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This article is focused on New Zealand law and explains issues from a Common law perspective.
How to obtain a resource consent within New Zealand
To obtain a New Zealand resource consent you must apply in writing to your local council (called for this purpose the "consent authority"). There is a set form for the application and it must include all the necessary information. The process of applying for resource consents and the way in which your council makes its decision is governed by the NZ RESOURCE MANAGEMENT ACT 1991.
For more information on resource consents, see the Ministry for the Environment's website.
How do I know whether or not I need a resource consent?
In general, you will need a resource consent if your proposed activity is for a use of land that is inconsistent with your local district or regional plan. You can establish whether your proposed activity is or is not permitted by this local plan by first establishing what zone you are in according to the plan, and then determining what activities are permitted within this zone. You should contact your local council for information about this.
Your local plan may classify activities in the following way:
- If your proposed activity is a "permitted activity", you do not need a resource consent.
- If your proposed activity is a "controlled activity", you will need a resource consent. The council must grant the consent, but may include conditions on it that relate to issues contained in the local plan.
- If your proposed activity is a "discretionary activity", you will need a resource consent.
- If your proposed activity is a "non-complying activity", you will need a resource consent. The council may grant the consent only if the adverse environmental effects of the proposed activity will be minor or if the proposed activity would not be contrary to the objective and policies of the local plan.
- If your proposed activity is a "prohibited activity", you cannot obtain a resource consent.
How do I apply for a resource consent?
You will need to apply in writing to your local council. The application must be in the prescribed form, which is given in Form 9 in the RESOURCE MANAGEMENT (FORMS, FEES, AND PROCEDURE) REGULATIONS 2003 (SR 2003/153). But each local council will have its own application form that conforms to the prescribed form in the Regulations.
Your application must include an assessment of environmental effects (an "AEE"). The amount of detail you provide in your AEE should correspond to the scale and significance of the effects. (The Ministry for the Environment has published "A Basic Guide to Preparing an AEE", which you can download from its website.
You should also talk to your local council about how much detail they will require your environmental assessment to have. The council may have forms that will guide you.
Council may ask for more information from you
After it receives your application, the local council may send you a written notice asking you to provide more information about your application. You then have 15 working days to either -
- give the council the information
- tell the council, in writing, that you agree to give it the information (the council will then set a reasonable time by which you must give it the information), or
- tell the council, in writing, that you refuse to give it the information
If you don't do one of those three things within the 15 working days, and the council thinks it doesn't have enough information, the council can refuse your application for a resource consent.
It can also refuse your application if -
- you agree to provide the information but don't do so by the date set by the council, or
- you refuse to give the information, and
the council thinks it doesn't have enough information to make a decision.
Whom does the council have to notify about my application?
Unless the application is for a controlled activity or the adverse effects on the environment will only be minor, the council must give public notice of your application and must also specifically notify certain interested parties. The council must do this within 10 working days of you lodging your application.
The interested parties whom the council must notify are as follows:
- every person who the council thinks may be adversely affected if your application is granted
- owners and occupiers of any land to which the application relates
- the regional council or territorial authority for the relevant region or district
- any other iwi authorities, local authorities, people or bodies that the council thinks should be notified
- the Minister of Conservation, if the application relates to an activity in a coastal marine area or an activity on land adjoining a coastal marine area
- the Minister of Fisheries, if the application relates to marine farming or a fish farm
- the Historic Places Trust, if the application relates to land that is subject to a heritage order or that is identified in a district or regional plan as having heritage value, or if the application affects any historic place, historic area, wahi tapu or wahi tapu area
If the application is for a controlled activity or the adverse environmental effects will only be minor, the council need only notify those people whom it believes may be adversely affected by the activity. Further, it need not notify these people at all if all of them have given written approval for the activity.
Who is entitled to make submissions about the application?
The following people may make submissions to the council about the application:
- if the application was publicly notified, any person
- if the application was not publicly notified, any person whom the council specifically notified
Submissions must be made within 20 working days after the notice was given.
Each submission must be in the prescribed form, which is given in Form 13 in the RESOURCE MANAGEMENT (FORMS, FEES, AND PROCEDURE) REGULATIONS 2003 (SR 2003/153). Some local councils will have their own standard form for submissions.
The submission must state whether the person who made it supports or opposes the application.
