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Your Guide to the Resource Management Act

Preface

1 Introduction

2 Who, How and What

3 Understanding the Resource Consent Process

4 Getting Involved in Resource Management Decision-making

5 Taking Action to Protect the Environment

6 Where to Go for Further Guidance

Appendix 1: Matters of National Importance and Other Matters

Appendix 2: Administrative Boundaries for City, District and Regional Councils

Appendix 3: Administrative Boundaries for the Department of Conservation

Appendix 4: Glossary of RMA Terms

Appendix 5: Glossary of Māori Terms

3 Understanding the Resource Consent Process

3.1 Introduction

Resource consents are the most familiar and commonly recognised aspect of the RMA. Resource consents are permission to use or develop a natural or physical resource and/or carry out an activity that affects the environment. They are obtained from regional, district and city councils or the Department of Conservation which, when carrying out this function, are known as consent authorities.

Granting of resource consents is a process for consent authorities to assure themselves, the community and the applicant that the activity in question can proceed provided any adverse effects on the environment are avoided, remedied or mitigated to an acceptable level. According to the Ministry for the Environment's Survey of Local Authorities 2003/04, approximately 55,000 resource consents were processed by consent authorities during the 2003/04 financial year.

Regional and district plans indicate whether applications for resource consent will be required in particular circumstances and, if so, what information should be submitted to support them. All applications must be accompanied by an assessment of environmental effects. Conditions may be attached to a resource consent to avoid, remedy or mitigate any adverse effects associated with the activity in question.

Applications for resource consent are processed by consent authorities as either notified (either publicly though the newspaper and notices sent to affected parties, or in a more limited fashion with notices only being served on affected parties) or non-notified. Applicants may be asked by the consent authority to seek written approval for an activity from people that it thinks are affected parties. Anyone can make a submission where an application for resource consent has been notified to the public generally. In some cases, the council will only notify those people that it thinks are affected parties. In these cases, only those people who are directly notified can make a submission. This is also known as limited notification. The RMA sets out the procedures for making applications and submissions, and seeking written approvals. This section gives a detailed description of these processes and the terms mentioned in italics.

There are basically four stages involved in assessing the effects of your activities:

• Pre-application: The process of determining whether you will need to apply for a resource consent (see Section 3.2 of this guide).
• Making an application: The process of consulting with affected parties, preparing an assessment of environmental effects, and submitting a completed application for resource consent to a consent authority (see Section 3.3).
• Reaching a decision: The procedures that consent authorities use in considering applications for resource consent (see Section 3.4).
• After the decision: Your obligations once a resource consent has been granted (see Section 3.5).

If you wish to go through these steps yourself, helpful information is included in this guide in Sections 3.2 to 3.5 or see www.rma.govt.nz/ Another alternative is to seek help from a professional (eg, a planning consultant or resource management lawyer).

3.2 Pre-application: Where to begin

3.2.1 Doing your homework

One of the most important relationships you can develop during this process is with the relevant consent authority (council). To assist the consent authority in helping you determine your requirements, you should first develop an understanding of the environmental effects of your proposal. It will also help if you can identify a site or range of site options for your proposal before approaching the consent authority. Try to identify and write down the likely effects of your proposal on neighbours and any obvious features in the vicinity, such as roads, streams, rivers, houses, or the coast, and what you might be able to do to deal with those impacts. Once you have a preliminary outline of what you intend to do and how it will affect the environment, call or drop in to the relevant council offices to discuss its requirements. Note however that some consent authorities may charge for lengthy discussions. Most councils have useful information on their websites including electronic copies of their district or regional plans and the relevant application forms, or for more information and useful links see the RMA website.

3.2.2 Approaching the right consent authority

You will need to approach either the local district/city council or the regional council or sometimes both. Ask to speak to someone from the division that deals with resource consent applications. You should approach both the regional council and the local conservancy office of the Department of Conservation if you are proposing to undertake an activity on the coast or in an area administered by the Department of Conservation. Whoever you speak to should also be able to direct you to any other consent authority that may have an interest in your proposal.

Figure 3 on page 24 describes the different types of resource consents and the consent authorities responsible for issuing them.

To help you identify the appropriate consent authorities, maps of the areas which councils and the Department of Conservation are responsible for administering are provided in Appendices 2 and 3.

There are different types of resource consents. Table 1 below lists the different types of resource consents and gives examples of when resource consents might be required.

Table 1: Consent types

3.2.3 Talking to the consent authority

Contact with staff from the consent authority enables you to describe your proposal and become familiar with the plans that will govern your activity. The council will be able to provide information on RMA matters for you to become familiar with. Talking with the council can help avoid misapprehensions and confusion, and allow any applications for resource consent to be dealt with quickly and efficiently. Record who you have spoken to, and if possible, obtain a business card for future reference. If a meeting is not possible then at the very least a phone call is highly recommended.

3.2.4 Establishing the consent authority's requirements

In discussions with consent authority staff, or through reading the relevant district or regional plan, you should find out:

• The provisions in the relevant plan(s) that relate to your proposal. (An indication of the types of plans that consent authorities produce and the matters they cover is provided in Figures 2 and 3.)
• The status of your proposal. The plans will indicate whether your proposal is permitted or is a controlled, restricted discretionary, discretionary, non-complying or prohibited activity. Not all activities will require a consent, but even permitted activities are often defined by their ability to comply with certain standards or conditions. You may be able to modify your proposal so a consent is not required. The different types of activity are outlined in Table 2 on page 26.
• The likely success of your proposal. It may be that your proposal is inappropriate in the location you have chosen. You can save frustration and expense if you can establish whether the proposal is a 'goer' in the eyes of the consent authority.
• What, if any, resource consents you may require. The different types of consent are outlined in Table 1 above. Read the plan carefully to establish what conditions apply.
• If you find that a plan expressly prohibits you from applying for a resource consent for a certain activity, the only way to pursue your proposal is to apply for a plan change.
• If it is established that a resource consent will be required, find out what information you will need to support your application. Try and get an opinion on who the consent authority is likely to consider an affected party and if the council has a standard written approval form if you decide to seek approvals from them. Try to get an opinion on whether the council is likely to notify the application, and if so, whether to affected parties only (limited notification) or to the public generally. Establish the council's fees for processing your application.
• Obtain from the council copies of the information requirements specified in the relevant plan(s), application forms, and any guidance on preparing applications, consultation and assessments of environmental effects.

