Making a decision

When making a decision, the consent authority must have regard to: 892

  • Any actual and potential effects on the environment of allowing the activity
  • Any measure proposed or agreed by the application for the purpose of ensuring positive effects on the environment to offset or compensate for any adverse effects on the environment. 
  • Any relevant provision of a national environmental standard, other regulations, a national policy statement including the New Zealand Coastal Policy Statement
  • Any relevant provisions in the applicable regional policy statement and any proposed regional policy statement
  • Any relevant provisions in the applicable plans  or any proposed plans
  • Any other matters the consent authority considers relevant and reasonably necessary to determine the application

The requirement to ‘have regard to’ the matters above means that the decision maker must give those matters genuine attention and thought but the decision maker is not necessarily required to accept them. 893  The requirement to have regard to the above matters is also “subject to” the purpose and principles of the Resource Management Act set out in Part 2. This suggests that Part 2 will generally prevail over the above matters in the event of a conflict. 894

However, the High Court has applied the reasoning in EDS v King Salmon decision to resource consent applications considered under section 104 of the RMA.  That is, “subject to Part 2” does not give a specific direction at apply Part 2 in all cases as planning documents give substance to the principles in Part 2. Rather, a consent authority may only consider Part 2 of the Act where there is invalidity, incomplete coverage or uncertainty of meaning within the planning documents. 4526 At the time of writing, an appeal to the Court of Appeal had not yet been heard.

In making a decision on an application for resource consent the Resource Management Act expressly provides that a consent authority: 898

  • May disregard an adverse effect if a national environmental standard or  a plan permits an activity with that effect (the permitted baseline)
  • Must have regard to any resource management matters set out in a planning document until such time as the regional council has completed its obligations under section 93 of the Marine and Coastal Area (Takutai Moana) Act 2011
  • Must not have regard to trade competition or the effects of trade competition
  • Must not have regard to any effect on a person who has given written approval to the application
  • Must have regard to the value of the investment of the existing consent holder when considering an application for a new consent for an existing activity
  • May decline an application for a resource consent on the grounds that it has inadequate information to determine the application, having regard to whether any requests for further information were made
  • Must not have regard to the effects of a discharge into air of greenhouse gases on climate change except to the extent that the use and development of renewable energy enables a reduction in such discharge 899
  • In relation to discharges into water or air, must have regard to the nature of the discharge, the sensitivity of the receiving environment to adverse effects, the applicants reasons for the proposed choice, and any possible alternative methods of discharge 900
  • In relation to reclamations, must consider whether an esplanade reserve or esplanade strip is appropriate 901
  • In relation to subdivisions, to subdivisions, may refuse to grant a consent or impose conditions if there is a significant risk from natural hards. This assessment requires consideration of (a) the likelihood of natural hazards occurring, (b) the material damage to the subject land, other land, or structures that would results from natural hazards, and (c) any likely use of the land that would accelerate, worsen or result in material damage of that sort. 902
  • In relation to discharges that will enter water, the consent authority shall not grant a discharge permit if after reasonable mixing the contaminant will produce conspicuous oil or grease films, scums or foams, floatable or suspended material, cause any conspicuous change in the colour or visual clarity, any emission of objectionable odour, render fresh water unsuitable for consumption by farm animals, or cause any significant adverse effects on aquatic life. An exception applies if there are exceptional circumstances, the discharge is temporary or associated with necessary maintenance work. 903

Actual and potential effects on the environment

The section 3 definition of ‘effect’ does not apply to section 104(1)(a) due to the use of the term ‘actual and potential effects’ rather than simply ‘effects’. 904  However, this has little practical effect as the Environment Court considers the full range of effects, both actual effects and potential effects. 905

The consent authority may consider effects of low probability but high potential impact – such as the emission of odours from a beef by-products rendering plant in the event of equipment failure. 906  However, each potential effect should be assessed (quantitatively if possible) as to the probability of the occurrence and the force of the impact. 907

While the RMA does not expressly require adoption of the precautionary principle, the requirement for a consent authority to have regard to potential effects, including a potential effects of low probability and high potential impact, means it inherently requires a precautionary approach. 908

The RMA is not a ‘no risk’ statute and the Environment Court has stated that a certain element of risk is acceptable. The acceptable degree of risk is to be assessed in the circumstances of each case. 909

