What is the permitted activity baseline? (permitted baseline test)
Sections 95D(b) and 95E(2)(a) provide that when determining the extent of the adverse effects of an activity or the effects on a person respectively, a council ‘may disregard an adverse effect if a rule or national environmental standard permits an activity with that effect’. This is known as the permitted activity baseline test.
The permitted activity baseline applies to consideration of both who is affected and whether effects are or are likely to be more than minor.
- If a council applies the permitted activity baseline, it is only the adverse effects over and above those forming a part of the baseline that are relevant when considering those two issues.
- It is the decision-maker’s discretion whether to use the permitted baseline as the basis for assessing effects and identifying affected parties (unless the application is for a controlled activity where s95E(2)(b) directs that the council MUST disregard an adverse effect of the activity on a person if the effect does not relate to a matter for which a rule or NES reserves control or restricts its discretion. Similarly for restricted discretionary activities, the council must, when determining the extent of the adverse effects, disregard any adverse effects that do not relate to matters for which the rule or NES restricts discretion).
The purpose of the permitted baseline test is to isolate and make effects of activities on the environment that are permitted by the plan or NES, irrelevant. When applying the permitted baseline such effects cannot then be taken into account when assessing the effects of a particular resource consent application. The baseline has been defined by case law as comprising non-fanciful (credible) activities that would be permitted as of right by the plan in question.
A permitted baseline analysis and an analysis of the receiving environment are two different assessments. The permitted baseline, which applies to permitted activities on the subject site, removes the effects of those activities from consideration under ss95D, 95E and 104(1)(a) of the RMA. The receiving environment is the environment upon which a proposed activity might have effects. It is permissible (and often desirable or necessary) to consider the future state of the environment upon which effects will occur, including:
- the future state of the environment as it might be modified by the utilisation of rights to carry out permitted activities
- the environment as it might be modified by implementing resource consents that have been granted at the time a particular application is considered, where it appears likely that those resource consents will be implemented.
- the environment as it might be modified by implementing future resource consent applications (because these are too speculative).
The 'environment' upon which effects should be assessed is therefore the existing and reasonably foreseeable future environment. In identifying the environment, a council should consider the environment as it is at the time of the application. It should also consider the likelihood of change to that environment in the future, based upon the activities that could be carried out as of right or with respect to resource consents that have been granted (where it is likely that they will be given effect to). Deemed permitted activities that have been given under section 87BB(d) or 87BA(2) will therefore likely need to be taken into account by decision makers in this manner under section 95D.
When applying the permitted baseline, a council should first ask what permitted activities would be credible (as opposed to fanciful).
Points to consider:
- Section 87A(1) states that an activity permitted by regulations (including any national environmental standard), a plan, or a proposed plan does not require a resource consent. Section 95D(b) and s95E(2) states that adverse effects can be disregarded if permitted by a national environmental standard or a rule. This refers to rules that have either taken legal effect in accordance with section 86B, or have become operative under section 86F
- 'Permitted by the plan' does not include controlled or restricted discretionary activities.
- In relation to marginal and temporary deemed permitted activities, these are determined on a case by case basis and are not an activity permitted by a rule. They will therefore not form part of the statutory permitted baseline under the RMA.
- Deemed permitted boundary activities (under s87BA) are not activities permitted by a rule (or NES) and therefore do not form part of the permitted baseline.
An activity that has been deemed a permitted activity by a consent authority under section 87BB(d) or permitted under section 87BA(2) will form part of the existing environment (which applies to the site and surrounding environment). There should be a clear determination in the report from the relevant council officer stating the reasons for applying or not applying the permitted baseline. As a matter of good practice all notification decisions should consider whether or not to apply the baseline.
Situations where applying the baseline may not be appropriate include:
- where the application of the baseline would be inconsistent with Part 2 of the RMA
- where the baseline claimed by the applicant is fanciful or not credible
- where the application of the baseline would be inconsistent with objectives and policies in the plan