Table 2: Types of activity and requirements

3.2.5 Confirming the status of the activity

You may establish that what you propose to do is a permitted activity that does not require a resource consent. In this instance, you can ask the consent authority to supply you with a certificate of compliance. This means your activity fully complies with the relevant plans. It can also be useful when selling property or obtaining finance. Crucially, a certificate of compliance can also protect you from future changes to the plan as long as no changes to the activity take place. Consent authorities may charge a fee for issuing a certificate of compliance: you should establish that fee before proceeding.

You may request a project information memorandum (PIM), which details the consent authority's requirements for a particular proposal. This will provide further information for you to determine whether your activities will require a resource consent. You may also request a land information memorandum (LIM), under the provisions of the Local Government Official Information and Meetings Act 1987, which answers important questions about a property and any associated buildings pursuant to the relevant provisions of the Building Act 2004.

3.2.6 Existing use rights

If you are planning to carry out a land-use activity that is existing, or you wish to make small changes to an existing activity (such as purchase a shop and change the items the shop sells), it may be that the activity does not require consent as it holds existing use rights. You can apply to your territorial authority for a certificate confirming existing use rights under section 139A of the RMA. This will enable the council to confirm whether or not it considers existing use rights applicable. Fees are likely to apply for this and you will need to provide detailed information demonstrating the use to which the property has been put. Alternatively, you can apply to the Environment Court to make a declaration that existing use rights apply.

To show existing use rights apply, you must prove to the council that the activity was legally established, that the effects generated will be the same or similar in character, intensity and scale to those which existed when the activity was established, and that the activity has been continuous. However, if your activity relates to one that is controlled by a regional council's regional plan, existing use rights have a limited life once the rule controlling it in the regional plan becomes operative. You may require a resource consent (to be applied for within six months) of the operative plan date.

If you are unsure of these matters, talk to the council or a professional such as a planning consultant or resource management lawyer for advice.

3.2.7 Complying with other legislation

Depending on the nature of the proposal, other legislative requirements can apply, for example:

• The physical construction or alteration of buildings or structures may require a building consent under the Building Act 2004 from the city or district council. Many construction jobs will require a building consent but not a resource consent. Obtaining a building consent does not in any way guarantee you will automatically be granted a resource consent, if you require one.
• Any arrangements for connection to water supplies or the disposal of sewage, trade wastes or stormwater into a district- or city council-operated system will generally require approval from the relevant authority.
• Activities proposed to be undertaken in council owned and managed reserves may require a licence under the Reserves Act 1977.
• Most district plans prepared under the RMA contain provisions to protect historic buildings, places, wāhi tapu and archaeological sites. However, any activity that may disturb, damage, destroy or otherwise alter an archaeological site may require separate approval from the New Zealand Historic Places Trust under the Historic Places Act 1993.
• Dividing property into unit titles must be undertaken in accordance with the Unit Titles Act 1972.
• Activities based in an area managed by the Department of Conservation (such as a national park or a scenic reserve) are likely to require a concession from the Department under the Conservation Act 1987.

3.3 Making an application

3.3.1 Consulting effectively

In identifying the potential effects of your proposed activity, it can be useful to talk to people who may be interested in, or affected by your activity. The RMA makes it clear there is no duty to consult any person about an application for resource consent. However, talking to those people interested in, or potentially affected by, your proposal can help you identify potential effects and prepare a complete assessment of environmental effects to accompany your application for resource consent. If you do consult people in preparing your application for resource consent, you must also include a statement in your assessment of environmental effects that identifies those people affected by the proposal, how you have consulted them, and detail any response to their views. Such a statement will help the consent authority determine whether or not to notify the application.

Your initial discussions with the consent authority should help you establish whether there are any potentially affected parties and who you may want to consult. While consultation is not mandatory under the RMA, the consent authority may suggest you consult with adjacent landowners and occupiers, local iwi or tāngata whenua groups, the Department of Conservation, community groups, special interest groups, the Historic Places Trust, utility providers (eg, Transit New Zealand), recreational and environmental groups, and any other individuals or organisations that may be affected by your proposal.

Consultation is more than just merely telling, presenting or notifying people about your proposal. A considerable body of case law has developed on the elements of good consultation. Essentially, you must be prepared to consult without having first made up your mind about every aspect of your proposal. Consultation should be seen as an opportunity for you to explain what you propose to do and to enable people to determine how it may affect them. They may ask you to modify your proposal to address their specific concerns, and for this reason, it is important to maintain an open mind. You must provide people with enough information to make a rational assessment, and give them adequate time to respond. You should consider preparing some written material or sketches of the proposal so it will seem 'real' to the people you are asking to respond. If need be, you should supply them with any further information they may request.

People are likely to be more supportive of your proposal if they feel you have made a genuine and meaningful effort to take their views into account. Such an approach can help you avoid considerable time, cost and anguish later on. Consultation can ensure that all issues are identified, therefore providing a platform for sorting out potential problems before the formal application process.

Affected party approvals

If the council considers the environmental effects of your resource consent application will be no more than minor, and you have obtained the written approval of all those it considers likely to be affected, it is likely the council will not notify the application.

If you are requesting the written approval of your proposal from a person, they will need to have the opportunity to view the resource consent application, and must sign a form and plans showing they understand the proposal and how it might affect them. Many consent authorities have developed forms for this purpose. These can be attached to the application.

Limited notification

If the council considers the environmental effects of your resource consent application will be no more than minor, but you have not obtained the written approval of all those it considers likely to be affected, the council may serve notice of the application on only those people it considers may be affected, rather than publicly notifying the application. In this case, the council will serve notice on all the identified affected parties, even if some have provided written approval to the application, but details of the application will not be advertised in the local newspaper.

3.3.2 Consulting tāngata whenua

The key focus for councils is to identify and provide for the specific concerns of tāngata whenua in their statutory documents (see Sections 2.2.4, 2.2.5 and 2.2.6 of this guide). As consent authorities, councils must carefully consider potential effects of an application on tāngata whenua. This need to consider effects implies that councils should have a working relationship with tāngata whenua and an understanding of their interests and concerns. It may also mean that councils request specific information about the potential effects of a proposed activity on tāngata whenua. Tāngata whenua may be able to provide this information as an assessment of cultural impacts or provide you with verbal or written advice on the potential impacts.

