However, these directives do not give decision-makers unfettered discretion to reach any decision.  Where directive provisions in a relevant planning instrument apply the decision-maker should be careful before making a decision that clear subverts that provision.  A decision to do so is likely to expose the decision to being over turned on appeal.  This is particularly so where the directive provision is in a national policy statement. ⁴⁵²⁶

In making a decision on an application for resource consent the Resource Management Act expressly provides that a consent authority: ⁸⁹⁸

• May disregard an adverse effect if a national environmental standard or  a plan permits an activity with that effect (the permitted baseline)
• Must have regard to any resource management matters set out in a planning document until such time as the regional council has completed its obligations under section 93 of the Marine and Coastal Area (Takutai Moana) Act 2011
• Must not have regard to trade competition or the effects of trade competition
• Must not have regard to any effect on a person who has given written approval to the application
• Must have regard to the value of the investment of the existing consent holder when considering an application for a new consent for an existing activity
• May decline an application for a resource consent on the grounds that it has inadequate information to determine the application, having regard to whether any requests for further information were made
• In relation to discharges into water or air, must have regard to the nature of the discharge, the sensitivity of the receiving environment to adverse effects, the applicants reasons for the proposed choice, and any possible alternative methods of discharge ⁹⁰⁰
• In relation to reclamations, must consider whether an esplanade reserve or esplanade strip is appropriate ⁹⁰¹
• In relation to subdivisions, to subdivisions, may refuse to grant a consent or impose conditions if there is a significant risk from natural hards. This assessment requires consideration of (a) the likelihood of natural hazards occurring, (b) the material damage to the subject land, other land, or structures that would results from natural hazards, and (c) any likely use of the land that would accelerate, worsen or result in material damage of that sort. ⁹⁰²
• In relation to discharges that will enter water, the consent authority shall not grant a discharge permit if after reasonable mixing the contaminant will produce conspicuous oil or grease films, scums or foams, floatable or suspended material, cause any conspicuous change in the colour or visual clarity, any emission of objectionable odour, render fresh water unsuitable for consumption by farm animals, or cause any significant adverse effects on aquatic life. An exception applies if there are exceptional circumstances, the discharge is temporary or associated with necessary maintenance work. ⁹⁰³
  

Actual and potential effects on the environment

The section 3 definition of ‘effect’ does not apply to section 104(1)(a) due to the use of the term ‘actual and potential effects’ rather than simply ‘effects’. ⁹⁰⁴  However, this has little practical effect as the Environment Court considers the full range of effects, both actual effects and potential effects. ⁹⁰⁵

The consent authority may consider effects of low probability but high potential impact – such as the emission of odours from a beef by-products rendering plant in the event of equipment failure. ⁹⁰⁶  However, each potential effect should be assessed (quantitatively if possible) as to the probability of the occurrence and the force of the impact. ⁹⁰⁷

While the RMA does not expressly require adoption of the precautionary principle, the requirement for a consent authority to have regard to potential effects, including a potential effects of low probability and high potential impact, means it inherently requires a precautionary approach. ⁹⁰⁸

The RMA is not a ‘no risk’ statute and the Environment Court has stated that a certain element of risk is acceptable. The acceptable degree of risk is to be assessed in the circumstances of each case. ⁹⁰⁹

The ‘environment’ includes the existing environment (including existing use rights) and the future state of the environment as it might be modified by the carrying out of a permitted activity under a plan and the implementation of resource consents which have been granted where it appears those resource consents will be implemented. ⁹¹⁰

While economic effects can be relevant (the definition of environment includes the economic conditions which affect people and communities) the financial viability of the proposed activity is not relevant. ⁹¹¹

Precedent effects

Concern about the effect which allowing the activity might have for consideration of subsequent applications for resource consent for the same or similar activities (in the sense of like cases being treated alike), and thus on the integrity of the relevant planning instrument, is not an effect on the environment.

