Written Approval of Affected Persons

Introduction

A large number of subdivision applications are processed as "controlled activities" and these will not require the written approval of other persons (except in relation to easements over other properties). The Resource Management Act 1991 has a presumption in favour of notification unless the application is for a controlled activity, limited discretionary activity, or the Council is satisfied that the adverse effects will be minor.

However under section 94 of the Resource Management Act, where you are applying for consent for a discretionary or non-complying activity, this can be processed as a non-notified application where:

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

There are very limited circumstances where it might be unreasonable for an applicant to have to obtain the approval of every affected person. For example this would include where an affected person is overseas for an extended period or is without a reliable contact address. The Council is not allowed to take into account the adverse effects of the activity on any person who has provided their written approval under section 104(4) of the Resource Management Act 1991.

District Plan Rules

The District Plan provides the following as a guideline only to assist applicants and interested parties. It is not intended to limit the Council's discretion or responsibilities under section 94 of the Resource Management Act 1991.  If an applicant is unable to provide the written approvals of affected parties, an application may be notified

1. For Discretionary Activity applications seeking resource consent in respect of the following matters, applications will generally not be notified:

• minor additions or alterations to existing non-residential activities which do not significantly change the character or overall scale of the activity

2. For Discretionary Activity applications seeking resource consent in respect of the following matters, applications will generally not be notified if the written consents of the owners of adjoining sites are submitted:

• building height
• yards
• height in relation to boundaries
• privacy and amenity
• car parking and outdoor storage areas
• building development or design and location (Community, Working, and Transport Environments only)
• building coverage
• outdoor storage

3. For Discretionary activity applications seeking resource consent in respect of the following matters, applications may not be notified, if the written consents of affected persons are submitted:

• Residential activities/density
• building location natural landscape elements
• lines and pipes having an above ground length not exceeding 100m
• infrastructure not exceeding 3.0 metres in height or 20m² in above ground coverage
• odour, dust, vibration and lighting
• street trading

4. For Discretionary Activity applications seeking resource consent in respect of the following matters, applications will generally be notified:

• all Natural Areas Rules
• non-residential activities
• traffic generation
• noise
• subdivision
• heritage
• infrastructure not covered in (2) above
• air discharges, odour, dust, glare and vibration
• esplanade reserves
• contaminated sites and hazardous facilities
• signs
• any Discretionary Activity for Scheduled Sites
• any Discretionary Activity for Special Areas

5. Most non-complying activity resource consent applications will generally be notified.

Adverse effects

A person is deemed not to be affected if the activity is permitted or that person has given their written approval as an affected party.  In the case of controlled or limited discretionary activities, the person is not affected if the effects of the activity do no relate to a matter that the Council has identified in the District Plan, and that the Council has reserved its ability to control the identified effect.

In identifying affected persons, you must consider whether there is any adverse effect, including any minor effect, which may affect any person. Please note that adverse effects that will certainly be de minimis (that is, trivial - even less than minor), and those effects which are only a remote possibility (Bayley v Manukau City Council; Barrett v Wellington City Council [2000] NZRMA 481) should be identified but can be disregarded.  This case law should be read in the context that the Resource Management Amendment Act 2003 has changed many of the provisions that are the core of these decisions.

Potentially adversely affected persons (depending on the nature and scale of the resource consent application) may include the following:

• Owners and occupiers of the land
• Owners and occupiers of adjacent, nearby and/or downstream land
• Tangata whenua
• Environmental groups
• Community groups
• Any Minister of the Crown with statutory responsibilities for an area or a site that could be adversely affected (e.g. Department of Conservation)
• The Auckland Regional Council
• Those persons or organisations whose use or enjoyment of an area could be adversely affected
• Any other person who the Council considers relevant in the circumstances 

The approval of both the owners and the occupiers (should they be different) of the land identified as adversely affected are required. Remember to get the address, names and signatures of all occupiers and owners. Where the property is jointly owned, the approval of all owners or directors of a company are required or the signatures of trustees.

The Council has a form for applicants to use to obtain the written approval of affected persons. Requiring the affected persons to sign the proposed plans gives evidence that the affected persons have seen the plans. However it is not necessary to use the form if the affected persons give their written approval on the application plans, as long the plans detail what the affected person is consenting to. 

When approaching affected persons, the following information is useful:

• Description of the proposal
• Details of the reasons why a resource consent is required
• Copies of plans
• Your contact details should be provided, to enable any person or group to obtain any clarification or more information, or provide a response

Allow a reasonable time so that the parties fully understand the proposal. 

Once written approval has been provided, the following rules apply to the signatories

• That once the form has been signed the consent authority is no longer required to consider any effects on them (sections 104(4) of the Resource Management Act 1991)
• That by not making a submission, they surrender their right to appeal any decision should they be unhappy with it; and 
• That their written approval can be withdrawn at any time

If you obtain the written approval of persons or parties who the Council considers may be adversely affected by your proposal, there is a good chance that the application can be dealt with on a non-notified basis. If these approvals are not provided, this may mean that your application may be notified and affected parties, and the public in some cases, will be able to make submissions on the application.