Limited Notification of a Restricted Discretionary Townhouse Proposal
An application has been lodged with a city council for land use consent to construct 14 townhouse units on a 2,100 m² site zoned General Residential. The proposal is a restricted discretionary activity under the district plan. The proposed building is 11.4 m high (permitted height 10 m), with a density of one unit per 150 m² (permitted 1:250), and includes 18 car parks accessed from a narrow cul-de-sac. The adjoining site to the north is a primary school; its playing field is 6 m from the proposed building and the school's classrooms are 25 m away. The school has not given written approval. A separate neighbour to the east, whose living room window faces the site, has given written approval. The planner must decide whether to publicly notify, limited-notify, or proceed without notification. The district plan's restricted discretionary rule lists matters of discretion including height, density, access, and amenity, but does not identify affected persons.
1. Explain whether the application should be publicly notified, limited-notified, or not notified, applying the relevant tests under the Resource Management Act 1991. Address the school and the eastern neighbour.
Read the worked answer
Start with s95A. Public notification is mandatory for certain activities, including non-complying activities, and may be used where adverse effects are more than minor or special circumstances exist. This is a restricted discretionary activity, so public notification is not automatic. The effects are not confined to the site: an 11.4 m building 6 m from a school playing field, density above the permitted baseline, and 18 cars using a narrow cul-de-sac are more than minor in combination. Even so, the affected population is small and identifiable. The more proportionate course is limited notification under s95B rather than public notification.
Under s95B, if the plan does not identify affected persons, the planner must assess whether the adverse effects on any person are minor or more than minor. The school is plainly affected: shading, overlooking, construction noise, and traffic generated on the cul-de-sac are effects that a reasonable person in the school's position would object to. The school should be limited-notified. The eastern neighbour has given written approval. Under s95B(4), a person who has given written approval in relation to the activity cannot be notified or made a submitter, provided the approval is in writing and covers the effects. The planner should confirm the approval is unconditional and signed before excluding that neighbour.
The planner must also check whether the district plan contains a specific notification rule for this restricted discretionary activity. If the plan expressly precludes notification, that rule governs; otherwise the s95A–s95B analysis applies. The correct decision is limited notification to the school and any other genuinely affected occupiers, with reasons recorded.
2. Assume the application is limited-notified and the school makes a submission in opposition. Outline how the planner should assess the application under ss104 and 104C, and explain what weight can be given to the school's opposition.
Read the worked answer
Because the activity is restricted discretionary, s104C limits the assessment to the matters over which the plan has reserved discretion: height, density, access, and amenity. The planner should not roam across the whole plan or reopen matters that are not within that discretion.
Under s104(1)(a), the planner must assess actual and potential effects. The school's opposition is not itself an effect. The submission must be translated into effects: loss of sunlight, visual dominance, overlooking of the playing field, noise from vehicles and construction, and traffic safety at the cul-de-sac entrance. Under s104(1)(b), those effects must be measured against the plan's objectives, policies, and the restricted discretionary assessment criteria. Under s104(1)(c), the planner may consider other relevant matters, such as the school's safe operation and community wellbeing, but cannot treat opposition as a veto.
The weight given to the school's submission depends on evidence. A general statement that the school 'opposes' the proposal carries little weight. Specific evidence about shading at particular times, or traffic counts showing unsafe queuing, carries more. The planner should test the school's claims against the applicant's expert evidence and may commission a peer review on traffic or urban design. The planner should also consider whether conditions can mitigate the effects within the reserved discretion, for example a taller boundary fence, landscaping, restricted construction hours, or a traffic management plan. The decision must give reasons for accepting or rejecting each contested effect.
3. If the planner decides not to notify the school and grants consent, what recourse does the school have?
Read the worked answer
The school would not have submission rights, because it was not notified and did not make a submission. Under s120, appeal rights to the Environment Court generally belong to the applicant and to persons who made a submission. A person who was not notified cannot ordinarily appeal the grant of consent on the merits.
The school's realistic options are therefore different. It could seek a declaration from the Environment Court under s310 about the interpretation or application of the plan or the notification provisions. It could apply for an enforcement order under s314 if the activity breaches the Act or a plan rule. It could also ask the council to review its notification decision, although the council is not obliged to reopen a granted consent. Judicial review in the High Court is available on process grounds, for example if the planner failed to consider the school as an affected person or acted irrationally, but that is a high threshold and not a merits appeal.
The practical lesson is that the notification decision is critical. If the school is genuinely affected, the planner should limited-notify it rather than rely on later mitigation. The planner should record the s95B assessment in writing so that the decision is defensible if challenged.