Why do I need to get a resource consent?
The Resource Management Act 1991 (RMA) requires that regional and district councils administer the use, development or protection of natural and physical resources so they are sustainably managed.
One of the key ways the RMA seeks to promote sustainable management is to ensure all the effects of a proposal, both positive and negative, are considered before an activity is allowed to happen. This means that any potentially adverse effects can be controlled; if they can't be controlled, serious consideration can be given as to whether the activity should be allowed.
Who is responsible for deciding if an activity can be undertaken?
Regional councils, district councils and unitary authorities are required to produce plans setting out how resources (water, air, land and the coast) can be used. The plans show the resources that need to be protected within your community and the rules with which you need to comply before resources can be used. They also give guidance on how nuisances, such as noise and odour, need to be controlled. These plans also set out whether resource consent is required for a particular activity or whether it is permitted to be carried out without resource consent.
Regional councils are generally responsible for consents relating to discharges (air and water) and activities that occur below the mean high water springs mark. District councils are generally responsible for consents relating to land, including subdivision. Unitary councils carry out both district and regional council functions. In some cases, you will need a consent from both a regional and district council. For example, the regional council may control large areas of earthworks so it can assess the pollution effects caused by runoff. Meanwhile, the district council may want to assess the same work for how it will look once the excavation is complete, or perhaps because some trees need protecting.
Where consents are required by more than one council, discuss your applications with both councils as early as possible. In some cases, they may prefer to consider the applications together.
What sort of consent do I need?
There are six types of consent categories and these are generally ranked according to the expected effects they might have. The categories are:
- Permitted - permitted activities are allowed 'as of right' subject to complying with any conditions set out in the plan. A permitted activity is the only category that does not require you to apply for resource consent.
- Controlled - a council must grant consent if you apply for a controlled activity unless it has insufficient information to determine whether or not the activity is a controlled activity. The council may grant consent subject to conditions that must be complied with. These conditions may only be imposed when they relate to matters specified in the plan.
- Restricted discretionary (also known as limited discretionary) - a council may grant or decline consent for a restricted discretionary activity. If granted, conditions may only relate to matters specified in the plan.
- Discretionary (also known as unrestricted discretionary) - a council can grant or decline an application for a discretionary activity. If granted, it can impose conditions in relation to any matter that helps to control any of the activity's potential adverse effects.
- Non-complying - a council can only grant an application for a non-complying activity if its adverse effects are minor, or if it is consistent with the plan's objectives and policies. If it grants consent, the council can impose conditions in relation to any matter that helps to control the activity's potential adverse effects.
- Prohibited - you cannot apply for a resource consent for a prohibited activity.
There is one other type of activity: a restricted coastal activity, which is either a discretionary or non-complying activity that is listed in a regional coastal plan as a restricted coastal activity. The Minister of Conservation issues consent for these activities.
Why is the status of the activity important?
Knowing the status of an activity and the type of the consent required is a critical step in determining the effects of an activity and, therefore, the basis of the AEE.
The activity's status should give you an indication of what needs to go into the AEE:
- controlled or restricted discretionary applications - by stating the area of discretion, the council's plan also states the effects it is concerned about. Your AEE need only address these effects
- discretionary or non-complying activities - for these activities, your AEE may need to be more substantial. This is because all your activity's environmental effects (not just those stated in the plan) determine the degree of impact, and hence the comprehensiveness of your AEE.
If your activity is non-complying, it is worth establishing why. It may have been predetermined as likely to have a significant impact, or the council may simply have not anticipated it. In this case, even though the activity is non-complying, its effects may still be minor. This may make a difference to the level of AEE required.
When do I apply for a resource consent?
If you need a resource consent, you must obtain it before undertaking your proposal. If you start before consent is granted, you risk prosecution.
How is a resource consent processed?
Once lodged, your application may be processed as 'notified', 'limited notified' or 'non-notified'. Which one of these categories your application will be processed as will depend on the following:
- the type of resource consent you require
- whether the effects are more than minor (automatically notified)
- whether you have written approvals of affected persons
- what the plan says about the notification of your proposed activity.
The timeframe for processing and the costs will vary depending on the path that the consent takes. The preparation of the AEE will help determine this path. If the path the consent is likely to take is critical to your project, and you want the application to be processed without notice, you will need to factor this into the proposal so the proposal's effects (as recorded in the AEE) are minor.
This will also apply if you do not wish to obtain written approvals from affected persons. In this case, you will need to design the proposal so there are no adverse effects.
What are the consequences of not including an AEE, or of including an inadequate one?
The council will not accept your application unless it is accompanied by an AEE.
An inadequate AEE:
- could create the need for changes to your proposal
- could increase processing costs
- could potentially cause delays as the council may put the application 'on hold' and request further information. In this case, you must either provide the information or write to the council agreeing or refusing to provide the information, within 15 working days of the date of the request
- increases the chance of the application being notified or requiring written approvals from affected persons as the council cannot confirm the effects are minor and people may or may not be adversely affected
- reduces the chance of the council granting consent.
Figure 1: Processing resource consents - stages and timeframes
1. Council may return the application if the AEE is incomplete or if there is insufficient information required by regulations (s.88(3)).
2. An applicant who received a request for further information must, within 15 working days of the date of request, either provide the information, or tell the council in writing that they either agree or refuse to provide the information. If they agree to provide the information, the council will let them know a reasonable timeframe within which they will have to provide the information. However, if the applicant does not object to, or subsequently appeal against the request for further information, they must provide the information no later than 10 working days before the hearing of an application (ss.92 and 92A).
Textual description of Figure 1
This flow chart identifies the key stages and timeframes in the resource consent process.
The most common path, followed by approximately 95 percent of resource consent applications, begins when an application is submitted to the council under section 88 of the Resource Management Act 1991. If assessment of environmental effects that accompanies the application is incomplete or has insufficient information, the council may return the application.
The council then has ten working days to determine if the application for resource consent is to be notified to the public under sections 93 and 94 of the Resource Management Act. If the application is not notified, the council then has 20 working days to make a decision on the application under section 105 of the Resource Management Act. If a party is unhappy with the decision there is a 15 working day appeal period, followed by possible appeal to the High Court under section 287 of the Resource Management Act.
A less common path, followed by approximately five percent of resource consent applications, also begins when an application is submitted to the council. The council then assesses the application for completeness and has ten working days to determine if the application for resource consent is to be notified to the public under sections 93 and 94 of the Resource Management Act.
If the application for resource consent is notified to the public, a twenty day submission period follows. Submissions are received during the ten working day period under section 96 of the Resource Management Act. A council hearing (under section 101 of the Resource Management Act) will start within 25 working days of the closing of submissions. The council then has 15 working days to make a decision on the application under section 105 of the Resource Management Act. Appeal rights follow as with the most common path.
An occasional path can include a request for further information after the application is submitted to the council. An applicant who receives a request for further information must, within 15 working days of the date of request, either provide the information, or tell the council in writing that they either agree or refuse to provide the information. If they agree to provide the information, the council will let them know a reasonable timeframe within which they will have to provide the information. However, if the applicant does not object to, or subsequently appeal against the request for information, they must provide the information no later than 10 working days before the hearing of an application (sections 92 and 92A). A right of objection to the request for further information exists under section 357 of the Resource Management Act.
Further information may also be requested at the submissions stage of a notified application for resource consent, or after the council has made a decision that the application need not be publicly notified.
In some occasions, a council hearing may be held for applications for resource consent that were not publicly notified.
Pre-hearing meetings or mediation may be held prior to any council hearing under sections 99 and 99A of the Resource Management Act.