Councils have a statutory obligation to ensure information relevant to Māori under the RMA is considered. In particular, there is a statutory duty to consult tāngata whenua when preparing plans.

While there is no duty for applicants to consult with tāngata whenua in relation to resource consent applications, consultation may help ensure your proposal is acceptable to tāngata whenua, or highlight areas which could be changed to take into account tāngata whenua concerns or interests.

If you do not initiate discussions with tāngata whenua representatives, then the council may do so to better understand any potential effects related to tāngata whenua values and interests. However, if you take the lead in initiating discussions at an early stage, you are likely to submit a better quality application and avoid delays in its consideration.

The consent authority can advise whether it thinks it would be helpful to consult with tāngata whenua, and will also be able to direct you to the appropriate representatives. Many councils employ iwi liaison officers to help applicants and tāngata whenua in resource management matters. As a starting point, Te Puni Kōkiri have developed a database of Māori organisations whose mandates to represent their iwi and hapū have been recognised by the Government and the area over which they have a kaitiaki interest. Visit: www.tekahuimangai.govt.nz/

In undertaking consultation with tāngata whenua, the principles of meaningful consultation apply (see Section 3.3.1). You must provide them with adequate information and time to formulate a response. You cannot assume the absence of a reply constitutes acceptance of your proposal. Iwi organisations deal with increasingly large numbers of resource consent applications, and need adequate warning of your proposal. It is best to ask iwi or hapū representatives how they would like to be consulted, rather than impose a schedule on them. Meetings may be required, in which case you may wish to seek assistance from experienced council staff, council iwi liaison staff or the iwi/hapū themselves. You should also be prepared to visit local marae.

3.3.3 Preparing the application

Application forms can be obtained from the consent authority. The RMA outlines a few basic requirements:

• A description of the activity for which consent is sought and its location.
• An assessment of any actual or potential effects the activity may have on the environment, and the ways in which any adverse effects may be mitigated. Commonly known as an assessment of environmental effects, this is the most important component of the application.
• Any information required to be included in the application by a plan or regulations. You can find this out from consent authority staff or from looking at the plans.
• should also include a statement specifying all other resource consents you may require from any consent authority (and whether you have applied for such consents). This information enables consent authorities (if more than one is involved) to coordinate their activities and potentially deal with the applications as a package, thereby saving you time and money.

3.3.4 Preparing applications for subdivision consent

The processes for preparing and considering applications for resource consent to subdivide land differ from the normal consent process. For the purposes of the RMA, subdivision of land includes dividing property by issuing a separate certificate of title, or by company lease, cross lease or unit title. Changes in land title generally happen before some form of development, and therefore the RMA establishes a unique set of requirements for subdivision to ensure:

• future development is adequately provided for in terms of services such as road access and water, power and gas supplies
• the impact of increased use on the services and other assets such as park land provided by councils arising from the development are addressed by the developer.

It is important to bear in mind that it is the district plan which establishes whether a subdivision will require a consent in any particular instance, and if so, what type of consent. District plans will contain provisions specific to subdivision (including minimum lot sizes) that you must take into account in preparing your application.

The information relating to boundaries and reserves should be contained on a plan attached to the consent application. It is important the plan is a true and accurate record of your intentions as there is little room for alteration once a resource consent has been granted. For this reason, subdivision applicants should seek assistance from a surveyor in preparing their plans. The RMA sets out what consent authorities must consider in subdivision applications, the special conditions they can impose on granting consent, and the subsequent process that consent holders must go through in exercising their consent (dealt with in later sections).

3.3.5 Preparing the assessment of environmental effects

Every application for resource consent must include an assessment of environmental effects. There are no exemptions to this requirement. The work involved in preparing an assessment of environmental effects will depend on the scale and significance of the activity's actual and potential effects on the environment.

The RMA provides some guidance on what should be included in an assessment of environmental effects and what should be considered in preparing one (see below). Further guidance is available in A Guide to Preparing a Basic Assessment of Environmental Effects available from www.rma.govt.nz/

If you have already thought about the nature of your activity and its effects in consulting with the consent authority or affected parties, then you are well on the way to preparing an assessment of environmental effects.

3.3.6 Checking and submitting your application

If possible, and if the scale and nature of your proposal warrant it, meet with your consent authority again before submitting the application. Address any gaps before formally submitting the application. Once you have done so, ensure you obtain a receipt of some form.

3.4 Reaching a decision

3.4.1 Processing the application

Once an application for resource consent has been received by a consent authority, its consideration is governed by the RMA. If the council is not satisfied that all relevant information is included in the application, it can refuse to accept the application. Once the completed application is accepted by the council, it is considered as a new application. Each step in the resource consent process is outlined in Figure 4 on page 37, along with the timeframes specified by the RMA.

The RMA enables consent authorities to make a number of considerations that can dramatically affect the time it takes to process the application. These include:

• deferring consideration until other consents have been obtained
• making requests for further information
• deciding whether to notify the application, whether to seek the written approval of affected parties, and whether to hold a pre-hearing meeting and/or a hearing.

Whether these happen depends to a large extent on the nature of your proposal and the effort and resources you have put into understanding the consent authority's requirements and the interests of those likely to be affected by your proposal.

3.4.2 Deferring the processing of applications

The RMA allows the consent authority to defer the processing of an application for resource consent if it considers that other consents are required for the activity, and that, to enable better understanding of the proposal, these other consents should be applied for first. Although it sounds like a potential obstacle, this provision is rarely used. It can actually speed the entire process, as it allows for all the necessary requirements to be processed simultaneously by one or more consent authorities, with recourse to joint or combined hearings. It certainly emphasises the importance of identifying all your consent requirements early in the process. If need be, you can seek to have such determinations reviewed by the Environment Court.

3.4.3 Requesting further information

The RMA also allows the consent authority to request any further information from you to help it in considering an application. Such requests should be made in writing with reasonable time before any hearing. Where the consent authority considers that significant adverse environmental effects could arise from the proposal, it may require you to explain possible alternative locations or methods for your activity, reasons for making the proposed choice and the consultation you have done.

