Making a decision on the application

Abstract

Sections 104 to 116 of the Resource Management Act 1991 (RMA) regulate the determination and issuing of resource consent decisions. This guidance note provides information on how to make and notify a decision and outlines objection and appeal procedures.

Guidance note

Section 104 - matters to be considered
Sections 104A-D - decisions on applications
Sections 105 and 107 - decisions on discharge and coastal permits
Section 106 - decisions on subdivisions
Section 107A, 107B and 107C - customary activity
What to include in a decision
Decisions on Restricted Coastal Activities (RCA)
Quality assurance
Notification of the decision
Objections to decisions
Appeals to the Environment Court on decisions

Section 104 - matters to be considered

Section 104 of the RMA sets out the principal matters, subject to Part 2, which a council must have regard to (and other matters it must disregard) when considering an application for resource consent and any submissions received.

Matters to be considered include:

any actual and potential effects on the environment
any relevant provisions of a national environmental standard, other regulations, a national policy statement, a New Zealand coastal policy statement
any relevant provisions of a operative or proposed regional policy statement or any proposed or operative plan
any other matter the council considers relevant and reasonably necessary to determine the application
the value of the investment of the existing consent holder when considering an application affected by s124 (exercise of resource consent while applying for new consent).

A council may disregard an adverse effect of an activity on the environment if the plan or a national environmental standard permits an activity with that effect (s104(2)).

Section 104(3) sets out what the council must not do when considering an application:

have regard to trade competition or the effects of trade competition
have regard to any effect on a person who has given written approval to the application, unless the approval is withdrawn in writing before the hearing or determination of the application
grant a consent contrary to the provisions of any of the following:

s107 (restriction on grant of certain discharge permits)
s107A (restrictions on grant of resource consents)
s017E (decision on application to undertake non-aquaculture activity in an aquaculture management area)
s217 (effect of water conservation order)
an Order in Council in force under s152
any regulations
a Gazette notice referred to in s26(1), (2) and (5) of the Foreshore and Seabed Act 2004

grant a consent if the application should have been notified and was not.

Also, councils must not grant consent for a prohibited activity or a subdivision consent where the circumstances set out in s106 can not be reconciled. Section 106 - decisions on subdivisions is explained further below.

Councils may decline an application on the grounds it has inadequate information to determine the application (s104(6)). When making an assessment on the adequacy of the information, a council must have regard to whether any further information or report(s) requested were provided.

Case law has determined that subject to Part 2 of the RMA, s104(1) does not elevate any of the matters in s104(1) to a primary status. However matters can be given weight as the council sees fit in the circumstances.

Sections 104A-D - decisions on applications

Sections 104A to 104D set out the circumstances in which a council may/must grant or refuse consent, with reference to the type of activity for which consent is sought. Under each of these sections the manner of any grant or refusal is:

Section 104A - Controlled activities
A council must grant this type of application unless it has insufficient information to determine that the activity is controlled. The council may impose suitable conditions in relation to those matters over which control is reserved as set out in its plan or proposed plan, or that reserved in any national environmental standards or other regulations.
Section 104B - Discretionary and non-complying activities
A council may grant or refuse this type of application; and may impose conditions if it chooses to grant it.
Section 104C - Restricted discretionary activities
A council may grant or refuse this type of application, but must only consider the activity based on the matters to which it has restricted the exercise of its discretion under its plan or proposed plan) and in national environmental standards or other regulations. If a council chooses to grant consent, then conditions can only be imposed in relation to those matters over which discretion has been restricted in the plan or proposed plan, national environmental standards or regulations.
Section 104D - Particular restrictions for non-complying activities
When dealing with non-complying activities, before granting an application a council must be satisfied that either the adverse effects of the activity on the environment will be minor (s104D(1)(a)), or the proposed activity will not be contrary to the objectives and policies of a proposed plan and/or plan (s104D(1)(b)). This consideration is commonly known as the 'threshold test ' or the 'gateway test '. If either of the limbs of the test can be passed, then the application is eligible for approval, but the proposed activity must still be considered under s104 (see Dye v Auckland Regional Council [2001] NZRMA 513 (CA)). There is no primacy given to either of the two limbs, so if one limb can be passed then the 'test ' can be considered to be passed (see Hopper Nominees Ltd v Rodney District Council [1996] NZRMA 179).

