To Publicly Notify or Not (Section 95A)

STEP 1 - Is public notification mandatory?

The very first step in making a notification decision is to ensure that the application is not mandatorily required to be publicly notified:

  • Has the applicant requested public notification?  If yes, the application MUST be publicly notified.
     
  • Has the applicant not provided within the applicable deadline, or refused to provide any further information requested under s92(1)? If yes, the application MUST be publicly notified.
     
  • Has the applicant not responded within the applicable deadline or refused to agree to the commissioning of a report under s92(2)?  If yes, the application MUST be publicly notified.
     
  • Has the application been made jointly with an application to exchange recreation reserve land (under s 15AA of the Reserves Act)?  If yes, the application MUST be publicly notified.
     

Is public notification mandatory?

 
If YES PUBLICLY NOTIFY APPLICATION
If NO PROCEED TO STEP 2

 

 

 

 

STEP 2 - Is public notification precluded/waived?

For any applications that are not publicly notified under Step 1, then the next step in making a notification decision is to check whether public notification is precluded (ie not required). The criteria outlining which circumstances preclude public notification are as follows:

Rules in a plan or National Environmental Standard (NES) (s95A(5)(a))

Check the rules in the plan and any relevant national environmental standard to see if there are any relevant provisions that preclude notification for the activity or activities being applied for.

There must be a rule(s) in a plan or a national environmental standard that waives or precludes public notification for all of the activities covered by the application. If this is the case, then the application cannot be publicly notified unless special circumstances apply (step 4).

If the plan or national environmental standard does not preclude notification of all of the activities covered by the application, then the next step is to check the status of the activities in the application.

Do rules in a Plan or NES preclude public notification for all activities in application?

 
If YES PROCEED TO STEP 4
If NO CONTINUE THROUGH STEP 2

 

 

 

 

 

 Activity Assessment (s95A(5)(b)(i)-(iv))

Determine whether an application is for one or more of the activities set out below (but no other activities). 

If the answer is ‘yes’, the application cannot be publicly notified unless special circumstances apply (see step 4).

 

Controlled Activities

 If the application is for a controlled activity under either a district or regional plan, or as a result of a national environmental standard.

 

Subdivision of land (Restricted Discretionary/Discretionary Activities)

 If the application is for a restricted discretionary or discretionary activity for the subdivision of land. (Note that: subdivision that is a controlled activity is precluded from public notification under the ‘controlled activity’ category; and that this preclusion applies to the subdivision of any land, not just that which is, for example, zoned for residential or commercial development).

 

Residential activity (for Restricted Discretionary/Discretionary Activities)

 If the application is for a restricted discretionary, or discretionary activity for a ‘residential activity’ (as defined in s95A(6). Note that controlled activities that would otherwise fall within the definition of a residential activity are already precluded from public notification under the ‘controlled activity’ category.

 

Boundary Activities (Restricted Discretionary/Discretionary/Non-complying Activities)

 If the application is for a restricted discretionary, discretionary or non-complying ‘boundary activity’ (as defined under s87AAB). (Note that boundary activities with a controlled activity status are precluded from public notification under the ‘controlled activity’ category.)

 

Activities prescribed through regulations

 If the application is for an activity prescribed through regulations made under s360H(1)(a)(i).

If an application includes multiple activities and they are to be considered as a bundle, public notification is only precluded under this step if each individual activity is precluded from public notification by virtue of falling within the scope of the categories noted above.

 

Is public notification precluded/waived for all activities in the application by virtue of their activity type or status?

 
If YES PROCEED TO STEP 4
If NO PROCEED TO STEP 3

 

 

 

 

STEP 3 - Is public notification required?  (s95A(8))

 

If the application is not precluded from public notification in Step 2 above, then public notification may be required if the following apply:

Does a rule in a plan or NES require public notification (s95A(8)(a))?

If a rule in a plan or national environmental standard requires public notification (and is not precluded for reasons noted above), then the application MUST be publicly notified.

If an application is for multiple activities, public notification is required for the whole application if any part of the application requires notification by a rule in a plan or NES.

 

Is any activity in the application subject to a rule or NES that requires public notification?

 
If YES PUBLICLY NOTIFY APPLICATION
If NO

CONTINUE THROUGH STEP 3

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Are the adverse effects on the environment more than minor (s95A(8)(b)?

When the rules in the plan or NES are silent as to public notification, the council needs to assess whether the activity will have or is likely to have adverse effects on the environment that are more than minor in accordance with s95D. If the adverse effects of the activity will be or are likely to be more than minor then the application will need to be publicly notified.