Once the request has been made, the statutory 'clock' stops (the time taken to provide the information is not included in the calculation of the statutory timeframes) until the information is provided. You must respond to the request for further information within 15 working days from the receipt of the request. You can either:

• provide the information
• tell the council in writing you agree to provide the information, or
• refuse to provide the requested further information to the council, and request it to proceed with the application on the basis of the information already provided.

If you refuse to provide the requested information, the council must then process the application and either grant or refuse the application based on the information it already has. The council is unlikely to grant an application for resource consent if it cannot determine the likely effects.

Around 35 percent of applications for resource consent generate requests for further information (Ministry for the Environment, Survey of Local Authorities 2003/04). In addition, around half of all consent authorities are only prepared to officially acknowledge receipt of an application once it has been checked.

3.4.4 Deciding whether to notify the application

There are three different ways an application can be processed. These are:

• non-notification
• limited notification
• public notification.

Apart from deciding whether to grant an application, the most important decision a consent authority makes is which process is appropriate for the application. The process decided on will directly impact on the time it takes to process the application.

Limited notification

For applications that are being processed under the limited notification process, only those parties on whom the council has served notice of the application can lodge a submission to the application and speak to their submission at a hearing if one is held.

Public notification

The public notification process requires the consent authority to serve notice of the application on:

• owners and occupiers of the land to which the application relates
• people it considers are adversely affected by the application (including adjacent landowners and occupiers)
• local authorities, iwi authorities and other people or authorities as it considers appropriate
• the Minister of Conservation, the Historic Places Trust, and the Minister of Fisheries if, respectively, the application relates to land adjoining the coastal marine area, would affect a recognised heritage value, or relates to marine or fish farming.

The consent authority also has to advertise the application in local newspapers. While not mandatory, it may also erect a sign at the site giving notice of the application.

Notification decision

The RMA expects that all applications for resource consent will be publicly notified unless one or more exceptions apply. In practice, these exceptions apply in the majority of cases. According to the Ministry for the Environment's Survey of Local Authorities 2003/04, only 4.8 percent of all applications were publicly notified in the 2003/04 financial year.

Proposals that will have a greater, more widespread effect on the environment are more likely to be notified than those that will not. Consent authorities may require written approvals to be obtained from neighbours and other affected parties if the effects are likely to be relatively minor and localised. Generally, a greater proportion of the consent applications handled by regional councils are publicly notified (nine percent) than those processed by district and city councils (two percent). This reflects the potential impact on the environment of the proposals that the two tiers deal with.

It has already been suggested you discuss with the consent authority whether your application is likely to be non-notified or notified, well before you submit the application. At that stage, the consent authority should also be able to indicate those parties it considers could be adversely affected by your proposal. The council may be able to advise if you are unable to obtain all the identified affected parties approval that the application will be only served on affected parties (ie, limited notification) or whether the application will be publicly notified. This will give you the direction you need to begin the consultation exercise.

While not mandatory, the effort you put into consultation with potentially affected parties is clearly a factor in the consent authority's decision on notification. It may suggest that you seek written approvals from affected parties as an alternative to notification. As indicated earlier, the consent authority has 20 working days to process a non-notified application, but the 'clock stops' while those written approvals are being obtained, if required. If you have already carried out a comprehensive consultation exercise then this will help you obtain those approvals quickly and help the consent authority expedite the processing of your application. It also enables you to take into account the concerns of those parties early on and amend your proposal accordingly.

Once your application has been formally received, the consent authority has 10 working days to publicly notify it, unless awaiting a response to a request for further information or written approvals. Once notified, anybody with an interest in your proposal has 20 working days to make a submission. The process for making submissions is described in the next section. Once the submission period has closed, the consent authority will provide you with a list of the submissions it has received.

3.4.5 Holding pre-hearing meetings

The RMA allows consent authorities to hold a pre-hearing meeting between applicants, submitters and other interested parties if it considers that such a meeting could help clarify, mediate or facilitate a resolution on any matter or issue. In 2005, the RMA was amended to provide a more detailed process for pre-hearing meetings to focus on achieving better outcomes from meetings.

The consent authority can suggest a pre-hearing meeting if it chooses, or if one of the parties asks for one. If the applicant requests a pre-hearing meeting, submitters can be required to attend. If any submitter, or the applicant, is required to attend a pre-hearing meeting, and doesn't attend, the council can refuse to consider their submission or application unless they have a reasonable excuse for non-attendance. Councillors, planning officers, or any other person responsible for making the decision on the application may also attend if the other parties agree.

The chairperson of a pre-hearing meeting must prepare a report and circulate it to all parties who attended the pre-hearing meeting, five working days before the hearing begins. This report will set out the issues that were agreed and those that are outstanding. It may also set out the nature of evidence to be called, or a proposed timetable for the hearing. The consent authority must have regard to the report in making its decision on the application.

Pre-hearing meetings have proved to be a popular way of resolving issues in the consent process. Before the 2005 amendment to the RMA, pre-hearing meetings were used in about half of all notified consent applications. In these instances, 23 percent resulted in all outstanding issues being resolved with the result that no hearing was required.

Holding a pre-hearing meeting does not guarantee that a hearing will not need to be held, or that the consent will be granted. All parties must be willing to meet and listen to the views of other participants. A pre-hearing meeting may lead to a shorter hearing, and/or one where the potential for conflict between the participants is avoided. As with most elements of good practice, it involves a little bit more work upfront by the council, applicants and submitters to avoid delays and frustrations later.

Mediation

The RMA also allows the consent authority to refer parties to mediation, with the agreement of all parties. The person who conducts the mediation must report the outcome of the mediation to the consent authority.

Mediation can help parties identify common ground and define, narrow, and resolve issues. Like pre-hearing meetings, mediation can reduce hearing time, negate the need for a hearing and lessen the chance of subsequent appeals.

3.4.6 Holding hearings

The RMA does not require that hearings be held in every instance. It is uncommon for hearings to be held for non-notified applications. In addition, many notified applications do not result in a hearing, often due to the pre-hearing meetings process. A hearing is only held when the consent authority considers it necessary or an applicant or submitter requests to be heard.

A hearing must start no later than 25 working days from the closing date for submissions (or where an application is not notified, 25 working days from the receipt of the application). The consent authority must give at least 10 working days notice of the start date for the hearing to the applicant and every person who made a submission and stated they wished to be heard.

