When are adverse effects more than minor?

The assessment of whether an effect is minor is one of fact and degree. It is at the lower end of the scale of major, moderate and minor effects, but must be something more than de minimus. ⁸²⁰  It is important to note that the test relates to adverse effects only, therefore a balancing of positive and negative effects is not to be undertaken when making a notification decision, save to the extent an adverse effect is eliminated or reduced by a countervailing factor (e.g. extra noise may be eliminated by additional sound proofing). ⁸²¹

When determining whether an adverse effect is likely to be more than minor, the consent authority must disregard:

• Any effects on persons who own or occupy the land on which the activity will occur and any adjacent land
• Any effect on a person who has given written approval
• Trade competition and the effects of trade competition

When an application is for a restricted discretionary activity, only the effects of the proposal that relate to a matter for which a rule or national environmental standard  restricts discretion  can be considered when deciding whether or not an effect is more than minor. ⁸²²

The consent authority may disregard an adverse effect if a rule in a plan or national environmental standard permits an activity with that effect. This is commonly referred to as the 'permitted baseline'.

The permitted baseline allows the consent authority to disregard adverse effects which are permitted by a rule or a national environmental standard. An activity which is permitted but “fanciful” (or purely hypothetical) should not be considered part of the permitted baseline. ⁸²³

The consent authority is not required to apply the permitted baseline. It may be inappropriate to apply the permitted baseline where the permitted effect would only arise as a result of a fanciful activity or where the permitted baseline may have unintended or undesirable consequences for Part 2 matters. ⁸²⁴

The effects of the activity are to be assessed against the “existing environment”.  This includes existing use rights, existing activities carried out under existing consents and resource consents which have been granted where it appears those consents will be implemented. ⁸²⁵

The Court of Appeal has explained the difference between the two concepts as follows: ⁸²⁶

In the RMA context, the environment and the permitted baseline concepts are critically difference. Both are discrete statutory considerations. The environment refers to a state of affairs which a consent authority must determine and take into account when assessing the effects of allowing an activity; by contrast, the permitted baseline provide the authority with an optional means of measuring – or more appropriately excluding – adverse effects of that activity which would otherwise be inherent in the proposal.

The purpose of the requirement to disregard effects on the application site and adjacent land appears to be to exclude effects which are personal to owners and occupiers of the immediately affected land from the assessment of effects on the wider environment. The meaning of the word “adjacent” is uncertain however it may not be limited to adjoining land and may include nearby properties. ⁸²⁷

Last updated at 10:44AM on January 5, 2018