However, potential precedent effects are able to be considered as a relevant matter in determining an application and may weigh against the grant of consent under s 104(1)(c). ⁹¹²

The Courts have cautioned against attributing too much weight to purported precedent effects because every application must be considered on its merits and there is no expectation under the Resource Management Act that consent will be granted. ⁵¹⁵⁶

Permitted baseline

The permitted baseline is relevant to assessing effects under s 104 and s 104D of the Resource Management Act. ⁵¹⁵⁷    It allows a consent authority to disregard the adverse effects of a proposed activity where the relevant plan or a national environmental standard permits an activity with the same effect.  It is up to the consent authority whether it applies the permitted baseline in a particular case.  The Courts’ have provided criteria to guide this decision as follows: ⁵¹⁵⁸

• A reasonable comparison can be made between the effects of the activity for which consent is sought and the permitted activity
• There are cogent reasons for its application
• The evidence regarding effects is sufficient for a comparison to be made
• The 2 activities are similar in kind and purpose
• Application of the permitted baseline would not override Part 2 RMA

The effects of a proposed activity for which it is found there is a permitted baseline do not count towards the s 104 assessment. 

Onus of proof

In resource consent applications there is a burden of proof on the applicant in that they must persuade the adjudicator that granting the resource consent is in accordance with the sustainable management purpose of the Resource Management Act. There is also swinging evidential burden on each issue that needs to be determined by the consent authority ⁹¹⁴  – as the weight of evidence presented by the applicant develops the evidential burden of proof may shift to those opposing the applicant on that issue.

There is no one standard of proof (i.e. balance of probabilities or beyond reasonable doubt) that applies; the consent authority must simply evaluate all the matters to be taken into account under section 104 on the evidence before it in a rational way, based on the evidence and its experience. ⁹¹⁵  There is no “standard of proof” in relation to potential future activities or events; the decision maker must make an assessment of the probabilities of a future activity or event and the associated costs and benefits. ⁹¹⁶

Proposed plans

Section 104 requires proposed plans to be taken into account. The weight to be given to a proposed plan depends upon what stage it has reached in the First Schedule process  the weight generally being greater as a proposed plan moves through the hearing and appeals process. ⁹¹⁷   Greater weight may also be given to a proposed plan which represents a significant shift in council policy provided the new provisions are in accordance with Part 2. ⁹¹⁸

Alternatives

Alternative locations or methods may be a relevant matter under s 104(1)(c). Clause 1(b) of Schedule 4 requires an assessment of environmental effects to include a description of possible alternative locations or methods where an activity would result in any significant adverse effect on the environment. This does not extend to requiring a full cost-benefit analysis of alternative locations or methods nor is an applicant required to demonstrate that its proposal represents the best use of resources. ⁹¹⁹  In circumstance where matters of national importance are involved, consideration of alternatives may be required. ⁹²⁰  In relation to a plan change application the Supreme Court recently stated: ⁹²¹

The need for consideration of alternatives will arise from the nature and circumstances of the application and the reasons advanced in support of it. Particularly where the applicant for the plan change is seeking exclusive use of a public resource for private gain and the proposed use will have significant adverse effects on the natural attributes of the relevant coastal area, this does not seem an unfairly onerous requirement.

International obligations

It is a basic tenet of international law that international instruments do not form part of the domestic law unless they are expressly incorporated. ⁹²²  However, international instruments may be relevant considerations under s104(1)(c) with the weight to be given to them dependant on the nature of New Zealand’s obligations under them and the extent to which government policy had indicated how New Zealand’s obligations will be given effect to in its domestic law. ⁹²³

Trade competition

Decision makers are not permitted to consider trade competition (e.g. competition between two supermarket operators) or the effects of trade competition when considering an application for resource consent. The purpose of this is to prevent trade competitors frustrating legitimate activities purely for the purpose of preventing commercial competition. Further restriction on the ability of trade submitters to lodge submissions and appeals are contained in Part 11A of the Resource Management Act. These restrictions do not prevent the decision maker considering wider amenity or economic effects which are not caused directly by trade competition (e.g. the effect a new retail centre may have  on an existing retail centre which contributes to the social and economic wellbeing of a local community). ⁹²⁴

Written approval

The consent authority cannot consider the effect of an activity on a person who has given written approval for an application, unless the approval is withdrawn before the hearing or (if no hearing) before the decision. The RMA does not prevent applicants from compensating affected persons in return for written approvals and the motive for giving approval does not diminish the giving of approval. ⁹²⁵