The consent authority also has the discretion to direct an applicant to provide briefs of evidence to it before the hearing. If the consent authority directs pre-provision of evidence, the applicant must present briefs of evidence to the consent authority 10 working days before the hearing. The council officer's report should be circulated to parties 15 working days before the hearing and a submitter using expert evidence must present briefs of evidence to the consent authority five working days before the hearing. To facilitate the pre-provision of evidence in these cases where it is required, the time period for beginning the hearing is 40 working days after the close of submissions.

Pre-provision of evidence will not be appropriate in every case. It will be most useful where the application is complex or where there are conflicting opinions between experts.

Under the RMA, in general, all relevant resource consents should be applied for at the same time, even where these are required by different consent authorities (eg, the regional and district council may require separate consents be sought for the same activity). This enables councils to consider the potential effects of the entire activity, rather than looking at specific aspects in isolation. In these cases, the RMA encourages joint hearings for resource consent applications relating to the same proposal lodged with more than one authority, or combined hearings for more than one application relating to the same proposal lodged with the same authority. Where more than one consent authority is involved, the regional council generally acts as the coordinating agency. Joint and combined hearings enable all elements of a relatively complex proposal to be dealt with simultaneously, thereby significantly speeding up the process. Where the applications are insufficiently related and the applicant agrees, such hearings need not be held.

The RMA also sets out the way in which hearings should be held:

• hearings must be public and avoid unnecessary formality
• consent authorities must recognise tikanga Māori (including accepting evidence in te reo Māori)
• no person other than the chairperson or other member of the hearing committee may question any party or witness
• cross-examination is not permitted
• anyone, including the applicant and submitters, has the right to be heard, although the consent authority can limit this if there is likely to be excessive repetition
• information can be protected (by excluding the public from the hearing) if it is considered that its disclosure could give serious offence to tikanga Māori, expose the location of wāhi tapu, or lead to the release of commercially sensitive information
• if reports are prepared by staff from the consent authority (as they invariably are) they must be distributed to the applicant and all submitters attending the hearing at least five working days before it starts
• a consent authority may request and receive information or advice at a hearing.

Representatives of the consent authority (usually councillors) chair and sit on the hearing committee, and are charged with keeping order. Applicants and submitters may retain people to represent them (often a lawyer or planner). Both applicants and submitters may call witnesses to present evidence relating to the case. Evidence may be presented in writing or given orally.

Although the consent authority has a quasi-judicial role, it is important to remember that the hearings process is a forum for people to present their views about the environmental impacts of a particular proposal. All parties have equal rights to a fair hearing, and antagonistic behaviour should be avoided. People giving evidence should focus on the environmental effects of the proposal.

3.4.7 The decision

Decisions on applications are made by a hearing committee (where a hearing has been held). The RMA provides for decisions on most non-notified consent applications to be delegated to subcommittees of the consent authority, consisting of consent authority staff and/or councillors. This helps increase the efficiency of the decision-making process.

The RMA also allows consent authorities to delegate decisions (and the hearing of submissions) on resource consent applications (or on notices of requirement) to independent commissioners. Consent authorities often use this approach where they have an interest in the proposal themselves, or the application is complex or controversial enough to warrant involving a more independent or technically qualified decision-maker.

If the application has been notified, decisions must be released by the consent authority no later than 15 working days after the end of hearings (or within 20 days of the closing of submissions if no hearing eventuated). Decisions on applications that are not notified must be released no later than 20 days after the application was first lodged (noting the clock stops if further information is requested until the request has been satisfied by the applicant or written approvals obtained).

Decisions must be in writing and:

• specify reasons for the decision
• list the main findings of fact
• note the principal issues in contention
• provide a summary of the evidence heard
• identify the relevant plans and policy documents considered.
• must be made available at the council's offices and public libraries. Notice of the decision must be served on the applicant and all submitters.

The RMA sets out the matters that consent authorities must consider in deciding whether or not to grant consent, and if so, what conditions to impose. From your perspective, it is important to note that the RMA requires consent authorities to take into account:

• Part II of the RMA; that is the purpose and principles of the RMA (described in Section 1.5 of this guide)
• Section 104 of the RMA, including:
  • any actual and potential effects on the environment of allowing the activity
  • any relevant policy statement or plan
  • any other relevant matters
• where relevant, section 105 of the RMA, the nature of any discharges and the sensitivity of the proposed receiving environment, reasons for the applicant's choice, and any possible alternatives.

Conversely, the RMA does not allow consent authorities to have regard to:

• any effect on any person who has given written approval to the proposal
• trade competition.

The RMA allows consent authorities to impose conditions on the granting of consent, or turn down an application for anything other than a controlled activity or a restricted coastal activity. A consent authority can only grant an application for a non-complying activity where the proposal would not be contrary to a plan (where one exists) or where the activity would have minor adverse effects on the environment and the proposal meets Part II of the RMA and section 104. The consent authority may refuse to grant a subdivision consent, or may grant such a consent subject to conditions where the land is likely to be subject to material damage by natural hazards, or where the use may accelerate such a hazard, or where sufficient provision has not been made for access to each lot created. Discharge permits for activities that would cause a significant adverse environmental effect can only be granted where justified by exceptional circumstances, or where the work is temporary or essential.

The conditions which may be attached to granting a resource consent can include:

• paying a financial contribution (may include money and/or land)
• bonds or covenants requiring other conditions to be met
• providing services or works of a remedial nature (such as tree planting)
• a requirement to carry out monitoring and sampling work once the activity has begun, and to supply this information to the consent authority regularly.

Councils often impose other conditions relating directly to the effects of the activity. The ability to require bonds, covenants and financial contributions is most commonly used for subdivision consents, and can apply after the resource consent has expired.

Often, discharge permits are granted subject to the consent holder adopting the best practicable option to minimise any potential or likely adverse effects on the environment. This allows the consent holder to find the most cost-effective means to address those effects, and also adopt any new technologies that may develop during the life of the consent.

If, by chance, a proposal does not proceed, the RMA details how to refund money given as bonds or return land.