Sections 105 and 107 - decisions on discharge and coastal permits

Section 105 requires councils to have regard to the following matters when considering a discharge or coastal permit application which will contravene s15 or s15B of the RMA:

the nature of the discharge and the sensitivity of the receiving environment to adverse effects; and
the applicant's reasons for the proposed choice; and
any possible alternative methods of discharge, including discharge into any other receiving environment; and
if the application is for a resource consent for a reclamation, the council must also consider whether an esplanade reserve or strip is appropriate.

These matters are in addition to the matters listed in s104(1) which a council must take into consideration before making a determination.

Section 107 states that councils shall not grant a discharge or coastal permit allowing the discharge of a contaminant or water if it is likely to give rise to all or any of the following effects in the receiving waters:

the production of any conspicuous oil or grease films, scums or foams, or floatable or suspended materials
any conspicuous change in the colour or visual clarity
any emission of objectionable odour
the rendering of fresh water unsuitable for consumption by farm animals
any significant adverse effects on aquatic life.

Where a proposal results in the above effects, consent may be granted if a council is satisfied that the proposal is consistent with the purposes of the RMA and:

exceptional circumstances exist, or
the discharge will be temporary, or
the discharge associated with necessary maintenance work

Conditions can be imposed which require the permit holder to undertake work in stages throughout the term of the permit.

Section 106 - decisions on subdivisions

Section 106 requires councils to consider the following matters in deciding on a subdivision consent application:

the land or any structure on the land likely to be subject to material damage by erosion, falling debris, subsidence, slippage, or inundation from any source
any subsequent use that is likely to accelerate, worsen, or result in material damage to land or structures by erosion, falling debris, subsidence, slippage, or inundation from any source
whether sufficient provision has been made for legal and physical access to each lot created by the subdivision.

Following consideration of these matters, a council can either refuse or grant the application subject to conditions. Conditions can only be imposed in order to remedy, avoid or mitigate effects from the above list and must be in accordance with s108.

Sections 107A, 107B and 107C - customary activity

A council must not grant an application for a resource consent to do something that will, or is likely to, have a significant adverse effect on a recognised customary activity unless written approval is given for the proposed activity by the holder of the relevant customary rights order (s107C). Section 107A(1) advises on how to determine whether a proposed activity will or is likely to have significant adverse effects on a recognised customary activity.

Section107A provides that the grant of resource consent for infrastructure works and related operations cannot be refused if lawfully established before commencement of Part 3 of the Foreshore and Seabed Act 2004; and any significant adverse effect of the proposed activity on customary activity will be similar to that which existed before the application (s107B). Maintenance works of that infrastructure are also provided for so long as effects on the customary activity are temporary in nature.

What to include in a decision

Section 113 requirements

Section 113 of the RMA sets out certain matters that must be covered in writing decisions on resource consent applications.

It is important to note that s113 sets out what content is required in decisions and makes a distinction between notified and non-notified applications. Section 113 does not specify a particular structure or order for presenting the content in the decision.

For non-notified applications, every decision must be in writing and state the reasons for the decision (s 113(4)).

For notified applications (publicly and limited), every decision must be in writing and state:

(1)

(a) the reasons for the decision
(aa) the relevant statutory provisions that were considered by the consent authority
(ab) any relevant provisions of the following that were considered by the consent authority:

(i) a national environmental standard:
(ia) a national policy statement:
(ii) a New Zealand coastal policy statement:
(iii) a regional policy statement:
(iv) a proposed regional policy statement:
(v) a plan:
(vi) a proposed plan; and

(ac) the principal issues that were in contention; and
(ad) a summary of the evidence heard; and
(ae) the main findings on the principal issues that were in contention
(b) in a case where a resource consent is granted for a shorter duration than specified in the application, the reasons for deciding on the shorter duration.

(2) Without limiting subsection (1), in a case where a resource consent is granted which, when exercised, is likely to allow any of the effects described in section 107(1)(c) to (g), the consent authority shall include in its decision the reasons for granting the consent.

A checklist is a useful tool to ensure these matters are included and considered when drafting decisions. Such a checklist should be tailored to the different requirements in s113 for notified and non-notified decisions.

Section 113(3) states that decisions on notified applications may cross-reference to all or part of:

the assessment of environmental effects (AEE) provided by the applicant:
any report prepared under ss41C, 42A or 92; or
adopt all or part of the AEE or report and cross-refer to the material accordingly.

