Resource consents & the Shirley case

Here is a diagram of the resource consent process.

Here is a discussion of the process of determining if a consent is notified or not.

Determining whether effects are more than minor means applying the 'permitted baseline" ie disregarding effects that are permitted by the plan.

95DConsent authority decides if adverse effects likely to be more than minor

• A consent authority that is deciding, for the purpose of section 95A(2)(a), whether an activity will have or is likely to have adverse effects on the environment that are more than minor—

  • (a)must disregard any effects on persons who own or occupy—
    • (i)the land in, on, or over which the activity will occur; or
    • (ii)any land adjacent to that land; and

  • (b)may disregard an adverse effect of the activity if a rule or national environmental standard permits an activity with that effect.
    
    

This is repeated in section 104(2) when determining whether consent should issue or not:

(2)"When forming an opinion for the purposes of subsection (1)(a), a consent authority may disregard an adverse effect of the activity on the environment if a national environmental standard or the plan permits an activity with that effect."

Here is a detailed discussion of that provision.

The Courts have also determined that existing resource consents, even if not yet exercised, form part of the existing environment under section 104(1): Queenstown-Lakes District Council v Hawthorn Estate

"… the word “environment” embraces the future state of the environment as it might be modified by the utilisation of rights to carry out permitted activity under a district plan. It also includes the environment as it might be modified by the implementation of resource consents which have been granted at the time a particular application is considered, where it appears likely that those resource consents will be implemented."

104Consideration of applications

• (1)When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2, have regard to–

  • (a)any actual and potential effects on the environment of allowing the activity;

Here is a discussion of the Shirley case.