Review Conditions

A review condition is an effective and efficient way of providing a council the flexibility to review the consent conditions to address specific significant adverse effects that might arise during the exercise of the consent.

An example of a broadly worded review condition is: The council may once per year, on any of the last five working days of either May or November, serve notice of its intention to review the conditions of this consent for the purpose of dealing with any adverse effect on the environment which may arise from the exercise of the consent and which it is appropriate to deal with at a later stage.

An example of a more specific review condition is: The council may once per year, on any of the last five working days of either May or November, serve notice of its intention to review the conditions of this consent for the purpose of:

  1. changing the frequency and location of monitoring specified in condition X,

  2. amending or adding conditions to address odour effects that may arise, and

  3. dealing with any adverse effect on the environment which may arise from the exercise of the consent and which it is appropriate to deal with at a later stage.

Section 128 specifies four broad grounds on which a council may review the conditions of consent, as follows:

  1. The most common basis for review will either be where there is provision for review in a consent (s128 (1)(a)) or through the operation of a regional rule relating to water, coastal or discharge permits to enable the levels, flows, rates or standards set by a regional rule to be met (s128(1)(b)). Also, in the case of water, coastal or discharge permits, a review may take place when a relevant National Environmental Standard (NES) has been made under s43 (s128 (1)(ba)).

  2. A review can be undertaken under s128(1)(a)(i) on the basis of any adverse effects arising in the future from the exercise of the consent. The review condition must specify the time(s) for review, the purpose of the review and what environmental effect the review relates to. A condition stating that the consent is subject to review 'at any time that the council considers appropriate' is inadequate and would not comply with the requirements of s128.

  3. For any other purpose specified in the consent 128(1)(a)(iii).

  4. If the information made available to the council by the applicant as part of the consent application contained inaccuracies which materially influenced the decision on the application and the effects of the consent make it necessary to apply more appropriate conditions (s128(c)).

General principles

Consent holders have a legitimate requirement for a high level of certainty, so review conditions should only be used where the actual adverse effect in question or the degree of effect is uncertain, although the type of effect can be specified with some certainty. The review process cannot be used to materially alter the consent's nature. A review condition should not be a replacement for maximising the level of certainty about adverse effects during the consent process.

Before including a review condition the council needs to consider:

  • Are there any uncertainties about adverse effects, particularly cumulative effects?

  • Should more information be obtained prior to making a decision?

  • Is there a specific issue that could be addressed through a ‘trigger and response’ condition?

  • Should the consent application be refused because of unknown/uncertain effects that might arise?

  • Should a short-term consent be granted?

  • Whether there are any means available to the consent holder to address specific adverse effects, in the event that a review does need to be undertaken? There is no benefit in reviewing the conditions if there is no ability to mitigate the effects of concern.

  • Whether possible mitigation measures would require the approval of a third party? For example, roading improvements which would require approval via a separate council process.

If conditions relating to the change of a regional plan are to be attached to a consent, that plan should have:

  • rules relating to the matters in s128(1)(b); and

  • include a statement that the rules affect the exercise of existing resource consents for activities that contravene the rule (refer to ss68(7) and 130(5)-(7)).

Review frequency

A standard broadly worded review clause should provide a reasonable basis for initiating a review if some unforeseen adverse effects occurred. However, where certain adverse effects are anticipated as likely to occur, but there is some uncertainty about the degree of the adverse effect that may occur, it may be prudent to include a specific review purpose, such as to enable a specific adverse effect to be addressed, or to require some specific further investigation or monitoring.

Careful consideration needs to be given to the frequency and timing of a review. An appropriate balance needs to be achieved between a consent holder’s need for certainty and the need for the council to be able respond to a specific environmental issue or event.

What happens when a council decides to review a condition?

If a council decides to initiate a review of a condition then it must serve notice of the intended review on the consent holder (s129). This notice:

  • shall state which condition(s) are being reviewed

  • shall state the reasons for the review. It is critical that these reasons are based on a thorough and objective documented assessment of the relevant issues

  • shall specify the information which the council took into account in making its decision to review the consent (unless the notice is given under s128(1)(a) or (ba) or (2)).

  • invite the consent holder to propose new consent conditions within 20 working days of service of the notice. This is not compulsory, but it is best practice

  • shall advise the consent holder of any charges payable under s36(1)(cb) and the estimated amount.

Under s128(2) a council must serve notice on a consent holder of its intention to review the conditions of a resource consent if an order is made under s339(5)(b). Orders under s339(5)(b) are made when a person is convicted of an offence against the RMA (s338) and the offence involves an act or omission that contravenes the consent.

What is the process if a review proceeds?

The process for reviewing a condition is much the same as the process that applies to resource consent applications (ss96 to 102 apply) albeit that the actual consent holder takes the position of the 'applicant' and the notice for review is in effect the 'application'.

Sections 95 to 95F also apply to this process as if the review of the condition(s) was an application for a discretionary activity taking into account the effects of the change of conditions only. They can be considered on a notified/limited notified/non-notified basis. Remember it is only the conditions that are being reviewed not the consent itself or effects outside those associated with the review. This applies whether the notification is required by a plan or proposed plan or the review relates to a resource consent in respect of any status activity.

When reviewing the conditions of consent the council:

  1. must have regard to the matters in s104 and whether the activity will continue to be viable after the condition is changed

  2. must have regard to any reasons the Court provided for making an order requiring a review under s128(2)

  3. may have regard to the manner in which the consent has been used.

The council must apply ss106 to 116 with respect to notifying the review, setting any new conditions, and making a decision. Sections 120 and 121 also apply in relation to the lodgement of any appeals against a review decision. The flowchart below shows the legal process that a review of a condition goes through.

Flowchart of condition review process

Condition Review process flowchart

 

Some councils use independent commissioners to make decisions on consent condition reviews to clearly separate the decision-maker from the decision to initiate the review. This is not a requirement but it is good practice.

If a council reviews a resource consent under s128(1)(c) (which relates to reviewing consent conditions because of inaccurate information being supplied at the time the consent was originally applied for), and it is found the consent application contained inaccuracies that the council considers materially influenced the decision made, and significant adverse effects on the environment have occurred as a result of the exercise of the consent, then the council may cancel the consent (s132 (3)). If a council considers cancelling a consent under s132(3) or 132(4), ss128 to 131 and subsections (1) and (2) apply as if the cancellation were a change to the consent conditions.