The ‘environment’ includes the existing environment (including existing use rights) and the future state of the environment as it might be modified by the carrying out of a permitted activity under a plan and the implementation of resource consents which have been granted where it appears those resource consents will be implemented. 910

While economic effects can be relevant (the definition of environment includes the economic conditions which affect people and communities) the financial viability of the proposed activity is not relevant. 911

Precedent effects

Concern about the effect which allowing the activity might have for consideration of subsequent applications for resource consent for the same or similar activities (in the sense of like cases being treated alike) is not an effect on the environment. However, potential precedent effects are likely to be considered as a relevant matter in determining an application and may weigh against the grant of consent. 912

Permitted baseline

The consent authority is not required to apply the permitted baseline and the permitted baseline is limited to effects which are permitted by a plan. This allows for the consideration of cumulative effects. What could be done on a sight as of right (permitted) involves credible activities, not purely hypothetical possibilities which are out of touch with the reality of the situation (fanciful activities). 913   For more information see the discussion of this concept in relation to notification.

Onus of proof

In resource consent applications there is a burden of proof on the applicant in that they must persuade the adjudicator that granting the resource consent is in accordance with the sustainable management purpose of the Resource Management Act. There is also swinging evidential burden on each issue that needs to be determined by the consent authority 914  – as the weight of evidence presented by the applicant develops the evidential burden of proof may shift to those opposing the applicant on that issue.

There is no one standard of proof (i.e. balance of probabilities or beyond reasonable doubt) that applies; the consent authority must simply evaluate all the matters to be taken into account under section 104 on the evidence before it in a rational way, based on the evidence and its experience. 915  There is no “standard of proof” in relation to potential future activities or events; the decision maker must make an assessment of the probabilities of a future activity or event and the associated costs and benefits. 916

Proposed plans

Section 104 requires proposed plans to be taken into account. The weight to be given to a proposed plan depends upon what stage it has reached in the First Schedule process  the weight generally being greater as a proposed plan moves through the hearing and appeals process. 917   Greater weight may also be given to a proposed plan which represents a significant shift in council policy provided the new provisions are in accordance with Part 2. 918

Alternatives

Alternative locations or methods may be a relevant matter under s 104(1)(c). Clause 1(b) of Schedule 4 requires an assessment of environmental effects to include a description of possible alternative locations or methods where an activity would result in any significant adverse effect on the environment. This does not extend to requiring a full cost-benefit analysis of alternative locations or methods nor is an applicant required to demonstrate that its proposal represents the best use of resources. 919  In circumstance where matters of national importance are involved, consideration of alternatives may be required. 920  In relation to a plan change application the Supreme Court recently stated: 921

The need for consideration of alternatives will arise from the nature and circumstances of the application and the reasons advanced in support of it. Particularly where the applicant for the plan change is seeking exclusive use of a public resource for private gain and the proposed use will have significant adverse effects on the natural attributes of the relevant coastal area, this does not seem an unfairly onerous requirement.

International obligations

It is a basic tenet of international law that international instruments do not form part of the domestic law unless they are expressly incorporated. 922  However, international instruments may be relevant considerations under s104(1)(c) with the weight to be given to them dependant on the nature of New Zealand’s obligations under them and the extent to which government policy had indicated how New Zealand’s obligations will be given effect to in its domestic law. 923

Trade competition

Decision makers are not permitted to consider trade competition (e.g. competition between two supermarket operators) or the effects of trade competition when considering an application for resource consent. The purpose of this is to prevent trade competitors frustrating legitimate activities purely for the purpose of preventing commercial competition. Further restriction on the ability of trade submitters to lodge submissions and appeals are contained in Part 11A of the Resource Management Act. These restrictions do not prevent the decision maker considering wider amenity or economic effects which are not caused directly by trade competition (e.g. the effect a new retail centre may have  on an existing retail centre which contributes to the social and economic wellbeing of a local community). 924

Written approval

The consent authority cannot consider the effect of an activity on a person who has given written approval for an application, unless the approval is withdrawn before the hearing or (if no hearing) before the decision. The RMA does not prevent applicants from compensating affected persons in return for written approvals and the motive for giving approval does not diminish the giving of approval. 925

Irrelevant considerations

The consent authority should not consider:

  • the business viability of proposals 926
  • The personal circumstances or financial difficulties of an applicant 927
  • The cost of a public work 928
  • Matters to be considered under another consent (if not bundled) 929
  • Private property rights at common law 930
  • Past conduct of the applicant (unless s 124B applies) 931
  • Effects on property values 932
  • Pending legislation 933
  • Sustainability of mineral resources 934

