To Notify on a Limited Basis or Not (Section 95B)?


STEP 1 - Are there certain affected persons/groups that are affected? (Section 95B(2))

If the council determines that certain people or groups are affected by the application, these persons must be given limited notification.

The first step in making a limited notification decision is to identify certain affected groups and affected persons, as follows:


Are there any affected Customary Rights Groups (s95B(2)(a))?


A council must decide, with reference to s95F whether a protected customary rights group is affected and whether the activity may have adverse effects on the rights the group has under the Marine and Coastal Area (Takutai Moana) Act 2011 (MCAA) unless the group has given written approval (and has not withdrawn it in writing before Council makes its decision).


Schedule 1 of the MCAA outlines what needs to be considered when deciding whether a protected customary rights group is affected by an application. It states that when deciding whether a consent application will, or is likely to, have an adverse effect on the exercise of a protected customary right, the following matters must be considered:

 

  • the effects of the proposed activity on a protected customary right; and
     
  • the area the application would have in common with the protected customary rights area; and
     
  • the degree to which the proposed activity must be carried out to the exclusion of other activities; and
     
  • the degree to which the exercise of a protected customary right must be carried out to the exclusion of other activities; and
     
  • whether an alternative location or method would avoid, remedy, or mitigate any adverse effects of the application on the exercise of the protected customary right; and
     
  • whether conditions could be included in a resource consent for the proposed activity that would avoid, remedy, or mitigate any adverse effects of the proposed activity on the exercise of the protected customary right.


If it is determined that there is a protected customary rights group affected, then the application must be considered on a limited notified basis, and the protected customary rights group must be served notice.


Are there any affected Customary Marine Title Groups (s95B(2)(b))?


The only activities requiring resource consent that may take place within a customary marine title area are those that the customary marine title group has approved, or accommodated activities. Accommodated activities are defined in the MCAA.

When a council is considering an application for an accommodated activity within a customary marine title area, they must decide whether the customary marine title group is affected (with reference to s95G) i.e. if the activity may have adverse effects on the exercise of the rights applying to the group, unless the group has given written approval. Section 60 of the MCAA outlines the rights of customary marine title groups.

In summary, these rights are the right to use, benefit from and develop a customary marine title area. Customary marine title groups are still required to apply for any relevant resource consents for activities they undertake within their title area.

If the council determines that there are affected customary marine title groups (for resource consent for an accommodated activity) then the application must proceed on a limited notified basis, and the customary marine title group(s) must be served notice.


Is the subject land subject to a statutory acknowledgement (s95B(3))?


If the council determines that the proposed activity is on or adjacent to, or may affect, land that is subject to a statutory acknowledgement, and then determines that the person to whom the statutory acknowledgement is made is an affected person, then the application must proceed on a limited notified basis and the person who is identified as being affected must be served notice (unless they have provided their written approval).

The council must have regard to every relevant statutory acknowledgement made in accordance with an Act specified in Schedule 11 of the RMA.

Are there certain affected groups and persons that must be notified?

 
If YES

NOTIFY THE APPLICATION TO EACH AFFECTED GROUP/PERSON AND PROCEED TO STEP 2

If NO PROCEED TO STEP 2

 

 

 

 



 

 

STEP 2 - Is limited notification precluded?

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


Rules in a plan or NES (S95B(6)(a))


Check the rules in the plan and any relevant national environmental standard to see if there are any relevant provisions that preclude limited 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 limited notification for all of the activities covered by the application. If this is the case, then the application cannot be limited notified unless special circumstances apply (step 4).


If the plan or NES does not preclude limited notification, or some but not all of the activities within the application are precluded from limited notification, then the next step is to check the activity status of the application.

 

Are all of the activities in the application subject to one or more rules or NES that preclude limited notification?

 
If YES

PROCEED TO STEP 4

If NO CONTINUE THROUGH STEP 2

 

 

 

 

 

 

Activity Assessment (s95B(6)(b)


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 limited notified unless special circumstances apply (see step 4).

Land use controlled activities (District Plan only)

If the application is for a land use activity with a controlled activity status under a district plan (other than subdivision of land), then the application cannot be limited notified unless special circumstances exist that warrant to limited notification of the application to any other persons (Step 4).

