a number of different applications for resource consent, or where applications do not contain a clear description of what is actually proposed, it can be difficult to clearly state the exact nature of the application in the public notice. It is imperative though that the public notice’s description is as clear and accurate as possible so as not to impede potential submitters' judgements as to whether or not they may have concerns about the project. One way of avoiding this situation is circulating a draft notice to the applicant and getting their agreement that the wording is correct. The Council should keep a file note recognising that the applicant has agreed to the wording.

Utilising pre-hearing meetings as a resolution tool

Pre-hearing meetings are still not commonly used or promoted as a way of assisting the resolution of issues surrounding a potentially contentious application. They are not actively promoted and many applicants do not realise that there is potential for such meetings to be set up. One reason for this is that it could potentially extend the time taken to process an application while the direct hearing process offers a quicker route with a definite outcome. More active promotion should be undertaken in guiding applicants to a pre-hearing meeting through both the education of council staff and applicants on this process and the benefits of it. A pre-hearing meeting can be arranged and held within the 25 working days available prior to the hearing, therefore not extending the time taken to reach a final decision.

Identification of Conflict of Interest

It can be difficult to ensure that people appointed to hearing committees or as Commissioners do not have a conflict of interest that should exclude them from making a decision on an application. Sometimes this can not be avoided due to circumstances beyond everyone’s control. To safe guard against this occurring it is wise to double check with Councillors that they have had no contact with the applicant or submitters during the process, or, in the case of independent commissioners, that they have not previously advised any of the parties. A cautious approach is recommended on these matters to avoid embarrassment at the time of the hearing.

Speaking rights at hearings

Often at hearings submitters who have not said they wish to be heard, non-affected parties or simply just people present at the hearing want to speak. The best way to avoid this problem is to have the Chair of the Committee or Commissioners to ask all those parties present at the hearing who wish to speak to identify themselves and say in what capacity they wish to speak. If anyone who is not recognised as having speaking rights does identify that they wish to be heard then the Chair/Commissioner can acknowledge and welcome their attendance but tell them they will not be able to speak.