An affected person is someone who may be potentially affected (in an adverse way) by the environmental effects of a proposal to at least a ‘minor’ degree. Where an effect is considered to be ‘less than minor’ in degree, the RMA does not identify these persons to be affected parties. Therefore both the application and the Council will consider the severity of each environmental effect resulting from the proposal. If any are ‘minor’, then they will consider who is likely to be affected and whether a written approval has been provided by the affected party.
Potentially affected persons can be comprised of the general public, organisations, landowners, occupiers (tenants), tangata whenua, other Ministers of the Crown who have statutory responsibilities that may be affected, downstream users, District and Regional Councils, and any other person affected in a manner more than the public generally.
In deciding whether effects are minor or not, the Council must disregard any effects on a person who has already provided their written approval. They must also not consider: precedent of granting consent, an adverse effect that is permitted by a rule or National Environmental Standard, matters that are outside their control or discretion, or trade competition.
Therefore the Council will consider:
(1) The purpose of the rules, for example;
A building closer to your boundary than the rules allow will generally only affect the adjoining neighbour whose property may be shaded and whose privacy may be affected.
The establishment of a commercial office in a residential zone would be likely to result in more noise and traffic than residents would expect in their area.
(2) The extent or severity of the effect, for example;
Where someone wants to locate a building closer to a boundary than rules permit, the size of the difference between what is proposed and what is allowed (the extent of the non-compliance) will determine whether the neighbour is affected or not.
Whether people would expect this type of building or land use to occur considering the property zoning, the rules and permitted activities.
Would a development that complies with all the rules in the relevant District or Regional Plan have the same or similar effects on a neighbour as what is being proposed? (This is called the permitted baseline.)
(3) Is it unreasonable in the circumstances to require a person’s written approval be obtained?
Such as; are they unable to be contacted by an Applicant or Council.
Written Approvals from Affected Parties
Where the Council decides that the environmental effects of a proposal are ‘minor’ on a person and their written approval has not been provided, the Council will notify the application directly to that affected person and consider the application on a Limited Notified basis, (see Bulletin 2).
Often a Council will advise the applicant that certain approvals are necessary and give them an opportunity to seek them before the notification process begins. Where all necessary written approvals can be provided the application will continue on a non-notified basis. Therefore it is in the applicant’s best interests to obtain any necessary written approvals prior to lodging the application.
Written approvals are required from both owners and occupiers of affected properties, and the onus to obtain them rests with the applicant.
Consent authorities have a special form for written approvals. The form indicates the affected person’s name, address and land ownership/occupier details. It has space to describe the detail of the proposal including why resource consent is necessary. The form usually requires the affected person to confirm that they have seen the full consent application and requires application plans to be signed. A written approval can be withdrawn at any time by an affected person, so it is important that the written approval relates to the most relevant and recent plans, and that the affected party is made aware of any proposal changes that might occur as the application progresses.
When obtaining written approvals, it is often not reasonable to expect someone to consider the application immediately. It is best to explain what is proposed and why and give people time to think about it. If an affected party does not wish to sign a written approval form, it is prudent to ask what their concerns are and consider whether there is a way to mitigate them. Perhaps the proposal can be altered in some way that is satisfactory to both parties.
Councils are unable to accept written approvals that are subject to conditions specified by the affected party. Those types of conditions should be the subject of a private agreement between the applicant and the affected party.
Eliot Sinclair has experience with all types of applications and can help you design your proposal to avoid, remedy and mitigate potential environmental effects as far as possible.
We can advise at an early stage of the project whether your proposal is likely to require consultation with potentially affected parties and help you to liaise with Council staff as necessary.