Matters to be Considered - Section 104

Section 104 of the RMA sets out the principal matters, subject to Part 2, which all those involved in a resource consent application (both applicant, council and interested parties). The applicant must address these matters in their application and a council must have regard to (and other matters it must disregard) when considering an application for resource consent and any submissions received.

Matters to be considered include:

  • any measure proposed or agreed to by the applicant for the purpose of ensuring positive effects on the environment to offset or compensate for any adverse effects on the environment that will or may result from allowing the activity
  • any actual and potential effects on the environment
  • any relevant provisions of a national environmental standard, other regulations, a national policy statement, a New Zealand coastal policy statement
  • any relevant provisions of an operative or proposed regional policy statement or any proposed or operative plan
  • any other matter the council considers relevant and reasonably necessary to determine the application
  • the value of the investment of the existing consent holder when considering an application affected by s124 (exercise of resource consent while applying for new consent).

A council may disregard an adverse effect of an activity on the environment if the plan or a national environmental standard permits an activity with that effect (s104(2)) and this needs to be identified by the applicant.

Section 104(3) sets out what the council must not do when considering an application:

  • have regard to trade competition or the effects of trade competition
  • have regard to any effect on a person who has given written approval to the application, unless the approval is withdrawn in writing before the hearing or determination of the application
  • grant a consent contrary to the provisions of any of the following:
    • s107 (restriction on grant of certain discharge permits)
    • s107A (restrictions on grant of resource consents)
    • s217 (effect of water conservation order)
    • an Order in Council in force under s152
    • any regulations
    • wāhi tapu conditions included in a customary marine title order or agreement
    • s55(2) of the Marine and Coastal Area (Takutai Moana) Act 2011.
  • grant a consent if the application should have been notified and was not.

Also, councils must not grant consent for a prohibited activity or a subdivision consent where the circumstances set out in s106 cannot be reconciled.

Councils may decline an application on the grounds it has inadequate information to determine the application (s104(6)). When making an assessment on the adequacy of the information, a council must have regard to whether any further information or report(s) requested were provided by the applicant and provide commentary and reasoning for its decision.

Case law has determined that subject to Part 2 of the RMA, s104(1) does not elevate any of the matters in s104(1) to a primary status, however matters can be given weight as the council sees fit in the circumstances.