Welcome to the latest instalment of our bite sized blog series about the recent changes to the RMA.
The 18th of October is just around the corner. This is when a lot of the RLAA changes will kick in, including today’s special feature: Section 95 Notification. A.k.a how councils decide whether resource consent applications are:
The changes to s95 notification could mean huge savings in some development situations (notification leads to submissions, and submissions opposing your development can result in expensive hearings). They will probably also mean time savings for some resource consent applicants (as of 18 October non-notified consents are processed between 10-20 working days; if consents are limited or publicly notified that can tack on another 20 working days), and time saved for the planners processing the consents.
Not so good
One concern we have is that regular punters could be blocked from having their say about significant developments like big subdivisions in their neighbourhood.
We have to use some planning terminology so we can talk about the notification changes. Have a quick look at our last post that defines and breaks down resource consent activity statuses. It's a great tool for Regular People™ and a concise review for Policy People™. Here's the Activity Status diagram from that post in case you haven't put it on your fridge yet:
New notification on 18 October 2017
In a couple of weeks, resource consent notification will look like this:
Controlled Activities will not be publicly or limited notified unless special circumstances exist
Controlled activities are the ones that councils generally think are okay, but might need a few resource consent conditions imposed to make sure they stay okay.
The RMA will no longer require controlled activities to be notified in any way unless special circumstances exist. We don’t think there will be significant implications from this change as it generally aligns with the way district and regional plans already deal with controlled activities. Consent applications for controlled activities cannot be declined (Unless it relates to subdivision under s106). The matters that the council can take into consideration when processing controlled applications are pretty limited. So, controlled activities will remain a useful tool for Councils to manage the effects of relatively straightforward activities through consent conditions, now with the added guarantee that the activity won’t be notified.
Boundary Activities will not be publicly or limited notified unless special circumstances exist
We talked about Boundary Activities in an earlier bite sized post. Boundary Activities are those that infringe on rules that relate to a private boundary (i.e. not a road, river, lake or reserve boundary), and where any neighbour sharing the infringed boundary has given their written approval for the infringement.
The RMA will not require Boundary Activities to be notified in any way unless special circumstances exist.
As we mentioned in that earlier post, we’re not convinced that Boundary Activities are a great idea, but this explicit exemption from notification certainly aligns with the new concept of Boundary Activities.
If a resource consent application for a subdivision or a residential activity is classified as a Restricted Discretionary or Discretionary activity, they will not be publicly notified unless special circumstances exist
Subdivision of land is defined in section 218 of the RMA and is essentially the process of dividing land or a building into further titles, or changing the location of an existing boundary.
Residential activity is a term introduced through the RLAA and specifically relates to public notification. Section 95A(6) defines a residential activity as one "that requires resource consent… and that is associated with the construction, alteration, or use of 1 or more dwellinghouses on land that… is intended to be used solely or principally for residential purposes.”
If a subdivision is proposed a few doors down from your site, unless you are immediately adjacent (read: next door) to the subdivision site, you won’t get to comment on the application at all. This could be anything from a 2-lot subdivision to, say, a 500-lot subdivision. The effects of a small subdivision or residential development are unlikely to affect people beyond the immediate neighbours, so this notification change probably doesn’t affect how small subdivisions are already treated. But a 500-lot subdivision could have quite an impact on the surrounding area - certainly more widely than just the immediate neighbours. We don’t like that such a large subdivision consent application could be assessed by councils without hearing from the neighbours.
What are special circumstances, anyway?
Special circumstances are not defined in the RMA or in the RLAA, so it is up to councils to decide. How will councils decide what a special circumstance is? How will they apply it consistently?
Less community feedback, more questions
Removing notification removes the ability of the community to provide feedback on consents. We feel that these changes remove the local voice from decisions that may affect the community.
Under the current rules, councils can already decide to exclude an application from being publicly or limited notified. So, what does this change aim to fix? This generic change assumes a one size fits all approach that we think won’t always be appropriate.
When communities and councils change/update their district plans, they could decide to make subdividing a Non-Complying Activity (check out that Activity Status diagram) to gain back the ability for the public to make submissions on them. Do you think the public will request this during plan reviews?
Some tools for council planners
Public and limited notification assessment processes in sections 95A and 95B have been amended with new step-by-step processes. The amendments basically complicate things from the processing side of things. We developed some flow charts to help one of our council clients navigate the decision-making steps, and we’re sharing them here for all of our council planner friends:
Deb Kissick is a resource management policy planner who likes to figure out How Things Work.