3.4.8 Decisions on applications for subdivision consent

The RMA outlines conditions that can be attached to granting subdivision consents. These include provisions for esplanade strips and reserves, earthworks, building sites and the amalgamation of allotments. Esplanade reserves and strips enable public access to rivers, lakes and the coast to be maintained and enhanced, and assure the protection of conservation values in those areas. Esplanade reserves become district/city council property to be administered as public reserves. Esplanade strips are a flexible way of pursuing the same objectives; they move in tandem with changes to river banks and the coastline, and remain owned by the landholder, while providing for an appropriate level of public access.

The standard breadth of esplanade strips and reserves is defined as 20 metres alongside lakes and rivers of a certain size. Compensation is payable to landowners where a greater width is proposed to be taken, or any lot created by subdivision is greater than four hectares.

These conditions may be imposed in addition to those provided for elsewhere in the RMA. More often than not, consent authorities impose financial contributions, bonds and covenants on granting consent for large subdivisions of land which, if developed for a subsequent use, will need to be serviced by roads, water supplies and other utilities. Examples of such conditions are provided later in this section.

3.4.9 Consents for restricted coastal activities

Restricted coastal activities are described in regional coastal plans as having significant or irreversible effects on the coastal marine area. They undergo a different assessment process from other resource consents. They are decided by the Minister of Conservation on the recommendation of a regional council. The recommendation is itself subject to appeal, but the Minister's decision is final. The regional council or the local conservancy of the Department of Conservation will be able to advise you about this process.

3.4.10 The costs of the consent process

With the principle of user pays in mind, the RMA allows consent authorities to recover the costs of processing applications for resource consents or certificates of compliance, providing information requested by an applicant or any other party, using resources in monitoring and administering consents that have been granted, and processing private plan changes.

On this basis, all consent authorities have implemented a fee schedule for processing different types of applications. These fees or fixed charges are generally required as a deposit on submission of an application. Councils then use supplementary provisions in the RMA to charge additional fees to recover the actual and reasonable costs of processing individual applications. This may include council officers' time, hearings costs and specialist input. The RMA requires the consent authority to consider the relative benefits to the consent holder and the community at large in setting these fees. The council must provide an estimate of the likely charge upon request.

These are the direct costs associated with an application for resource consent. In addition, you will need to take into account the costs you may incur in preparing an assessment of environmental effects, obtaining legal and other specialist advice, and the loss of productive time. Once a consent has been granted, you may be required to pay an annual monitoring charge to the consent authority so it can check you are complying with the terms of your consent.

3.4.11 The time involved in obtaining consents

Figure 6 on page 39 provides an indication of the time involved in the resource consent process. Working days are defined as any day other than a weekend, a public holiday, or any time between 20 December and 10 January.

The RMA allows consent authorities 70 working days to process notified (both limited and public) applications for resource consent but only 20 working days to process non-notified applications for resource consent. The extra time required to process a notified application provides for the application to be publicly notified (or in the case of limited notification, served on affected parties), submissions to be made, and arrangements for hearings to be made. In addition, the consent authority is allowed more time to make a decision so all the viewpoints presented can be taken into account.

Under certain circumstances, these timeframes can be extended provided the council has taken into account the interests of the applicant, the community, and avoids unreasonable delay. The timeframe may be extended by no more than double the period specified in the RMA. This can be done at the request of the applicant or by the consent authority itself, but all parties must be notified. Alternatively, a consent authority may extend timeframes for as long as it thinks fit, at the request of, or with the agreement of, the applicant.

The Ministry for the Environment's Survey of Local Authorities 2003/04 indicates that 77 percent of all resource consent applications within the 2003/04 financial year were processed within the timeframes specified in the RMA. The survey also showed that consent authorities formally extended the timeframes on 12.6 percent of the total resource consents processed.

You can do a lot to ensure the process goes smoothly. You can take a proactive approach to identifying information requirements, undertaking consultation at an early stage, and providing information promptly.

3.5 After the decision

3.5.1 Start and duration of the consent

Resource consents start once the period for appeals to the Environment Court has ended if no appeals have been lodged, or when any appeals that were lodged have been resolved. You must carry out the proposed works and be undertaking the activity within five years of the consent being granted unless otherwise stated in the consent, otherwise your consent will lapse. You are able to apply to the consent authority for an extension before the expiry of five years. When considering the application to extend the lapsing period, consent authorities must take into account matters such as whether you have made substantial progress or effort towards using the consent, whether you have obtained the written approval of those affected by the extension and the effect of the extension on the policies and objectives of any plan. Similar provisions apply when consents previously exercised may be cancelled if not exercised for five years.

Once granted, resource consents for land-uses, subdivisions and reclamation remain valid indefinitely, unless otherwise specified in their terms. All other consents have a maximum lifespan of 35 years, if specified in the terms of the consent, otherwise the consent is only valid for five years. In placing limits on the life of some consents, the RMA strikes a balance between providing the certainty you require and the need to re-evaluate some approvals if unforeseen adverse effects arise.

3.5.2 New consents to replace existing consents

Existing consent holders have priority over new applications for the same resource (eg, water allocation) when they apply for a new consent to replace an existing one. When existing consent holders are given priority, the consent authority must consider the following factors:

• the efficiency of the person's use of the resource
• the use of good industry practice by that person
• whether the existing consent holder has been served with an enforcement order or convicted of an offence under the RMA.

The priority process is a default position that can be changed by the regional plan (and does not take effect until August 2008).

Consent authorities must also have regard to the value of existing investment when determining applications for new consents to replace existing consents. This requirement only applies to applications made where the existing consent holder applies for a new consent for the same activity and the application is made at least three months before the expiry of the existing consent.

3.5.3 Exercising a subdivision consent

The RMA sets out the steps that must be followed once you have obtained a subdivision consent. Consent authorities can issue consent notices that allow conditions to be placed on granting subdivision consents that are recorded against the certificate of title. The RMA also allows consent authorities to issue completion certificates, where compliance with a condition relies on work being completed, such as forming an access road or providing street lighting. If the applicant fails to complete work for which a bond has been provided, the consent authority may carry out the work itself and recover the cost of doing so from bond moneys.