Is the application a district land use activity with a controlled activity status?
IF YES PROCEED TO STEP 4
IF NO CONTINUE THROUGH STEP 2

 

Are all of the activities in the application subject to one or more rules or NES that preclude limited notification?

 
If YES

PROCEED TO STEP 4

If NO

CONTINUE THROUGH STEP 2

 

 


 

 

 

 

 

 

 

 

 

Activities prescribed through regulations made under s360H(1)(a)(ii)

If the activity is prescribed through regulations made under s360H(1)(a)(ii), then the application cannot be limited notified unless there are special circumstances that warrant limited notification of the application to any persons other than those prescribed persons (Step 4). 

Is the activity prescribed by regulations to preclude limited notification?

 
If YES

PROCEED TO STEP 4

If NO

PROCEED TO STEP 3

 

 

 

 

 

 

STEP 3 - Are there other affected persons in accordance with s95E?

If the proposed activity is not precluded from limited notification under Step 2 above, subject to the eligibility clauses mentioned below, a person is an affected person if the council decides that the activity’s adverse effects on the person are minor or more than minor (but are not less than minor). Refer to guidance below. An affected person must be notified.


The eligibility clauses are in relation to:


• Boundary Activities (s95B(7)(a)
The definition of ‘boundary activity’ is noted above.   The owners (not the occupiers) of an allotment with an ‘infringed boundary’ are currently the only persons that are eligible to be considered as an affected person under section 95E (until any further activities are prescribed by the regulations, as described below). 

Whether they are considered to be affected persons in accordance with s95E (and served notice) or not, the council must then determine (under Step 4 below) whether there are any special circumstances that warrant the notification of the application to persons other than those with an ‘infringed boundary’.

 

For ‘Boundary Activities”, are the eligible persons affected?

 
If YES

 NOTIFY THE APPLICATION  TO ELIGIBLE AFFECTED PERSONS AND PROCEED TO STEP 4

If NO

PROCEED TO STEP 4

 

 

 

 

 


?
 

• Activities prescribed by regulations (s95B(7)(b))
Any regulations made under s360H(1)(b) will prescribe persons who are eligible to be considered an affected person in relation to particular activities.
For these prescribed activities, the prescribed persons are the only persons eligible to be considered as affected persons under s95E.  Whether the prescribed persons are determined to be an affected person (and served notice) or not,  the council must then determine (under Step 4 below) whether there are any special circumstances that warrant the notification of the application to persons other than those that are prescribed.

For prescribed activities, are the prescribed persons affected?

 
If YES

 NOTIFY THE APPLICATION TO PRESCRIBED AFFECTED PERSONS AND PROCEED TO STEP 4

If NO

PROCEED TO STEP 4

 

 

 

 

 

 

 

• Other activities (s95B(8))
If a proposed activity is not a boundary activity or an activity prescribed by regulations under s360H(1)(b), the council must determine whether there are any affected persons in respect of the activity in accordance with s95E, and serve notice on those persons who are determined to be affected.  If no persons are considered to be affected, the application can proceed on a non-notified basis.

Are there any other persons affected?

 
If YES

 NOTIFY THE APPLICATION TO AFFECTED PERSONS & PROCEED ON A LIMITED NOTIFIED BASIS

If NO

DO NOT NOTIFY APPLICATION TO ANY PERSON AND PROCEED ON A NON-NOTIFIED BASIS

 

 

 

 

 

 

 

Determination of whether a person is an affected person (s 95E)


Section 95E notes that the council can disregard only such adverse effects of the activity on a person if a rule or NES permits an activity with that effect (known as the permitted baseline - refer to guidance below). In the case of controlled or restricted discretionary activities, the council MUST disregard an adverse effect of the activity on a person where an effect does not relate to a matter over which a rule in a plan or NES reserves control or restricts discretion.


Potentially adversely affected persons may include:


• owners and occupiers of the land (an 'owner' includes any person who is a party to a current written sale and purchase agreement for the land [either conditional or unconditional], or a similar agreement to take a lease of the land). 