The assessment of whether an effect is more than minor is one of fact and degree. It requires exercising discretion as to the degree of seriousness involved. A minor effect is at the lower end of a scale that includes major, moderate and minor effects, but it must be something more than de minimis.

A council cannot take into account positive effects from the proposal when considering whether the effects will be minor or more than minor. It can, however, have regard to any mitigating factors that would eliminate any cause for concern about the possibility of adverse effects, such as extra noise being nullified by additional sound proofing. This can include the consideration of prospective conditions of consent to mitigate effects of the activity which are inherent in the application.

The council is not entitled to consider the effects of one activity in isolation where other activities are part of the application. A proposal can only be split into separate activities in the limited circumstances mentioned in the guidance related to bundled consents earlier.

The council should look at the overall combined effects of the proposal on the broader environment. It is possible that the council may consider there are more than minor effects on one neighbour, but in the context of the wider environment those effects are still no more than minor. In such a case, the application might only be limited notified to the affected neighbour (if limited notification is not precluded after following the steps in s95B).

There is a clear distinction in the RMA between localised effects and effects on the wider environment. Section 95D(a) requires that when deciding if the effects will have or are likely to have adverse effects on the environment that are more than minor for the purposes of public notification, the adverse effects of an activity on the following persons must be disregarded:

  • the owners and occupiers of the land on which the activity will occur; or
  • the owners and occupiers of any land adjacent to that land.

This means that an assessment needs to be made by the council as to which properties are considered to be adjacent to the activity or land use. The term adjacent has a common meaning which is “close to, but not necessarily adjoining another site”. The term adjacent has also been defined by the Courts as lying near or close; adjoining; continuous; bordering; not necessarily touching”.

When assessing whether an activity will have or is likely to have adverse effects on the environment that are more than minor, regard needs to be had to the following:

  1. the cumulative nature of any effect over time, or in combination with other effects
  2. the probability of occurrence
  3. temporary effects, including adverse effects associated with construction work
  4. the scale and consequences of the effect (high potential impact?)
  5. the duration of the effect
  6. the frequency or timing of any effect
  7. whether the effect relates to a s6 or s7 matter
  8. the area affected (eg, is it an effect on neighbours or the wider environment?)
  9. the sensitivity of surrounding uses to that effect
  10. reverse sensitivity issues
  11. whether the effect is to be mitigated or avoided by a condition contained in the application or offered by the applicant in the application, which the applicant has agreed to.

The council may disregard an adverse effect permitted by a rule or national environmental standard (refer to permitted baseline test section later in this guidance note.

The following matters should not be considered by the council when assessing whether effects are more than minor:

  • the precedent effect of granting consent
  • effects that are outside the council’s discretion or control (restricted discretionary and controlled activities and NES)
  • trade competition and the effects of trade competition
  • any effect on a person who has given written approval.

 

Are the adverse effects on the environment more than minor (in accordance with s95D)?

 
If YES PUBLICLY NOTIFY APPLICATION
If NO

PROCEED TO STEP 4

 

 

 

 

 

 

STEP 4 - Are there special circumstances to warrant public notification?

 

If the application has not been publicly notified as a result of any of the previous steps, then consideration must be given to whether or not special circumstances exist, that warrant the public notification of the application.  If special circumstances do exist, then the council must publicly notify the application.

Case law is settled on the application of the special circumstances test with the authority being Far North DC v Te Runanga-a-iwi o Ngati Kahu [2013] NZCA 221: 

[36]…A “special circumstance” is something, as White J accepted, outside the common run of things which is exceptional, abnormal or unusual but less than extraordinary or unique. A special circumstance would be one which makes notification desirable despite the general provisions excluding the need for notification. As Elias J noted in Murray v Whakatane District Council: ... the policy evident in those subsections seems to be based upon an assumption that the consent authority does not require the additional information which notification may provide because the principles to be applied in the decision are clear and non-contentious (as they will generally be if settled by district plan) or the adverse effects are minor. Where a consent does not fit within that general policy, it may be seen to be unusual.

[37] In order to invoke s 94C(2), the special circumstance must relate to the subject application. The local authority has to be satisfied that public notification, as opposed to limited notification to a party or parties, may elicit additional information bearing upon the non-complying aspects of the application.

 

The purpose of considering special circumstances is to look at matters that are beyond the plan itself. The fact that a large development is proposed is probably not sufficient to constitute special circumstances. Refer to the Ministry of the Environment’s technical guidance on the notification provisions of RLAA17 for further discussion regarding special circumstances.

 

Are there special circumstances that warrant public notification of the application?

 
If YES PUBLICLY NOTIFY APPLICATION
If NO

DETERMINE WHETHER APPLICATION NEEDS TO BE LIMITED NOTIFIED IN ACCORDANCE WITH s95B