Has the Resource Management Act 1991 created a more efficient process and reduced confusion in obtaining a resource consent? Victoria Chisnall of Gascoigne Wicks looks at this question in light of a recent Court of Appeal decision.
In 1991 the passing of the Resource Management Act created an expectation that seeking a resource consent would be both expedited and simplified. In particular, removing the need for public notification in certain situations was applauded by most and was thought to ensure a more efficient consent process.
Almost ten years on, it has become apparent that the Act and its transitional provisions have not achieved that. In fact it could be argued that it has had the very opposite effect.
A clear example of the confusion created by the Act can be found with applications that do not require notification. Section 94 has a deceptively simple statement that a subdivision consent "need not be notified in accordance with s. 93 if the subdivision is a controlled activity." A controlled activity is one that does require resource consent, but the consent is subject only to matters over which the consent authority retains control, eg height. At first sight that seems straightforward, but there is an important rider. The consent authority may still require notification under "special circumstances".
The issue of special circumstances was considered in both the High Court and the Court of Appeal in Murray v Whakatane District Council [1997] NZRMA 433 and later Waiotahi Contractors Ltd v Murray (29 March 1999) CA 219/97. In this case Waiotahi Contractors Limited applied to the Whakatane District Council for subdivision consent. The application was granted on a non-notified basis, with no opportunity being given to nearby residents to be heard in opposition. The nearby residents accordingly issued judicial review proceedings against the Council on the grounds that their decision not to notify, and their decision to grant subdivision consent, was unlawful.
On appeal the Court decided that special circumstances did exist. It placed considerable emphasis on the fact that the transitional provisions of the RMA still applied (and continue to apply until a proposed plan becomes operative). Therefore a consent authority can still decline consent to a subdivision, even if it is a controlled activity. It cannot grant a subdivision consent if it thinks that the land is unsuitable or the subdivision would not be in the public interest.
In the Murray case, the Court of Appeal concluded that it would be extremely rare for a Council to reach the decision that a public interest argument could not succeed. Therefore if an application raises public interest issues, notification must occur, in order to conform to the RMAs' emphasis on opportunities for public participation.
One of the questions that has arisen is whether the fact that the Proposed Plan has passed through all the processes (including appeals) allows a consent authority to conclude that public interest arguments no longer exist, and so the application need not be notified. Neither Court in the Murray case provided a definitive answer to this question for all circumstances.
Section 19 of the Act answers the question for activities that do not require resource consent. Once a new rule allowing activities without resource consent has been notified, as long as the time for submissions on the rule has passed, and no submissions (or appeals) remain outstanding, the activity is permitted, even if the plan is not yet operative. However, that section does not apply to activities which do require a resource consent (i.e. controlled activities).
It is arguable, though, that once the Proposed Plan has passed through the appeals process, less concern needs be given to the public interest arguments because it can be said that the process has settled these aspects. However, given the uncertainty in this area, it would be dangerous to assume on every occasion that the transitional provisions no longer apply and that notification is not necessary. There are often delays of years in disposing of all appeals to a Plan and public interest aspects can change or develop in that time.
In conclusion, the RMA can hardly be categorised as having either expedited or simplified the process for deciding about notification during the transitional period. Given the uncertainty created by the transitional provisions of the Act, it is essential that subdividers still consider seriously the likelihood of public notification at the outset of a development.
Copyright The Lawlink Group Ltd 2000
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
Victoria Chisnall is a staff solicitor with the Blenheim Lawlink firm of Gascoigne Wicks. Victoria practises in litigation, local government and resource management.
Web site: Gascoigne Wicks
Email: gwvchisn@gascwick.co.nz
December 2000
In 1991 the passing of the Resource Management Act created an expectation that seeking a resource consent would be both expedited and simplified. In particular, removing the need for public notification in certain situations was applauded by most and was thought to ensure a more efficient consent process.
Almost ten years on, it has become apparent that the Act and its transitional provisions have not achieved that. In fact it could be argued that it has had the very opposite effect.
A clear example of the confusion created by the Act can be found with applications that do not require notification. Section 94 has a deceptively simple statement that a subdivision consent "need not be notified in accordance with s. 93 if the subdivision is a controlled activity." A controlled activity is one that does require resource consent, but the consent is subject only to matters over which the consent authority retains control, eg height. At first sight that seems straightforward, but there is an important rider. The consent authority may still require notification under "special circumstances".
The issue of special circumstances was considered in both the High Court and the Court of Appeal in Murray v Whakatane District Council [1997] NZRMA 433 and later Waiotahi Contractors Ltd v Murray (29 March 1999) CA 219/97. In this case Waiotahi Contractors Limited applied to the Whakatane District Council for subdivision consent. The application was granted on a non-notified basis, with no opportunity being given to nearby residents to be heard in opposition. The nearby residents accordingly issued judicial review proceedings against the Council on the grounds that their decision not to notify, and their decision to grant subdivision consent, was unlawful.
On appeal the Court decided that special circumstances did exist. It placed considerable emphasis on the fact that the transitional provisions of the RMA still applied (and continue to apply until a proposed plan becomes operative). Therefore a consent authority can still decline consent to a subdivision, even if it is a controlled activity. It cannot grant a subdivision consent if it thinks that the land is unsuitable or the subdivision would not be in the public interest.
In the Murray case, the Court of Appeal concluded that it would be extremely rare for a Council to reach the decision that a public interest argument could not succeed. Therefore if an application raises public interest issues, notification must occur, in order to conform to the RMAs' emphasis on opportunities for public participation.
One of the questions that has arisen is whether the fact that the Proposed Plan has passed through all the processes (including appeals) allows a consent authority to conclude that public interest arguments no longer exist, and so the application need not be notified. Neither Court in the Murray case provided a definitive answer to this question for all circumstances.
Section 19 of the Act answers the question for activities that do not require resource consent. Once a new rule allowing activities without resource consent has been notified, as long as the time for submissions on the rule has passed, and no submissions (or appeals) remain outstanding, the activity is permitted, even if the plan is not yet operative. However, that section does not apply to activities which do require a resource consent (i.e. controlled activities).
It is arguable, though, that once the Proposed Plan has passed through the appeals process, less concern needs be given to the public interest arguments because it can be said that the process has settled these aspects. However, given the uncertainty in this area, it would be dangerous to assume on every occasion that the transitional provisions no longer apply and that notification is not necessary. There are often delays of years in disposing of all appeals to a Plan and public interest aspects can change or develop in that time.
In conclusion, the RMA can hardly be categorised as having either expedited or simplified the process for deciding about notification during the transitional period. Given the uncertainty created by the transitional provisions of the Act, it is essential that subdividers still consider seriously the likelihood of public notification at the outset of a development.
Copyright The Lawlink Group Ltd 2000
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
Victoria Chisnall is a staff solicitor with the Blenheim Lawlink firm of Gascoigne Wicks. Victoria practises in litigation, local government and resource management.
Web site: Gascoigne Wicks
Email: gwvchisn@gascwick.co.nz
December 2000
July, 2001
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