RMA 101: explaining the consent process

The Cloud Ocean Bottling story has raised a lot of questions about the way in which Environment Canterbury processes and grants consents under the Resource Management Act (RMA).

The RMA is New Zealand’s main piece of national legislation that sets out how we should manage our environment and natural resources (eg, air, soil, fresh water and coastal marine areas). It is based on the principle of sustainable management, which involves considering the effects of activities on the environment now and in the future when making resource management decisions. Environment Canterbury is legally obliged to follow the law as determined by the RMA when making its consent decisions.

We understand that there is legitimate public interest in these processes and we want to provide some clarity on what they are, and the sorts of constraints and powers that Environment Canterbury has under the RMA.

To help understand the process, we provide answers to some of the most commonly asked questions:

What happens when an application for an activity that requires consent is received by Environment Canterbury?
First, there has to be sufficient information within the application for it to be considered. Any person can apply for any activity that is not prohibited under a rule in a plan – therefore, we are legally obliged to process every application that we receive.

 

If there is sufficient information, and the application is formally accepted, it will then be considered against the statutory tests provided within the RMA, including the effects on the environment from the proposed activity and the degree of those effects.

We do this by auditing the information provided in the application, using technical experts and the planning framework as guidance. For example, extracting gravel from a river has an effect on the environment, but a rule in the plan might say that removing any gravel up to a certain amount is acceptable. Therefore, if we received an application to take an amount less than the amount specified in the plan, we would use the plan framework as guidance to determine whether the effect is more than minor in accordance with the RMA. In this case, we would consider the effects of the proposed activity to be less than minor.

Once we have audited the application and determined the environmental effects and the degree, we then need to decide the appropriate type of notification for the application.

How do we decide whether to notify an application and what are the different types of notification?
There are three types of notification:

1. Non-notified:
An application will be non-notified if adverse effects on both the environment and people are less than minor. This means that the environmental effects are deemed acceptable and no parties are considered to be affected OR written approval has been provided by all those people adversely affected.

These applications are required to be processed within 20 working days.

2. Limited notification:
An application will be limited notified if adverse effects on persons are minor or more than minor.

It will then be open for submissions from specifically affected persons, and only from them.

The timeline is: 20 working days to notify, 20 working days submission period, 45 working days to complete the hearing and 15 working days for a decision to be issued.

3. Public notification:
An application will be publicly notified if adverse effects on the environment are more than minor.
The applicant can request public notification OR it may be required under s95C of the RMA.

Anyone is able to submit on a publicly notified application.

The timeline is 20 working days to notify, 20 working days submission period, 75 working days to complete the hearing and 15 working days for a decision to be issued.

What can and can't Environment Canterbury take into account when deciding on notification?
The RMA sets out a specific order we must take the application through to determine the type of notification appropriate for that application (see page 2 of this Ministry for Environment’s guide to the RMA consent process), as follows:
  • It can look at both localised adverse effects and those that impact the wider environment.
  • It can't take into account positive effects.
  • It can look at the magnitude of effects, based on the plan provisions and s95 of the RMA.
  • It can't take into account the race, gender or economic position of the applicant. 
Affected parties versus interested parties – what's the difference?
Affected

An “affected person” (which is a term defined in the RMA) is someone on whom the effects of the proposed activity will be minor or more than minor. Effects on a person (eg, neighbour) may be more than minor BUT overall the environmental effects of the activity may still be minor. If the person has given written approval, they have waived their rights as an affected person.

Interested

An interested person or party may be a group or body that has a general interest in an application, but is not deemed to be ‘affected’ under the RMA. We have a list of interested parties that are sent an email advising them of specific applications relevant to their particular interest, a courtesy we undertake to ensure those parties are made aware of relevant applications.

An interested party may then send a comment to us, which we use during application processing to determine whether they are an affected person, which gives them certain rights under the RMA.

An interested person or party (like anyone else) is then entitled to make a submission if the application has been publicly notified.

What are some of the things that inform Environment Canterbury's decision to grant or refuse an application?
  • Both positive and adverse effects.
  • Relevant planning provisions (eg, objectives and policies).
  • Other relevant matters (eg, Iwi management plans).
  • The ways in which the application achieves the overall purpose of the RMA.
What are "conditions" to a consent?
The purpose of conditions is to avoid, remedy or mitigate the associated effects of the activity that the consent authorises (s108). Among other things, they define the scope of the consent and can also be administrative.
Can consents be transferred?
In the same way that when you buy a house and there may be rights/chattels that come with the property, if there is a resource consent attached to a property, it comes with the property.

 

The transfer of a consent to a new owner of the property is done by notice to Environment Canterbury. It is an administrative change and we have no ability to refuse this type of transfer.

If the transfer is from one site to another, it will require a new application and assessment of effects. It may also be subject to new conditions.

Is it possible for Environment Canterbury to review a decision?
We cannot review a decision to grant or decline a resource consent, which can only be carried out by the Courts.
However, Environment Canterbury can review the conditions in a consent (that is, the requirements that a person who holds a consent is required to comply with when they exercise their consent) but only in certain circumstances.
Those circumstances include(i) any unforeseen environmental effects of that activity that weren’t originally anticipated, or (ii) to align the activity with the provisions of a new plan. However, any review must ensure the consent remains viable.

For more information on the RMA, the Ministry for the Environment provides lots of useful guidance online, including: