To Bundle or Not to Bundle? (Separate Activities or Holistic Assessment?)

It is common practice for an application to be prepared on the basis of a proposed development which often involves numerous activities for resource consent. This approach is both efficient and enables proposals to be comprehensively considered, ensuring that all of the effects of a proposal are identified and adequately assessed, for the purposes of making both the notification and substantive decisions on the application.

However, an applicant is also entitled to apply for consents in separate applications. However, splitting the proposal into its separate applications for the purposes of notification could mean that the council fails to look at a proposal in whole. In circumstances where there are multiple applications, the council therefore has two interrelated decisions to make.

Firstly, the council must determine whether all necessary consent applications have been lodged prior to making the notification decision. In some circumstances, a council may determine not to proceed with their notification decision until other related applications (that will help with a better understanding of the proposal as a whole) are made (s91). This may include consent applications that need to be processed by other consent authorities.

Secondly, the council also has to decide whether to treat a proposal as a number of separate activities or as one overall activity (a ‘bundle’). For example, should an application for earthworks be treated separately from a concurrent application to construct and/or use a building? Bundling resource consent activities is generally considered appropriate where the activities for which consents are being sought overlap to such an extent that they cannot be realistically or properly separated. If the decision is made that separate applications should be bundled, they are assessed together as a whole, on the basis of the most stringent activity classification.

Exceptions to the general bundling rule noted above are where separate but concurrent consents have been sought; and (a) one of the consents sought is a controlled or restricted discretionary activity; and (b) the scope of the council’s control or discretion in respect of one of the consents is relatively confined; and (c) the effects of exercising the two consents would not overlap, impact or have flow-on effects on each other (Southpark Corporation Ltd v Auckland City Council [2001] NZRMA 350 (EnvC) at para [15].)

The decision on whether to bundle separate consents together also has implications for the way in which the preclusions on / requirements for, notification apply under the new step by step notification process. This is explained further below, but in brief (and subject to the steps being worked through in a sequential way):

  • all of the activities in a bundle of applications must fall within the scope of a given preclusion in order for the preclusion on notification to apply, and
  • conversely, only one of the activities within a bundle of applications needs to fall within the scope of a mandatory notification requirement in order for the whole of the bundle to require notification