The ability to adopt and/or cross-reference material that the reporting officer agrees with can avoid duplication and speed up the reporting process.

General principles of good written decisions

Notwithstanding the requirements of s113, there are general principles of written decisions that should underlie the drafting of every written decision.

These principles have been developed from the perspective of the end user (such as the applicant, submitters, or council staff not involved in processing the application), who may not always have an intimate knowledge of the RMA and its processes.

The principles are set out below and are presented in no particular order of importance. Further explanation is also provided at the following link - General principles that apply to all written decisions

Structure and appearance

Principle 1: Ensure a professional appearance.
Principle 2: Provide the decision at the start.
Principle 3: Use a logical structure that supports a fluent argument.

Content

Principle 4: The decision length and level of detail should reflect the complexity of application.
Principle 5: The written decision should endure over time and involvement (ie, people other than those who were involved in the application should be able to read and understand it).
Principle 6: Be mindful of scope.
Principle 7: Provide reasons for the decision.
Principle 8: Include application details.

Expression

Principle 9: Take ownership of the decision.
Principle 10: Use plain English.
Principle 11: Ensure consistency of expression.
Principle 12: Keep the decision effects-focused.
Principle 13: Provide an overall evaluation leading directly to the decision whether to grant or refuse consent.

There are also some principles which relate specifically to notified decisions. These principles reflect the matters addressed in s113(1) to (3) of the RMA, as outlined in the What to include in a decision section above.

Decision templates

The example decision templates below fulfil the requirements of s113. They also address the general principles of a good written decision set out above and the required content for decisions on notified and non-notified applications. They can be adapted for use by councils.

Examples of good, written decisions

The following are examples of actual decisions on a range of relatively simple and complex notified applications by council hearing panels, sole independent commissioners, or others with delegated authority, that accord with the majority of the principles set out above.

As non-notified decisions are now only required to be in writing and state the reasons for the decision (s113(4)), no examples are provided.

Notified regional council examples:

Notified city/district council examples:

Notified territorial authority example:

Example (joint committee): Northland Regional Council & Far North District Council - Maritime Services Building (MS Word 74 KB)

Limited notified regional council examples:

Example: Environment Waikato - Willoughby Street landfill (hearings panel) (PDF 170KB)
Note: part limited notified, part fully notified group of applications
Example: Greater Wellington - air discharge (PDF 1.2MB)
Note: limited notified application for which no submissions received, made by council staff under delegated authority

Limited notified territorial authority example:

Example: Wellington City Council - Plunket Street (sole independent commissioner) (PDF 1.0 MB)

Decisions on Restricted Coastal Activities (RCA)

Sections 117 and 119A of the RMA set out the special procedures under which an application for a RCA must be made to a regional council, unless the application is made to the Environmental Protection Authority (EPA) under s145.

In the case of a RCA application to the regional council, the following procedures must be followed:

the regional council must promptly provide a copy of the application to the Minister of Conservation and the relevant territorial authority
the regional council must publicly notify the application
the application must be considered and determined by one or more employees or hearings commissioners, including one person nominated by the Minister of Conservation. Note that s100A does not apply in relation to RCA 's - independent commissioners can not be requested by the applicant and/or submitter to hear and decide on the application.
the regional council must serve a notice of its decision on the Minister of Conservation (who may appeal the decision in addition to the applicant or any submitter).

Quality assurance

Before resource consent is signed off by a council and issued, it is good practice to carry out checks to ensure that each step of the consent process has been completed correctly.

It is helpful to have a list of the quality assurance matters that should be checked off.

See the Issuing a resource consent guidance note for guidance on quality assurance at the stage of issuing a resource consent, and for an example of a quality assurance checklist.

Notification of the decision

When do I notify the decision?

Section 114 of the RMA requires a council to serve a copy of its decision on the applicant, every person who made a submission, and any other persons or authorities the council considers to be appropriate. This notice must also contain a statement of the time in which an appeal against a decision may be lodged. As outlined under the s113 requirements, the decision must be in writing.

