Assessing Non-notified Subdivision Consent Applications

Assessment of the proposal

Once your subdivision application has been received by the Council:

• It will be allocated to a Resource Planner who will manage the assessment
• You will receive a letter formally accepting the application, and giving contact details for the Resource Planner
• Your proposal will be given a comprehensive review and will be checked against the District Plan rules, given a preliminary assessment by stormwater engineers, traffic and roading engineers, an arborist (if required) and other specialists.
• A site visit will be undertaken
• The application will be considered and the information provided audited by Council  - if the application does not have a thorough assessment of environmental effects or the information is incomplete, the application may be rejected within 5 working days of lodgement.  If this occurs, the Council will provide the applicant with written reasons for rejecting the application (refer to section 88(3) of the Resource Management Amendment Act 2003).  The lodgement fee (minus any costs incurred by the council) will be retained by the Council and credited to the revised application when it is lodged.  If no revised application is lodged within eight weeks of the date of rejection, the remainder of the fee will be refunded.
• The Council will check to see if anyone is potentially adversely affected by the proposal in terms of the requirements of section 94 Resource Management Act 1991. The Council is preparing a Plan Change to clarify that neighbours approvals are not required for limited discretionary applications.  The Resource Management Amendment Act 2003 states that a person is not adversely affected for controlled activities.
• In the case of a discretionary or non-complying activity, the Resource Planner will assess these applications and prepare a report and make a recommendation under section 94 of the Resource Management Act 1991 about whether the application should be processed as notified or non-notified. The Manager Resource Consents and Team Leaders currently have delegated authority to make this decision.
• The Resource Planner will prepare a separate report and recommendation under sections 104 and 108 of the Resource Management Act. The Manager Resource Consents and Team Leaders have delegated authority to make the decision about whether to grant or decline the application.
• The decision will be sent out to the applicant or their representative
• You as an applicant have the right of objection to Council or appeal to the Environment Court on parts of or the whole of the decision

Non-notified timeframe

The Council recognises that the time taken to process an application is important to you. Delays are usually caused when the Council receives insufficient and/or incorrect information. This then means that the Council is unable to fully process the application. The better the information provided with the initial application, the easier it is to process.

• Non-notified resource consent applications are normally processed within three to four weeks once sufficient information is received
• Applications cannot be processed until the Council has received all the information it requires 

There is no penalty in the Resource Management Act 1991 for failing to adhere to time limits; but the onus is on the Council to ensure that time limits are met. There is also a requirement under section 21 of the Resource Management Act 1991 to avoid unreasonable delay. 

The Resource Management Act 1991 indicates the following relevant timeframes:

1. The date the application was received - this represents the start of the processing clock. The 20 working days for non-notified applications start from the date the application was received. A 'working day' is defined in the Resource Management Act 1991 as, 'any day except a Saturday, a Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign's birthday and Waitangi Day and a day in the period commencing with the 20th day of December in any year and ending with the 15th day of January in the following year.'
2. The application is put on hold when additional information is requested under section 92. The Resource Management Amendment Act 2003 requires that the clock be stopped while the Council awaits the additional information, and the clock will re-commence as soon as that information is received.
3. Generally requests for additional information are sent out within 10 to 12 working days of the application being received.
4. Under section 37 Resource Management Act 1991 Council has the right to extend the 20 working day processing period if required or waive a failure to comply with a requirement for the time period.

Decision on notification

Request for additional information

Under Section 92 of the Resource Management Act the Council is able to request additional information from the applicant to enable it to better understand:

• The nature of the activity
• The effect(s) of the proposed activity on the environment; or 
• The ways any adverse effects may be mitigated 

When you receive an additional information request the processing of your application is put on-hold until the requested information is provided. Please contact the Resource Planner if you are not certain what information is being required.

Applicants have the right of objection to any request for further information under section 357 of the Resource Management Act 1991 and applicants may also appeal the decision such an objection to the Environment Court.

Determination as to whether the application is non-notified or publicly notified

Sections 93 and 94 of the Resource Management Act set out the requirements for notification and non-notification. The presumption is that an application will be notified unless the application is for a controlled activity or the Council is satisfied that the adverse environmental effects of the activity will be minor.