Irrelevant considerations

The consent authority should not consider:

• the business viability of proposals ⁹²⁶
• The personal circumstances or financial difficulties of an applicant ⁹²⁷
• The cost of a public work ⁹²⁸
• Matters to be considered under another consent (if not bundled) ⁹²⁹
• Private property rights at common law ⁹³⁰
• Past conduct of the applicant (unless s 124B applies) ⁹³¹
• Effects on property values ⁹³²
• Pending legislation ⁹³³
• Sustainability of mineral resources ⁹³⁴

Greenhouse gases

Section 104E was inserted by the Resource Management (Energy and Climate Change) Amendment Act 2004. The legislative policy was to deal with greenhouse gases and climate change on a national basis (rather than locally or regionally), while enabling the positive effects of the use of renewable energy to be assessed locally or regionally. ⁹³⁵

Bundling approach to activity status

A bundling approach is applied to overlapping resource consent applications so that the most restrictive activity status is applied to the entire proposal. ⁹³⁶

However, is not appropriate to apply the bundling approach where:

• One of the consents sought is for a controlled activity or restricted discretionary activity;
• The scope of the consent authority’s discretion is relatively restricted; and
• The effects of exercising the two consents would not overlap or have consequential or flow-on effects on matters to be considered on the other application. ⁹³⁷

Decision by activity status

An application for a resource consent for a controlled activity must be granted although conditions may be imposed over matters over which control has been reserved. ⁹³⁸  There is one exception - a resource consent must not be granted for a controlled activity to be carried out in a protected customary rights area if the activity will, or is likely to, have adverse effects that are more than minor on the exercise of a protected customary right, unless:

• The relevant protected customary rights group gives its written approval for the proposed activity; or
• The activity is one listed in section 55(3) of the Marine and Coastal Area (Takutai Moana) Act 2011 (existing aquaculture, emergency activities, accommodated infrastructure and deemed accommodated activities).

An application for a resource consent for a restricted discretionary activity may be granted or refused. However, a consent authority must only consider those matters over which its discretion has been restricted to (whether in its plan or proposed plan, a national environmental standard, or otherwise). Conditions may only be imposed in relation to those matters which its discretion has been restricted to. ⁹³⁹  Part 2 and section 104 matters are relevant only insofar as they relate to the matters over which discretion is restricted. ⁹⁴⁰

An application for a resource consent for a discretionary activity may be granted or refused. All the matters set out in section 104(1) are relevant to consideration of an application for consent. If consent is granted, conditions may be imposed in relation to any matter. ⁹⁴¹

When an application is made for a non-complying activity the consent authority must first determine whether the section 104D ‘gateways test’ is satisfied – the consent authority may only consider granting consent if it is satisfied that, either:

• The adverse effects of the activity on the environment will be minor; or
• The application is for an activity that will not be contrary to the objectives and policies of the relevant plan and any relevant proposed plan.

If either of the limbs of the test can be satisfied, the consent authority may grant or refuse the consent after considering all the matters in section 104(1). If consent is granted, conditions may be imposed in relation to any matter. ⁹⁴²

The section 104D gateway test

The adverse effects of the activity on the environment will be minor – the test is whether the adverse effects as proposed to be remedied and/or mitigated are more than minor. The threshold test relates to adverse effects and therefore while mitigating factors can be considered, wider beneficial effects cannot. ⁹⁴³  ‘Minor’ is not defined and there is no absolute yardstick for what might constitute a minor effect; whether an effect will be more than minor is a matter of fact and degree. ⁹⁴⁴  It is not permissible to substitute a numeric test (e.g. loss of less than 25% of available industrial land) for the statutory test of ‘minor’. ⁹⁴⁵

The activity will not be contrary to the objectives and policies of the relevant plan and any relevant proposed plan  – the word contrary contemplates being opposed in nature, different, or opposite to. ⁹⁴⁶  An absence of support is not sufficient to meet the test of ‘contrary’. ⁹⁴⁷  The relevant objectives and policies “as a whole” must be considered, however a decision may be based upon a single objective. ⁹⁴⁸  Where there is a conflict between objectives and policies, the specific ones should be preferred over the general ones. ⁹⁴⁹