Section 115 of the RMA outlines the time limits for notification of a decision. These are:

15 working days after the end of the hearing. The clock starts at the end of the public hearing, when the chairperson announces that the hearing is closed. In the case of adjournment, the clock does not start until the hearing is actually closed, but the hearing must be concluded no later than 10 working days after the applicant's right of reply has been exercised (s103A(2)).
If the application was non-notified and no hearing was held, then notification of the decision must occur no later than 20 working days after the date the application was first lodged (excluding any period when the processing clock was stopped for further information).
If the application was notified but no hearing was held, notification of the decision must occur no later than 20 working days after the closing date of submissions (excluding any period when the processing clock was stopped for further information).
Where it is decided under s87I that a request for direct referral is to be determined by the council and a hearing is not held, notification of the decision must occur no later than 10 working days after the date on which the council knows s87I applies.

Decisions can be served by post, by hand, by email, by leaving it at a document exchange, or faxed. In each instance (apart from by hand), details are specified as being an address for service. Where a decision is sent by post it is normally deemed to have been received by the person at the time at which the letter would have been delivered in the ordinary course of the post (s352).

If the application drew a large number of submissions and the decision is somewhat lengthy due to the nature of the application, s114(3) allows a summary of the decision to be served. Should this option be chosen by the council, the council must make a full copy of the decision available for viewing (physically or by electronic means) at all of its council offices and public libraries within the area of jurisdiction and the parties must be made aware of these locations for viewing. The council should also make parties aware that they can request a full copy of the decision and that it must be provided to them within three working days of a request being made.

How do I notify the applicant of the decision?

The decision letter must include a copy of the decision including any consent conditions imposed. Refer to Resource consent conditions guidance note.

It must also inform the applicant of the right of appeal (s120) and/or objection (s357) and of the 15 working day time frame within which to lodge an appeal/objection should the decision not be satisfactory.

With non-notified resource consents, the decision letter should advise that the resource consent commences immediately unless an objection is lodged. If an objection is made under s357A, the resource consent can only commence once the objection and any appeal under s358, has been decided on, or withdrawn.

With notified resource consents, the decision letter should advise that until the period for lodging appeals is up (15 working days from the date the applicant received notice of the decision), the consent holder must not commence the consent. The applicant can not commence the consent until the time for lodging appeals expires and no appeals have been lodged, or until the Environment Court determines that the appeals be withdrawn.

If the consent is granted, the decision letter should also advise the applicant of the consent expiry date. In accordance with s125, a resource consent lapses on the date specified in the consent or five years after the date of commencement of the consent, unless the consent has been given effect to or unless the applicant applies to the council to extend the consent period.

In addition to notifying the applicant of the decision, some councils also include details of the charges the applicant can expect to incur. Refer to Administering resource consent charges and Setting charges for processing and monitoring consents under the RMA. This is best attached as an invoice rather than detailed in the letter. At the least, the letter should indicate to the applicant that an invoice will be sent separately. If the consent application was approved, the invoice may also need to include any charges associated with monitoring the consent.

How do I notify the submitters of the decision?

Submitters are notified of the decision in the same way as applicants - in writing, with a copy of the decision and any consent conditions attached.

As with the letter to the applicant, submitters need to be informed of their appeal rights under s120(1) should they be dissatisfied with the decision. Submitters also need to know that they have 15 working days from the date they received notification of the decision, to lodge their appeal with the Environment Court.

Example: Notice of decision letter to submitters - consent granted or refused (Word document 31KB)

Objections to decisions

Under s357A, an applicant has a right of objection to the council in relation to a resource consent decision:

if the application was not notified; or
if the application was notified or served and no submissions were received or were withdrawn.

Section 357B also provides for a right of objection to a request by council to pay additional charges or costs.

An objection must be made in writing and must be lodged with the council within 15 working days of receipt of the decision and must set out the reasons for the objection (s357C(1)-(2)).

In the case of an objection made under s357A (objections to decisions or requirements), the council must consider the objection within 20 working days and give at least five working days ' written notice to the objector of the date, time, and place for the hearing of the objection. For objections made under s357B (objections to costs and charges) the council must consider the objection "as soon as reasonably practicable" and give written notice to the objectors, as for a s357A objection.

The council may choose to hear the objection; or where officers have delegation to do so, deal with it at officer level if agreement can be reached between the objector and the council.

A decision on an objection is to be made in writing and then served on the applicant within 15 working days of making the decision. An applicant dissatisfied with the council decision on the objection (under s357A(1)(a), (d), (f), or (g)), may appeal to the Environment Court under s358 within 15 working days of the receipt of the objection decision. This avenue is not open if an appeal in respect of the same matter has been lodged under s120.