Greenhouse gases

Section 104E was inserted by the Resource Management (Energy and Climate Change) Amendment Act 2004. The legislative policy was to deal with greenhouse gases and climate change on a national basis (rather than locally or regionally), while enabling the positive effects of the use of renewable energy to be assessed locally or regionally. 935

Bundling approach to activity status

A bundling approach is applied to overlapping resource consent applications so that the most restrictive activity status is applied to the entire proposal. 936

However, is not appropriate to apply the bundling approach where:

  • One of the consents sought is for a controlled activity or restricted discretionary activity;
  • The scope of the consent authority’s discretion is relatively restricted; and
  • The effects of exercising the two consents would not overlap or have consequential or flow-on effects on matters to be considered on the other application. 937

Decision by activity status

An application for a resource consent for a controlled activity must be granted although conditions may be imposed over matters over which control has been reserved. 938  There is one exception - a resource consent must not be granted for a controlled activity to be carried out in a protected customary rights area if the activity will, or is likely to, have adverse effects that are more than minor on the exercise of a protected customary right, unless:

  • The relevant protected customary rights group gives its written approval for the proposed activity; or
  • The activity is one listed in section 55(3) of the Marine and Coastal Area (Takutai Moana) Act 2011 (existing aquaculture, emergency activities, accommodated infrastructure and deemed accommodated activities).

An application for a resource consent for a restricted discretionary activity may be granted or refused. However, a consent authority must only consider those matters over which its discretion has been restricted to (whether in its plan or proposed plan, a national environmental standard, or otherwise). Conditions may only be imposed in relation to those matters which its discretion has been restricted to. 939  Part 2 and section 104 matters are relevant only insofar as they relate to the matters over which discretion is restricted. 940

An application for a resource consent for a discretionary activity may be granted or refused. All the matters set out in section 104(1) are relevant to consideration of an application for consent. If consent is granted, conditions may be imposed in relation to any matter. 941

When an application is made for a non-complying activity the consent authority must first determine whether the section 104D ‘gateways test’ is satisfied – the consent authority may only consider granting consent if it is satisfied that, either:

  • The adverse effects of the activity on the environment will be minor; or
  • The application is for an activity that will not be contrary to the objectives and policies of the relevant plan and any relevant proposed plan.

If either of the limbs of the test can be satisfied, the consent authority may grant or refuse the consent after considering all the matters in section 104(1). If consent is granted, conditions may be imposed in relation to any matter. 942

The section 104D gateway test

The adverse effects of the activity on the environment will be minor – the test is whether the adverse effects as proposed to be remedied and/or mitigated are more than minor. The threshold test relates to adverse effects and therefore while mitigating factors can be considered, wider beneficial effects cannot. 943  ‘Minor’ is not defined and there is no absolute yardstick for what might constitute a minor effect; whether an effect will be more than minor is a matter of fact and degree. 944  It is not permissible to substitute a numeric test (e.g. loss of less than 25% of available industrial land) for the statutory test of ‘minor’. 945

The activity will not be contrary to the objectives and policies of the relevant plan and any relevant proposed plan  – the word contrary contemplates being opposed in nature, different, or opposite to. 946  An absence of support is not sufficient to meet the test of ‘contrary’. 947  The relevant objectives and policies “as a whole” must be considered, however a decision may be based upon a single objective. 948  Where there is a conflict between objectives and policies, the specific ones should be preferred over the general ones. 949

  1. Section 104 Resource Management Act 1991

  2. Foodstuffs (South Island) Ltd v Christchurch City Council [1999] NZRMA 481

  3. Reith v Ashburton District Council [1994] NZRMA 24

  4. Environmental Defence Society Incorporated v The New Zealand King Salmon Company Limited [2014] NZKS 38 at [88] and [131]

  5. Environmental Defence Society Incorporated v The New Zealand King Salmon Company Limited[2014] NZKS 38 at [90]

  6. Environmental Defence Society Incorporated v The New Zealand King Salmon Company Limited [2014] NZKS 38 at [88] and [131]

  7. Section 104 Resource Management Act 1991

  8. Section 104E Resource Management Act 1991

  9. Section 105 Resource Management Act 1991

  10. Section 105 Resource Management Act 1991

  11. Section 106 Resource Management Act 1991

  12. Section 107 Resource Management Act 1991

  13. Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA)

