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What does it mean to give your affected party approval under the Resource Management Act 1991?

When an activity such as development of a site or a change in the use of land is happening near to you, the Resource Management Act 1991 section 95E provides that the local authority can decide on whether to give limited notification to the proposal or to publicly notify the proposal.

If a proposal is to be publicity notified, any member of the public can provide a submission as to why, or why not, the proposal should proceed. A proposal that is publicity notified will usually be decided following a public hearing.  When a proposal has been selected for limited notification, the applicant who is applying for resource consent will only need to seek the approval of each person that the Council determines to be an affected party.

Whether a hearing is needed for a proposal that has been selected for limited notification will depend on whether or not all affected parties give their approval.  Even if only one party does not approve, the proposal is likely to have a hearing unless no-one wants to be heard and the Council’s reporting officer recommends consent. Accordingly, it is very much in the Applicant’s best interests to obtain all affected party approvals as this is likely to avoid the need for a hearing.

What to consider if you have been presented with an affected party approval form?

Do your homework. Ensure that you fully understand what the proposal is for and how it affects you. Examples of effects to consider are traffic, noise, future development, water/resource use and reverse sensitivity. There are elements that cannot be considered, such as a decrease in the value of your land (as this is not an environmental effect).  Remember that if you sign the approval, the Council’s reporting officer must not take into account any effects on you or your property.

Once you understand the effects on your property, it is worth discussing these with the Applicant. There may be some mitigation measures that can be put in place to lessen the effects on you, and, you may agree to sign the affected party form.

However, any agreement between you and the applicant on effects and mitigation needs to be carefully considered. For example, if a fence is offered to you, you need to ensure the agreement specifies all the necessary details such as   the type of wood, height and length of the fence so that both parties are clear on what has been agreed.  In a situation such as this, we recommend that a formal contractual agreement between you and the applicant be prepared. These agreements are often referred to as a ‘side agreement’ or ‘consent agreement’.  The side agreement should be reviewed by your lawyer as once you sign the affected party approval form any effects on your land will not be considered by the Council when deciding whether to approve the development.

If you do not sign the affected party approval form

If you choose not to provide the Applicant with your affected party approval form, the application will go to a hearing if you or any other party lodges a submission in opposition.  At the hearing, you will have a chance to speak, submit any expert or technical evidence as to the effects on your land and it will be up to the independently appointed panel or commissioner to decide what effects can be mitigated (if at all) and how. The outcome for you will therefore be in the hands of the panel.

If there are no submissions in opposition, there may still be a hearing if the reporting officer opposes the application. Provided you have not given your approval, the consent authority must consider all effects on you and on your land.

If resource consent is granted and you do not agree with the decision, you can appeal to the Environment Court provided you lodged a submission in opposition.  You do not have appeal rights just because you were considered to be an affected party and didn’t give approval. You must actually be a submitter in order to appeal.  The Applicant can also appeal the outcome or the specific conditions.

Conclusion

Always seek advice before signing an affected party approval form to ensure you fully understand what you are giving up and what this means for you in the long term. If the plans for the proposal change considerably, your approval should be sought again after those changes.  Always think about whether the effects on you are going to be appropriately managed and whether there is more that could be done to ensure there is no adverse impact.  Your approval should be considered carefully and only be given if you are fully aware of the proposal’s likely effects on you.

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.

For further information

Charlotte Muggeridge - Harkness Henry Associate

Charlotte Muggeridge

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