Appeals to the Environment Court on decisions

An applicant, consent holder or submitter can appeal a council resource consent decision to the Environment Court under s120(1). The Minister of Conservation can also appeal a decision on a restricted coastal activity made by the regional council. For applicants, this appeal right is in addition to the objection rights to the council provided for in ss357A, 357C and 357D.

The appeal must be made in the prescribed form (Form 34) and must state the reasons for the appeal, the relief sought and state any matters required by the regulations. The appeal must be received by the Environment Court within 15 working days of receiving the Council's decision. A copy of the notice of appeal must be served on the council, any submitter and applicant (as appropriate) except for the appellant within five working days of the notice being lodged with the Court.

The Environment Court may order a party to an appeal to give security for costs prior to the proceedings. Where an appeal is not successful, the appellant may be awarded costs against them to pay for the costs of the defendant having to represent their case to the Court. Costs can be awarded by the Environment Court regardless of whether security of costs was required prior to the commencement of proceedings (s285).

See the Ministry's booklet The Environment Court: Awarding and Securing Costs for more information.

Forms and checklists

Example: Checklist for issuing a resource consent (MS Word, 31 KB)

Example: Notice of notified consent decision letter - consent refused (MS Word, 34 KB)

Example: Notice of notified consent decision letter - consent granted (MS Word, 29 KB)

Example: Notice of non-notified decision letter - consent granted (MS Word, 35 KB)

Example: Notice of non-notified decision letter - consent refused (MS Word, 28 KB)

Example: Notice of decision letter to submitters - consent granted or refused (MS Word, 31 KB)

Case law

Rotokawa Joint Venture Ltd v Waikato RC A041/07 - it is not appropriate to impose costly conditions that could prove to be of poor cost-effectiveness if the adverse effects were to prove to be not so serious as to justify high cost measures.

Sea-Tow Ltd v Auckland RC A066/06 - sets out the principles that guide the adoption of the precautionary approach in deciding resource consent applications.

Royal Forest & Bird Protection Soc of NZ Inc v Buller DC [2006] NZRMA 193 (HC) - a flexible approach to risk assessment is appropriate. Regard must be had to the particular context and the seriousness of the potential effects and impacts of a proposed activity, in deciding whether a matter is proved on the balance of probabilities.

Keystone Ridge Limited v Auckland City Council AP24/01 - matters to be considered when addressing weighting between the provisions of different plans.

Dye v Auckland Regional Council [2001] NZRMA 513 (CA) - if a non-complying activity meets either limb of the threshold test, it still has to be considered as suitable for approval under s104B of the Act (then s104(1)).

Stokes v Christchurch City Council [1999] NZRMA 409 (EC) - confirmation that the proper test is whether the adverse effects of a proposed activity when remedied or mitigated are more than minor when taken as a whole.

Baker Boys Limited v Christchurch City Council (1998) 4 ELRNZ 297; [1998] NZRMA 433 (EC) - this decision provides guidance as to the correct procedure when considering a non-complying activity. That is: firstly to identify the relevant s104 matters for consideration; secondly to consider whether the jurisdictional hurdles in s104D(1) are met, having had regard to the matters under s104; then as part of the overall discretion in s104B, to weigh the relevant matters under s104.

Hopper Nominees Limited v Rodney District Council (1995) 2 ELRNZ 73; [1996] NZRMA 179 (HC) - there is no primacy given to either limb of the threshold test.

Relevant publications

Your Guide to the Resource Management Act: An Essential Reference for People Affected by or Interested in the RMA
Published by Ministry for the Environment - August 2006
This guide for the public presents a simple explanation of the RMA legislation, the processes it has established, and how people can use it to pursue their interests.

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.

Relevant website

The following website contains information relevant to this guidance note:

The Environmental Defence Society site has a web page on lodging a resource consent appeal. This web page contains information for the applicant on forms of appeal, the content of appeal, and lodgements and service of the appeal. It also provides examples of submissions on resource consent applications. Refer to Lodging a resource consent appeal.

Related guidance notes

Administering resource consent charges

Conditions of a resource consent

Issuing a resource consent

Setting charges for processing and monitoring consents under the RMA

Use of commissioners

Current challenges in practice

The cases listed in the case law section contain discussion on decision-making matters.

This guidance note was updated in January 2010 by Jerome Wyeth of Hill Young Cooper Ltd, Greg Lee of Beca and Vicki Barker of MfE.