  14. Upper Clutha Environmental Society Inc v Queenstown Lakes District Council (NZEnvC C104/02, 30 August 2002)

  15. Te Aroha Air Quality Protection Appeal Group v Waikato Regional Council (No 2) (1993) 2 NZRMA 574

  16. Clifford Bay Marine Farms Ltd v Marlborough District Council (NZEnvC C131/03, 22 September 2003)

  17. Shirley Primary School v Christchurch City Council [1999] NZRMA 66

  18. Land Air Water Association v Waikato Regional Council (NZEnvC A110/01, 23 October 2001)

  19. Queenstown Lakes District Council v Hawthron Estate Ltd [2006] NZRMA 424 (CA)

  20. NZ Rail Ltd v Marlborough District Council [1994] NZRMA 70 (HC)

  21. Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA)

  22. Barrett v Wellington City Council [2000] NZRMA 481 (HC)

  23. Long Bay-Okura Great Park Society Inc v North Shore City Council (NZEnvC A078/08, 16 July 2008)

  24. Shirley Primary School v Christchurch City Council [1999] NZRMA 66

  25. Long Bay-Okura Great Park Society Inc v North Shore City Council (NZEnvC A078/08, 16 July 2008)

  26. Hanton v Auckland City Council [1994] NZRMA 289

  27. Keystone Ridge Ltd v Auckland City Council (HC Auckland, AP24/01, 3 April 2001)

  28. Meridian Energy Ltd v Central Otago District Council [2010] NZRMA 477

  29. Man O’War Station Ltd v Auckland City Council [2010] NZEnvC 248

  30. Environmental Defence Society Incorporated v The New Zealand King Salmon Company Limited [2014] NZKS 38 at [173]

  31. Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (CA)

  32. EDS v Auckland Regional Council [2002] NZRMA 492

  33. See Southern Alps Air Ltd v Queenstown Lakes District Council [2010] NZEnvC 132 and Foodstuffs (South Island) Ltd v Queenstown Lakes District Council [2012] NZEnvC 135

  34. BP Oil NZ Ltd v Palmerston North City Council [1995] NZRMA 504

  35. NZ Rail Ltd v Marlborough District Council [1994] NZRMA 70

  36. Taylor v Waimakariri District Council (PT C022/96, 24 April 1996)

  37. Omokoroa Ratepayers Association Inc v Western Bay of Plenty Regional Council NZEnvC A102/04, 5 August 2004)

  38. Manos v Waitakere City Council [1994] NZRMA 353

  39. Saunders v Northland Regional Council (NZEnvC A040/98, 27 April 1998)

  40. Walker v Manukau City Council NZEnvC C213/99, 7 December 1999)

  41. Foot v Wellington City Council (NZEnvC W073/98, 2 September 1998)

  42. Golden Bay Marine Farmers v Tasman District Council (NZEnvC W019/03, 27 March 2003)

  43. Whitcombe Veneer v West Coast Regional Council NZEnvC C140/03, 10 October 2003)

  44. Genesis Power Ltd v Greenpeach NZ Inc [2008] 1 NZLR 803

  45. Newbury Holdings Ltd v Auckland Council [2013] NZHC 1172

  46. South Park Corp Ltd v Auckland City Council [2001] NZRMA 350

  47. Section 104A Resource Management Act 1991

  48. Section 104C Resource Management Act 1991

  49. Oman Holdings Ltd v Whangarei District Council [2012] NZEnvC 1

  50. Section 104B Resource Management Act 1991

  51. Section 104B Resource Management Act 1991

  52. Stokes v Christchurch City Council [1999] NZRMA 409, Director-General of Conservation (Nelson-Marlborough Conservancy) v Marlborough District Council [2010] NZEnvC 403

  53. Elderslie park Ltd v Timaru District Council [1995] NZRMA 433

  54. Queenstown Central Ltd v Queenstown Lakes District Council [2013] NZHC 815

  55. NZ Rail Ltd v Marlborough District Council [1994] NZRMA 70

  56. Outstanding Landscape Protection Siciety Inc v Hastings District Council [2008] NZRMA 8

  57. Akaroa Civic Trust v Christchurch City Council [2010] NZEnvC 110

  58. Queenstown Central Ltd v Queenstown Lakes District Council [2013] NZHC 815

  59. RJ Davidson Family Trust v Marlborough District Council [2017] NZHC 52.

Last updated at 11:15AM on January 5, 2018