If specified by a district plan, the act of subdivision can be made a permitted activity. In such instances, the landowner must obtain a certificate of compliance to proceed with creating the new title. Once the certificate of compliance has been obtained, or the subdivision consent that the plan specifies has been granted, the subdividing owner has five years (unless otherwise stated in the consent) to submit a survey plan to the district or city council for approval. The survey plan must contain details of the esplanade reserves and strips and access strips that may have been required as conditions on the subdivision consent.

The consent authority will then determine whether the survey plan complies with the relevant subdivision consent or certificate of compliance. Assuming that approval has been obtained, and the survey plan has been sealed and certified by the consent authority, the owner has three years to deposit the survey plan with Land Information New Zealand for checking under the Land Transfer Act 1952. Only when Land Information New Zealand accepts the plan can the new title be created.

3.5.4 Ownership and transfer of consents

While resource consents are neither real nor personal property, they can be dealt with on the death or bankruptcy of the consent holder by a personal representative or an official assignee of the consent holder. Most resource consents are attached to the land or site to which they relate, and can therefore be transferred to new owners when the land is sold. People given express or implied permission by a consent holder to act on a consent are also bound by any conditions attached to that consent. This applies to employees and contractors working for organisations that hold resource consents.

Water permits can be transferred in whole or in part and for limited periods. The transfer of discharge permits is permitted where this is expressly allowed by a rule or plan or by consent of the authority. Discharge permits cannot be transferred if the transfer would worsen the actual or potential effects of the discharge on the environment or would contravene a national environmental standard. If discharge is to water, then the permit can only be transferred if both sides of the water body are within the same catchment. If the discharge is to air, then the permit can only be transferred if both sites are within the same airshed. Applications for the transfer of a discharge permit must be lodged jointly by the permit holder and the person to whom it will be transferred.

3.5.5 Changing or cancelling consent conditions

It may be that, in your opinion, the conditions imposed on your consent are impractical, unachievable or unjustified. The RMA allows you to apply to the consent authority for the change or cancellation of any condition attached to your resource consent, other than the term for which it has been granted. The only exceptions are subdivision consents for which a survey plan has already been deposited.

As a consent holder, you can apply at any time in the life of the consent for a change or cancellation of conditions, apart from a change or cancellation to the conditions on the duration of the consent. The application will be treated as though it is an application for a resource consent for a discretionary activity, including determining whether any parties are affected. The council will only consider those effects relevant to the change in condition(s), not the entire proposal from scratch. Those who made a submission on the original application are considered affected, in addition to any person who may be affected by the change or cancellation.

3.5.6 Reviewing consent conditions

The RMA also allows the consent authority to review the conditions attached to any resource consent that it has granted, with the exception of subdivision consents. However, the RMA limits the circumstances in which such reviews may be done, to protect consent holders. These situations are:

• At times that are indicated in the consent itself. If there is some uncertainty about the potential effects of an activity, a review clause enables any adverse effects that do arise to be addressed.
• To ensure the consent holder continues to actively seek the best practical option to deal with adverse effects, for discharge and coastal permits. This enables new, more efficient and more cost-effective technologies to be used as they are developed.
• To require a consent holder to operate within new national environmental standards as they are developed in the case of a water, coastal or discharge permit.
• To require a consent holder to operate within new rules relating to water quality and quantity as they are developed to address particular problems that may not have been identified at the time the consent was granted. Provisions in the RMA ensure that compliance with new rules can be gradual, to allow consent holders to adjust their activities.

The RMA sets out the procedure for consent authorities to review the conditions attached to a consent. This includes a requirement to inform the applicant and the original submitters, allow for further submissions and hold a hearing if necessary.

3.5.7 Lodging an objection

If you are unhappy with a consent authority's decision in the following matters, the RMA allows you to object to the consent authority about:

• some decisions to refuse or grant a resource consent, and place conditions on a consent
• decisions over issuing certificates of compliance
• decisions to charge additional processing fees for resource consent applications
• requirements for further information
• refusing to accept the application for lodgement.

You can object (rather than appeal) to a decision by consent authority staff (made under delegated authority) to refuse consent for an application only if it was non-notified, or no submissions were received after notification. A similar right of objection is available for decisions over applications to change or cancel any condition, or where a consent authority reviews those conditions. Objections are an important avenue for applicants and consent authorities to negotiate the practicality of conditions placed on resource consents.

All such objections must be made in writing to the consent authority within 15 working days of the decision being issued, setting out the reasons for the objection. Consent authorities must consider the objection within 20 working days, or, in the case of an objection relating to processing fees, as soon as practicable. Objections will normally involve a hearing to enable the objector to present their case, and the consent authority must provide written reasons of its subsequent dismissal or upholding of the objection.

The only opportunity to challenge a decision to decline the consent by the council itself, or to impose certain conditions on a consent where the application was notified (and submissions were received), is to lodge an appeal in the Environment Court.

3.5.8 Lodging an appeal

If, as an applicant, you are unhappy with any of the following decisions made by a consent authority you may lodge an appeal with the Environment Court:

• declining your application for resource consent
• imposing conditions on granting, changing or reviewing a resource consent
• dismissing your objection on the basis of any of the matters outlined above.

Submitters may also appeal a consent authority's decision on a resource consent application. Generally, submitters to a proposed plan or policy statement have the same right to appeal as submitters on a notified application for a resource consent. Appeals on plans and consents generally follow the same process.

You must lodge the notice of appeal with the Registrar of the Environment Court (there are registries in Auckland, Wellington and Christchurch) and serve notice on the consent authority whose decision you have appealed within 15 working days of receiving notice of that decision yourself. The notice must state the reasons for the appeal, and what you want done about it. Within five working days of lodging the appeal with the Environment Court, you must also serve notice on any person or organisation that originally made a submission on the matter and the applicant.

The RMA also allows submitters to appear at proceedings, as well as any person or organisation with an interest greater than the public generally. In practice, the latter might include such organisations as the Department of Conservation, an iwi authority, tāngata whenua group, or a public health agency. Such parties must give notice to the Court within 30 working days after the appeal is lodged.

In determining an appeal, the Environment Court has the same powers as the organisation whose decision is the subject of the appeal. The Environment Court must have regard to the decision that is being appealed. It has the powers to accept evidence that was submitted at the consent authority hearing and to direct how evidence is to be given to the Court. This enables the Court to take evidence as read, and helps the Court focus on the issues of contention and shorten the hearing times, rather than having to fully rehear every application.