Note: If the activity is a ‘boundary activity’, the only persons eligible to be considered are the owners (not the occupiers/tenants) of adjoining properties with an ‘infringed boundary’.

• owners and occupiers of adjacent, nearby and/or downstream land

• tangata whenua

• downstream resource users

• any Minister of the Crown with statutory responsibilities for an area or a site that could be adversely affected

• the relevant district or regional council

• those persons or organisations whose use or enjoyment of an area could be adversely affected

• land owners/occupiers with sensitive activities (reverse sensitivity effects)

• any other person who the council considers is affected in a manner different from the public generally.


Just because some people and organisations may have an interest in a proposal, does not mean they may be affected. Some potential adverse effect, of at least a minor nature on a person, must be apparent in order for a person to be considered affected. Case law has shown that an affected person is one who is 'affected in a manner different from the public generally'. Being 'interested' in a manner different from the public generally has not been enough.


Adverse effects on persons are broadly conceived and are not limited to direct effects on those who own or occupy land. Persons can also be adversely affected in an environmental sense (i.e. indirectly by the proposed activity).


A person is not considered to be an affected person if—
• the person has given, and not withdrawn, written approval for the proposed activity in a written notice received by the council before it has decided whether there are any affected persons; or

• the council is satisfied that it is unreasonable in the circumstances for the applicant to seek the person’s written approval. Refer to guidance below regarding obtaining the written approval of affected persons.


If some affected persons or groups have not given their written approval, the council must notify the application on a limited basis by serving notice on all affected persons and groups who have not provided their written approval. Those who have given their written approval to the activity are not considered affected persons and need not be notified.


STEP 4 - Are there special circumstances to warrant limited notification of the application?

Special circumstances have been defined by case law (in the context of whether special circumstances exist to require the public notification of an application) as “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.” (Far North DC v Te Runanga-aiwi o Ngati Kahu [2013] NZCA 221).


If the proposed activity is precluded from limited notification under Step 2:


The preclusions outlined in Step 2 (i.e. if a rule in a plan or NES precludes limited notification or the proposal is a district land use controlled activity or a prescribed activity) are based on the assumption that the plan, NES or regulations (made under s360H(1)(b)) have anticipated that the adverse effects in relation to the activity are less than minor and therefore likely that no persons can be considered to be adversely affected by the proposal in a more than minor way. Step 4 requires that the council, before proceeding on a non-notified basis, consider whether the proposal actually fits within what the plan/NES or regulations anticipated, and if not, whether this is an unusual, abnormal or exceptional reason that any person should be notified of the application.


If the council has concluded that special circumstances do exist in relation to the application, that warrant notification to any persons (if those persons were precluded from being considered as affected parties), the council MUST serve notice to those persons.


If the council has concluded that there are no special circumstances that warrant the limited notification of the application, then the application can proceed on a non-notified basis.


If there are certain persons that are not eligible to be considered as affected under Step 3:


In the case of a boundary activity, even if the owner of an allotment with an infringed boundary is considered to be affected and served notice of the application, or has been deemed to not be an affected person (under Step 3), the council must make an assessment as to whether there are special circumstances that warrant the notification of the application to a person other than the owner of an allotment with an infringed boundary.


For an activity prescribed by regulations, whether the prescribed person in respect of the proposed activity has been deemed as not an affected person (and served notice) or not, under s95E (Step 3), the council must make an assessment as to whether there are special circumstances which warrant the notification of the application to persons other than those that are eligible (ie prescribed). 


If the council has concluded that special circumstances do exist in relation to the application that warrant notification to persons who were not eligible to be considered as affected persons under Step 2 or 3, the council MUST serve notice to those persons.


If the council has concluded that there are no special circumstances that warrant the limited notification of the application to any other persons, then the application can proceed on a non-notified basis.

 

Are there special circumstances that warrant notification to any persons to whom limited notification would otherwise not be eligible?

 
If YES

 NOTIFY THE APPLICATION TO EACH OF THOSE PERSONS (PROCEED ON A LIMITED NOTIFIED BASIS)

If NO

DO NOT NOTIFY THE APPLICATION TO ANY PERSON & PROCEED ON A NON-NOTIFIED BASIS