Unreasonable in the circumstances
A person must not be treated as being adversely affected if it would be unreasonable in the circumstances to seek the written approval of that person (s95E(3)(b)). The courts have made no significant comment on when it might be unreasonable to require an applicant to obtain the written approval of all affected persons.
The provision is not intended to authorise the ignoring of people who 'unreasonably' withhold their approval or refuse to participate. It applies where affected persons are not easily contactable or available and do not have an agent who may act on their behalf. Both the applicant and the council need to have made an effort to contact the affected persons and that needs to be documented. Councils should be conservative when using this test as it has implications for public participation in the resource consent process.
Persons who are unavailable will not need to be served with notice of an application. Furthermore, if they are the only persons who would otherwise be affected, or if all other affected persons have given their approvals, the application can be dealt with as if their written approval had been given.
Obtaining the written approval of affected persons
The responsibility for obtaining the written approval of affected persons lies with the applicant, not with the council. Nevertheless, it is the council's responsibility to determine who it considers to be affected and to determine whether all such persons have given their written approvals.
The council is not expected to investigate the written approvals it receives. However, if the approval does not explicitly state what the applicant is applying for and therefore what is being agreed to, then the council has a duty to ascertain what has been approved of and what has not.
As there is no need to serve notice on persons who have given their written approval to a limited notified application, councils need to be vigilant in ensuring that any changes to the application and/or plans throughout the consent process are communicated to those who provided their written approval. This is especially important given there is the ability for written approvals to be withdrawn. Council officers should assure themselves that any written approvals provided relate to the proposal under consideration. Should any significant changes be made to the proposal then generally new written approvals are required.
Form 8A of the Resource Management (Forms, Fees and Procedures) Regulations 2003 specifies the prescribed form for an affected persons written approval to an activity that is the subject of a resource consent application. It should be noted that there is a different written approval form for neighbours with an infringed boundary (Form 8B) with respect to applications for deemed permitted boundary activities (refer to MfE technical guide to deemed permitted activities for further information).
The following list provides the information requirements for written approvals as required by Form 8A:
- the name of the council to which the application is being made
- the full name of the person giving written approval and contact details (address for service)
- a statement that they are the owner or occupier of the affected property and/or whether they have the authority to sign on behalf of other owners/occupiers of the property
- the proposal for which they are giving approval
- a statement that the affected party has read the full application for resource consent, the Assessment of Environmental Effects, and any site plans (and lists these documents)
- a statement that once the form has been signed the council is no longer entitled to consider any effects on them when deciding the application
- that their written approval can be withdrawn before the date of a hearing if there is one, or if there is not, any time before the consent is granted
- that the affected party has signed and dated the applicant's proposed plans and assessment of environmental effects (AEE).
Signing the actual proposed plans and AEE is important, as sometimes an approval may relate to an earlier version of an application (as outlined above) or to plans that may not have been disclosed to the person. It is also important the signed plans relate to all aspects of the development which require consent, not just the non-compliances on that neighbour's boundary.
Consider using an aerial photograph to identify the site and properties of potentially affected parties.
Checking affected person’s approvals
It is important to ensure that the written approvals supplied with an application for resource consent (whether they are on a standard form or not) are complete and adequate.
Check the following:
- Has the form been signed and dated?
- Have all relevant plans, and in most cases the AEE, been signed and dated?
- Are they the same plans and information that is now before the council, i.e. current versions?
- If the application is amended in any way, check that the affected person(s) know and approve of the amendments.
- Are the approvals from the correct people (i.e. registered landowner(s), all landowners or occupiers if there is more than one registered on the title (computer register)). Are they signed by or on behalf of other owners and/or occupiers with their authority? For example, if a property is jointly owned, have both owners signed or the second owner confirmed that the first is signing on his/her behalf?
- Have all trustees signed or have authority to sign on the others’ behalf?
- Are the approvals unconditional? Conditional approvals should not be accepted. There is no onus on a council to ensure the demands or 'conditions' of an affected person are satisfied. This is the responsibility of the applicant. The proposal should have been amended by the applicant to reflect any agreed changes.
- Has the approval been withdrawn? Note that lodging a submission does not have the effect of automatically withdrawing that party's approval, unless it specifically says that.
Where there are a number of affected persons, it may help to create a checklist to tick off (for each affected person) whether they are the owner or occupier, or both, whether they signed the plans/AEE, and whether their written approval has been obtained. This information can also be transferred into the decision report.