Sections 104A to 104D set out the circumstances in which a council may/must grant or refuse consent, with reference to the type of activity for which consent is sought. Under each of these sections the manner of any grant or refusal is:
- Section 104A - Controlled activities
A council must grant this type of application unless it has insufficient information to determine that the activity is controlled. The council may impose suitable conditions in relation to those matters over which control is reserved as set out in its plan or proposed plan, or reserved in any national environmental standards or other regulations. Councils also need to consider what effect the condition is mitigating and standardised or proposed conditions must be relevant to the application.
- Section 104B - Discretionary and non-complying activities
A council may grant or refuse this type of application; and may impose conditions if it chooses to grant the resource consent.
- Section 104C - Restricted discretionary activities
A council may grant or refuse this type of application, but must only consider the activity based on the matters to which it has restricted the exercise of its discretion under its plan or proposed plan, and in national environmental standards or other regulations. If a council chooses to grant consent, then conditions can only be imposed in relation to those matters over which discretion has been restricted in the plan or proposed plan, national environmental standards or regulations.
- Section 104D - Particular restrictions for non-complying activities
When dealing with non-complying activities, before granting an application a council must be satisfied that either the adverse effects of the activity on the environment will be minor (s104D(1)(a)), or the proposed activity will not be contrary to the objectives and policies of a proposed plan and/or plan (s104D(1)(b)).
This consideration for non-complying activities is commonly known as the 'threshold test' or the 'gateway test '. If either of the limbs of the test can be passed, then the application is eligible for approval, but the proposed activity must still be considered under s104. There is no primacy given to either of the two limbs, so if one limb can be passed then the 'test ' can be considered to be passed.