The District Plan indicates that applications for controlled or limited discretionary activities can be processed on a non-notified basis without the written approvals of affected persons. The Council is preparing a Plan Change to ensure that the District Plan is consistent with the Resource Management Amendment Act 2003.  This Plan Change will ensure that limited discretionary activities will be processed on a non-notified basis, without written approvals of affected parties.  Controlled and limited discretionary applications are relatively straightforward, simple and inexpensive to process.

Discretionary or non-complying activities can be assessed without notification where:

• The Council is satisfied that the adverse environmental effects of an activity will be minor; and 
• The written approval of every person potentially affected (in the opinion of the Council) has been obtained, unless it is unreasonable in the circumstances to obtain every written approval

Those limited circumstances where it might be unreasonable for an applicant to have to obtain the approval of every affected person would include situations where an affected person is overseas without a reliable contact address. Remember that the Council, in determining whether or not the adverse effects on the environment of an activity will be minor, is not allowed to take into account the effects of the activity on any person who has provided their written approval. 

Even if an application fulfils the criteria for non-notification in section 94 of the Resource Management Act, the Council may still require the application to be notified if it considers there are special circumstances under section 94C(2).

If you are interested in the complex case law on non-notification versus notification the following cases may be of some assistance.  however, you should take into account that the Resource Management Amendment Act 2003 has changed many of the provisions relating to notification.

• Bayley v Manukau City Council 
• King v Auckland City Council 
• Barrett v Wellington City Council
• Murray v Whakatane District Council 

In the case of discretionary or non-complying activities Council's Resource Planner will assess your application under the requirements of section 94. This assessment will firstly,  determine whether or not the adverse effects are minor or are more than minor, secondly determine if the applicant has provided all the required affected persons approvals. 

If an adverse effect is regarded as minor in terms of section 94A there will need to be a further assessment as to who may be adversely affected under section 94B. That means that the Council will request that the applicant provide all affected parties approval.  If the effects are 'minor' or 'more than minor' and all affected parties do not give their approval, then it is likely that the Council's decision will be to notify the application. 

The decision whether or not to notify an application is generally made under delegation by the Manager Resource Consents or Team Leaders. Note where the Resource Planner is recommending that the application be processed as a non-notified application, the decision on notification and the decision to approve or decline the application are made together in a single report. 

The Council will decide whether or not to publicly notify the application or process it as a limited notification application.  This will mean that only affected parties will receive notice of the application in accordance with the Resource Management Amendment Act 2003.  The is means that even if some affected parties have already given their written approval to a proposal, they may be notified of the application and given the opportunity to make a submission.

If an application is publicly notified, any member of the public may make a submission on an application. The Council has standard forms to assist the public to make their submission. The submission period lasts for 20 working days from the date that an application is notified. All publicly notified resource consent applications appear in the Public Notices section of the New Zealand Herald. Neighbours and others in the vicinity of the location of the application (that is those who are considered to be most affected) may be notified directly via a letter from the Council. 

Resource Planner Report

Once it has been determined that your subdivision application will be non-notified, the second stage of the assessment is completed. This assessment has regard to subdivision sections and sections 104, 106 and 108 of the Resource Management Act 1991. The report covers the following general areas:

• Identification and assessment of the effects - consideration of the mitigation proposals in the application
• Assessment under the Resource Management Act 1991 in relation to Section 104, 106 and Part II matters
• Statutory documents 
• Related matters (for example the Auckland Regional Policy Statement and the Proposed Air, Land and Water Plan)
• Recommendation in terms of the decision (approved or declined) and conditions of consent
• Duration of the consent if it is to be more than the standard five (5) year period

Note: If the Resource Planner is recommending that consent for your application is declined you have the following options:

• Amend the proposal to address the issues identified by the Resource Planner
• Provide further information or assessments that may change the Resource Planner's recommendation on the proposal
• Request a hearing before the Council's Hearings Committee of planning commissioners (see the notified process for setting a hearing and your rights). This way you get the opportunity to present your case and the Hearings Committee will make the decision based on the Resource Planner's report and information that you have provided.