A common feature of any new or altered ECE centre is the council resource consent process. It can feel daunting even to those who are familiar with it – the most complicated part is often the notification process. This article aims to demystify the bureaucratic and give you a basic understanding of why some applications are notified and some are not.Most council plans have rules that require ECEs to get a resource consent before they can be established or before existing ECEs can be altered.
The resource consent process is controlled by the Resource Management Act 1991 (the RMA) and one of the first things it requires a council to do is to decide whether an application should proceed with public notification, limited notification, or no notification at all. This decision is entirely separate to whether consent should be granted (that comes later) and must follow strict criteria for consideration set out in the RMA.
Public notification means the council gives public notice of a resource consent application, commonly an advert in a newspaper or on its website. Anyone can make a submission telling the council what they think about the application.
Under the RMA criteria, there are limited reasons why an application can be publicly notified. The main reason is if the activity will have or is likely to have adverse effects on the environment that are more than minor. For childcare centres this commonly revolves round noise, parking, traffic, design, character and amenity.
It is important to ensure that a team of suitably qualified experts are engaged early in the design process to ensure that existing conditions such as sensitive noise receivers, traffic conditions, and district plan requirements right are taken into account right at the early stages of a design. This can ensure that any adverse effects are kept to a minimum, or avoided altogether.
Other possible reasons for public notification are if there is a rule that says it must be, if there are special circumstances (although this is quite a narrow legal test), if the applicant asks for public notification, or if the council has formally asked for further information and the applicant refuses to provide it. There are also times when a rule says an application cannot be publicly notified.
Limited notification means the council serves notice only on those people that it considers to be affected by the proposal. Only those people can make a submission.
Under the RMA criteria, for a someone to be considered an affected person the activity’s adverse effects on them must be at least minor or more than minor. Each affected person is served notice of the application. A misconception that often crops up is that because a resource consent application is proposing change, neighbours must automatically be affected. Effects that are less than minor are not enough to be considered affected.
Again, having engaged a team of experts to advise on design the proposal at the outset will help to ensure that potential effects on neighbours are avoided or kept to a minimum. A good design can result in nobody being considered an affected person.
Limited notification might also occur if there are customary rights groups or customary marine title groups affected, or if the council thinks there are special circumstances that warrant notification to some other person not eligible for limited notification. Again there can be times when a rule says an application must proceed without limited notification.
Non-notification means the council does not notify the application to anyone and just gets on with deciding whether or not to grant consent.
This is what happens when the council has gone through the public and limited notification tests under the RMA and found that neither applies. So in other words, when the adverse effects on the environment will be no more than minor and there are no affected persons.
Obtaining a written approval from someone means that the council is not allowed to take into account the effects on that person. This means that an application might not need to be limited notified if all necessary written approvals can be obtained.
When to speak to neighbours is always difficult. At the very least it is best to have a basic design and understanding from an expert team of what and where the likely effects will be. This will help to identify the right people to speak to and have an informed conversation free of speculation.
Contrary to popular belief, the submission process is not a numbers game. A council’s decision does not turn on the number of submissions received in opposition or in favour of a proposal. Instead the council will look at the issues raised in those submissions, as well as a host of other matters, when it assess whether to grant consent.
This is a pretty basic explanation of the notification process under the RMA and hopefully you will be feeling more informed after reading this article. But it must be stressed that this should not replace expert professional advice. The reality is that each part of the process is very tightly prescribed. Most terms have very specific definitions and case law sitting behind them which influences what can and cannot be taken into account at each stage. We haven’t even touched upon concepts such as the permitted baseline, the existing and future environments, trade competition, special circumstances or what constitutes a person. Indeed councils are taken to court from time to time by people who feel a particular notification decision did not follow the RMA criteria correctly.
Author: Gerard McCarten