Section 104(3)(d)

Section 104(3)(d) provides that a council must not grant consent to an application that should have been publicly notified and was not. 

In Fullers Group Ltd v Auckland Regional Council [1999] NZRMA 439 (Court of Appeal), the Court of Appeal held that when a council is deciding whether to grant consent, it is not under any duty to consider whether the application should have been notified, if that notification decision was considered at any earlier stage. 

Nevertheless, a submitter on a limited notified application may be entitled to argue in their submission, and at the council hearing and/or on any subsequent appeal, that the application should have been publicly notified. (Note: a submitter may only appeal in respect of the matter raised in their submission to the consent authority, and only if the proposal is not a boundary activity (defined in s87AAB), a subdivision consent or a residential activity (defined in s 95A(6)). If the council or Court agrees, it appears they would have no choice but to decline consent in terms of s104(3)(d). 

It is also possible to re-notify an application if a notification decision has been made but further information requires this decision to be changed.