Notices of requirement are relevant for resource consent applications
Notices of requirement are relevant for resource consent applications
Wednesday 30 March, 2022
A requiring authority can issue a notice of requirement over land that is required for a public work to stop the land being used in a way that would prevent the proposed public work. Aokautere gives important guidance on whether to consider notices of requirements when deciding resource consent applications. Consent authorities can misunderstand the consequence of a designation (or notice of requirement prior to a confirmed designation) on land when considering a third-party resource consent application. If a consent authority does not appreciate the purpose of a notice of requirement (or designation), it can mistakenly grant resource consent for an activity which will hinder or prevent the public work for which the notice/designation was issued.
In Aokautere, the Council was considering a resource consent application for subdivision/land use in Palmerston North. The Council declined the application because part of the land was subject to a notice of requirement for a public road project to connect an unformed road to an intersection. The Council was also the requiring authority and formed the view that the proposed subdivision would prevent the roading project.
The applicant could not appeal the council’s decision because it did not have standing under section 120(1A) of the RMA, which removes appeal rights on a decision concerning a boundary activity application unless that activity is non-complying. As a result, the applicant applied to the Environment Court under s 310 for declarations that granting its application would not breach or contravene the notice of requirement nor breach ss 176 and 178 of the RMA.
The Court agreed with the Council that the key issue was whether a decision-maker can have regard to a notice of requirement when making a decision under s 104. The Court held that it was lawful for the council to consider it, particularly under s104(1)(c), which directs that a decision-maker must have regard to an “other matter” that is relevant and reasonably necessary to determine a resource consent application. The restrictions under ss176 and 178 also support this, as they state that proposed activities cannot proceed if they will hinder or prevent a public work, unless with the requiring authority gives permission. The Court refused to make the declaration sought.
Conclusion
If a consenting authority determines that a notice of requirement for a designation is relevant and reasonably necessary to its considerations under s104 when considering an application, then it must have regard to that notice of requirement’s existence (subject to Part 2). The consent authority will decide what weight to give to the notice of requirement, but if it decides that the consent would prevent or hinder the public work, that is likely to be decisive in determining the application.
Our team is experienced in the interplay between notices of requirements and designations and resource consent applications and can assist in making or assessing applications.