A person who makes a submission must serve a copy of it on you, the applicant, as soon as is reasonably practicable after serving it on the council.
The council must provide you with a list of all the submissions that it has received. It must do this as soon as reasonably practicable after the closing date for submissions.
There may be a pre-hearing meeting of all the interested parties to clarify or help resolve any issue. The meeting may be requested by the applicant, the council, or anyone who made a submission about your application.
Neither you nor anyone else can be required to attend a pre-hearing meeting unless you, the applicant, agree to this. But if you agree to attend, and then with no reasonable excuse you do not attend, the council can refuse to deal with your application for the resource consent.
After the pre-hearing meeting, the chairperson must prepare a report that states what was agreed and what issues weren't resolved. The report can also set out the nature of the evidence that will be presented at the hearing, the order in which this evidence will be presented, and a proposed timetable for the hearing. The report can't include anything that was said "without prejudice" at the meeting. The chairperson must send the report to the council and all the parties so that they have it at least five working days before the hearing.
The council must take this report into account when it makes its decision on your application.
The council can refer you and anyone who made a submission to mediation, but only if you all agree to this. The council can do this on its own initiative, or because you or a person who made a submission asked for mediation.
Does the council have to hold a hearing?
The council does not have to hold a hearing about your application unless it thinks one is necessary, or unless you or someone who made a submission asks to be heard.
If there is to be a hearing the council must fix a starting date that is not more than 25 working days after the closing date for submissions on the application. If the application was not notified then the date for the hearing must not be more than 25 working days from the date your application was received.
The council must give you, the applicant, at least 10 working days' notice of the date, time and place of the hearing. The same notice must be given to anyone who made a submission and who stated that they wished to be heard on the application.
What factors does the council have to consider?
The council must consider the following matters when deciding on your application and when considering any submissions:
- any actual or potential effects on the environment
- any relevant district or regional plans (or proposed plans)
- any relevant policy statements issued by the Minister of the Environment, the Minister of Conservation or local authorities
- anything else that the council thinks is relevant and reasonably necessary for making a decision
The council cannot take trade competition into account.
More generally, the council will consider the purpose of the RESOURCE MANAGEMENT ACT 1991, which is to promote the sustainable management of natural and physical resources. The main concern is to avoid, remedy or mitigate any adverse effects of activities on the environment. The council will also consider:
- the social, cultural and economic well-being of the community
- the health and safety of the community
- "amenity values", which means factors relating to the area's pleasantness, aesthetic qualities, and cultural and recreational attributes
- matters of national importance
The council's decision
The council's decision must be in writing. It must state the reasons for the decision, the main issues that were in dispute, a summary of the evidence the council heard, and the main findings of fact.
The decision must also state the provisions of the RESOURCE MANAGEMENT ACT 1991 (or other Act or regulations) that the council took into account, and any relevant policy statements and plans that it took into account.
If the consent is granted with conditions, the decision must also state the reasons for the conditions.
(You can apply to the council for it to change or cancel a condition. For the prescribed form for this, see Form 10 in the RESOURCE MANAGEMENT (FORMS, FEES, AND PROCEDURE) REGULATIONS 2003 (SR 2003/153).)
Notice of the decision
The council must send you a copy of its decision, and must also tell you the time within which any appeals against the decision must be lodged. The time limit for doing this is:
- if there was a hearing, no later than 15 working days after the end of the hearing, or
- if there was no hearing and your application was notified to the public or to specific people, no later than 20 working days after the closing date for submissions, or
- if there was no hearing and your application was not notified to the public or any specific people, no later than 20 working days after you first lodged your application
Can I appeal the council's decision?
The applicant and anyone who made a submission may appeal the decision to the Environment Court: see How to appeal a resource consent decision).
If you've applied for a resource consent condition to be changed or cancelled, you can also go to the Environment Court to appeal the council's decision in response to your application.
- Resource management law is detailed and often complex. To maximise your chances of obtaining a consent, it is strongly recommended that you hire a lawyer or other professional with experience in resource management law.
- There are a number of time limits imposed by the Resource Management Act, and these are strictly enforced by the Courts. It's crucial that you familiarise yourself with these time limits, so that you don't jeopardise your application by delay.
- Note that a different process applies for subdivision consents: see How to subdivide your property.
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