Written Approval of Affected Persons

Introduction

Under section 94 of the Resource Management Act 1991, where you are applying for consent for a discretionary or non-complying activity, this can be processed as a non-notified application where:

• The Council is satisfied the adverse effects of the activity on the environment will be minor; and
• All persons who, in the opinion of the Council, may be adversely affected by the activity have given their written approval.

The Council can decide that a person may not be adversely affected if it is unreasonable in the circumstances to seek the written approval of that person. There are very limited circumstances where it might be unreasonable for an applicant to have to obtain approval of every affected person. For example this would include where an affected person is overseas without a reliable contact address. The Council is not allowed to take into account the adverse effects of the activity on any person who has provided their written approval.

The District Plan

The District Plan provides the following as a guideline only to assist applicants and interested parties. It is not intended to limit the Council's discretion or responsibilities under section 94 of the Resource Management Act 1991.

1. For Discretionary Activity applications seeking resource consent in respect of the following matters, applications will generally not be notified:

• minor additions or alterations to existing non-residential activities which do not significantly change the character or overall scale of the activity

2. For Discretionary Activity applications seeking resource consent in respect of the following matters, applications will generally not be notified if the written consents of the owners of adjoining sites are submitted:

• building height
• yards
• height in relation to boundaries
• privacy and amenity
• car parking and outdoor storage areas
• building development or design and location (Community, Working, and Transport Environments only)
• building coverage 
• outdoor storage

3. For Discretionary Activity applications seeking resource consent in respect of the following matters, applications may not be notified, if the written consents of affected persons are submitted:

• Residential activities/density
• building location - Natural Landscape Elements
• lines and pipes having an above ground length not exceeding 100m
• infrastructure not exceeding 3.0 metres in height or 20m² in above ground coverage
• odour, dust, vibration and lighting and
• street trading

4. For Discretionary Activity applications seeking resource consent in respect of the following matters, applications will generally be notified:

• all Natural Areas Rules
• non-Residential Activities
• traffic generation
• noise
• subdivision
• heritage
• infrastructure not covered in (3) above
• air discharges, odour, dust, glare and vibration
• esplanade reserves
• contaminated sites and hazardous facilities
• signs
• any Discretionary Activity for Scheduled Sites
• any Discretionary Activity for Special Areas.

5. For Non-Complying Activity applications resource consents will generally be notified.

Adverse effects

In identifying affected persons, you must consider whether there is any adverse effect, including any minor effect, which may affect any person. Please note that adverse effects that will certainly be de minimis (i.e. insignificant or hardly noticeable - even less than minor), and those effects which are only a remote possibility (Bayley v Manukau City Council; Barrett v Wellington City Council [2000] NZRMA 481) can be disregarded.

Potentially adversely affected persons (depending on the nature and scale of the resource consent application) may include the following:

• Owners and occupiers of the land 
• Owners and occupiers of adjacent, nearby and/or downstream land 
• Tangata whenua 
• Environmental groups 
• Community groups
• Any Minister of the Crown with statutory responsibilities for an area or a site that could be adversely affected 
• The Auckland Regional Council 
• Those persons or organisations whose use or enjoyment of an area could be adversely affected 
• Any other person who the council considers relevant in the circumstances 

The approval of both the owners and the occupiers (should they be different) of the land identified as adversely affected are required. Remember to get the address, names and signatures of all occupiers and owners. Where the property is jointly owned, the consents of all owners, trustees, or directors of a company are required.

Council has a form for applicants to use to obtain the written approval of affected persons. Requiring the affected persons to sign the proposed plans gives evidence that the affected persons have sighted the plans. However it is not necessary to use the form if the affected persons give their written consent on the application plans as long the plans detail what the affected person is consenting to. 

When approaching affected persons, the following information is useful:

• Description of the proposal
• Details of the reasons why a resource consent is required
• Copies of plans
• Your contact details should be provided, to enable any person or group to obtain any clarification or more information, or provide a response

Once written consent has been provided the following rules apply to the signatories:

• That once the form has been signed the consent authority is no longer required to consider any effects on them (section 104(4) of the Resource Management Act 1991)
• That by not making a submission, they surrender their right to appeal any decision should they be unhappy with it; and
• That their written approval can be withdrawn at any time

If you obtain the written consents of persons or parties who the Council considers may be adversely affected by your proposal, there is a good chance the application can be dealt with on a non-notified basis. If these approvals are not provided, this may mean that your application may be subject to limited notification (where only the affected parties may be notified of the application) or publicly notified and that the public will be able to make submissions on the application.