The Court's decisions are final unless it chooses to review its decision due to new information coming to hand, or its decision is appealed to the High Court on a question of law. However, any appeal to the High Court, does not by right, act to stay (or delay) the effect of the Environment Court's decision.

The Environment Court has the powers of a District Court in the exercise of its civil jurisdiction. It can hold participants in contempt of Court, for things such as inappropriate behaviour in the Court or for disobeying a direction made by the Court, and can order one party to pay the costs of another. The implications of this are that you must consider all your options before lodging an appeal. If you decide to appeal you and all other parties must cooperate with the Court.

The Court does not, as a rule, award costs to a successful party, but it may do at its discretion. This does not mean that costs will be awarded against an appellant to compensate a developer for the delays associated with establishing their proposal, or to penalise those parties who refused to enter into mediation.

Where someone has acted inappropriately, for example acting in bad faith or with a 'vexatious' intention, they may have costs awarded against them. Vexatious behaviour could include someone who proceeds with their case despite repeated warnings from the Judge that their evidence is irrelevant. A hearing in the Environment Court is not a forum for arguing general issues. Appeals should relate to the plan or policy statement being considered, the consent authority's decision, the applicant's proposal and/or the effects of the activity on the environment. Costs may be awarded against people who fail to proceed with a hearing or give insufficient notice of abandoning their case. For these reasons, you should seek legal advice before proceeding to lodge an appeal.

Remember, the appeal process is an important way for people with genuine concerns about a decision to seek redress. The RMA has a number of mechanisms to encourage the fair and efficient hearing of parties, including an opportunity to conduct the proceedings without undue formality, recognise tikanga Māori, hear proceedings together, hear proceedings locally, hear appeals as soon as practical, and hear appeals in public. The Environment Court actively encourages parties to take part in conferences and forms of alternative dispute resolution (such as mediation) as an alternative to continued litigation.

If your concerns are not met by an Environment Court decision you may be able to appeal to the High Court. However, you may only appeal to the High Court on a question of law raised by a decision of the Environment Court. Before considering this you need to obtain legal advice.

You are able to seek a judicial review of a decision-making process by a local authority only if the option of an appeal under the RMA is not available. This is carried out through the High Court. Before considering this it is recommended you obtain legal advice.

3.5.9 Ongoing monitoring

Your environmental obligations do not end when you gain a resource consent. Remember, most consents are granted subject to certain conditions. These may require one-off actions such as landscaping a site's frontage or sealing a driveway. They may require an ongoing standard of performance. The consent may only be valid if you continue to comply with conditions relating to, for instance, noise emissions, the level of contaminants in discharges to air, and the maintenance of trees that screen your activity from neighbours.

To ensure you follow the terms of your consent, the consent authority may develop a programme to monitor the effects of your activity. The details of such programmes are normally included with the consent. The consent authority may carry out the monitoring itself, or require that you do so and supply it with the results. Either way, you are likely to incur the costs of such a programme. If the consent authority does the monitoring it is likely to charge an annual monitoring fee.

Programmes that establish a regular monitoring and reporting commitment are usually only developed if your activity has significant effects. Examples might include a discharge from a wastewater treatment plant into coastal waters, or smokestack emissions from a pulp and paper plant. In most other instances, your activities are only likely to be monitored occasionally, or in response to complaints from, for instance, neighbours. A common example would be the noise limits imposed on a small business in a quiet residential area.

By being aware of your ongoing obligations and ensuring you operate in a neighbourly and environmentally responsible way, you can minimise the likelihood of enforcement actions being taken against you (see Section 5 of this guide).

3.6 Other procedures

A number of other procedures differ from the standard resource consent process, and will be relevant in a relatively few, well-defined circumstances as outlined below.

3.6.1 Calling-in consent applications

The RMA provides for the Minister for the Environment to call-in applications for resource consent where these relate to a proposal of national significance. As with notified applications for resource consent, anyone may make a submission to the Minister, a hearing must be held, and appeals on the basis of the Minister's decision can be made to the Environment Court. Anyone can request the Minister to intervene in a matter of national significance. The Minister must consider the following when deciding what (if any) form of intervention is appropriate:

• the extent to which the matter is a proposal of national significance
• whether the local authority that would normally determine the matter has the capacity to do so
• the views of the local authority.

When exercising ministerial call-in powers, the Minister can either refer the case directly to the Environment Court or to a board of inquiry or intervene with a range of other options. When the matter relates solely to the coastal marine area, the Minister of Conservation has the power to call-in matters.

These provisions, to date, have been used only twice (in regard to the Taranaki Combined Cycle Power Station and for water allocation consents pertaining to the Waitaki River).

3.6.2 Coastal tendering

Land seaward of the mean high water springs mark and extending to the outer limit of the territorial sea is referred to as the coastal marine area (CMA) under the RMA (refer to Figure 2, page 17). Much of New Zealand's coastline is in an unaltered and natural state. However, there are a scattering of wharves, ports, marinas, marine farms, jetties and other permanent structures and reclamations located on the coast. The occupation of the coast by such structures tends to be exclusive - that is, other activities cannot use the area at the same time. Some parts of the coast are used as a source of sand, shingle and other construction materials.

The RMA sets up a coastal tendering mechanism to ensure that the Crown is adequately compensated for activities that involve extraction or exclusive occupation in the coastal marine area. The tendering process is in addition to, and a precursor to, the RMA's resource consent requirements.

Once a regional coastal plan is in place, the Governor-General, on the advice of the Minister of Conservation, can issue an Order-in-Council for a specific part of the coastline. This requires a regional council not to grant coastal permits until applicants obtain an exclusive right (known as an authorisation) to carry out particular activities. Where somebody wishes to occupy land in the coastal marine area for longer than six months, establish a sand or shingle mining operation, or reclaim or drain the foreshore or seabed, they must obtain an authorisation by public tender. Until such orders are made, applicants for coastal permits will not be required to hold any authorisations.

Once an Order-in-Council is in place, the Minister of Conservation can offer authorisations by public tender, or following public tender, by private treaty. These provisions have only been used once since the RMA was enacted.

Obtaining an authorisation does not in any way guarantee that a coastal permit will be granted by the regional council. You must obtain a coastal permit within two years, otherwise the authorisation will lapse.