Canterbury Law Review
The enactment of the Resource Management Act 1991 ('RMA') represented a new approach to resource and environmental management, in which the voice of the public would influence many of the decisions made under the Act. However, the right to participate in these decisions is not absolute. Over the years it has also become increasingly qualified and undermined by way of statutory amendment and judicial discretion. This is particularly so in the resource consent process, where the notification regime operates to control, and in most cases to limit, public participation. The vast majority of resource consent applications are not notified, barring the way for participation by members of the public, unless they are considered to be 'affected persons'. Only those who are adversely affected by the proposal are required to be notified.
This article considers the treatment of affected persons under the RMA. It examines the notification regime in the RMA in the context of the participatory ideals behind the enactment of the RMA, and it examines recent judicial decisions that have attempted to define who may be considered an affected person for the purposes of notification. In particular, the opportunities available to community and environmental organisations to participate in the resource consent process will be discussed. These groups can play an important role in representing community, environmental and public interests, yet in light of recent judicial decisions, there is uncertainty as to whether they will constitute 'affected persons' and therefore be able to participate. The potential involvement of these groups, or other parties not directly impacted by a development proposal, is politically contentious and the policy considerations behind both the extension and the limitation of their participation will be discussed. This article considers whether the current approach to affected persons is the most appropriate and effective method and whether changes are necessary. Similar tests under the previous planning regime in New Zealand and also in the Australian jurisdictions of the Australian Capital Territory and Victoria are investigated to determine if they may be of use to resolve the current uncertainty. Possible avenues for reform, that attempt to achieve a balance between the competing interests that make the issue of public participation under the RMA so contentious, will also be identified.
Public participation is an integral element of the RMA. The proposition that increased public involvement in resource management processes results in more informed decision making, and ultimately better environmental outcomes, has been described as a 'founding principle' of the RMA by the Court of Appeal in Murray v Whakatane District Council. Similarly in the High Court decision of Ports of Auckland Ltd v Auckland Regional Council the 'whole thrust' of the RMA was described as favouring interested parties having an input into the decision-making process. The RMA affords a wide scope for public involvement, and a right of participation is available at many stages in the processes it governs. The statutory provisions help to ensure that the ordinary citizen, 'Joe and Josephine Bloggs ... can communicate their views on important matters that affect them and the world around them'. The centrality of this participation is such that the RMA cannot effectively work without it, as it resides at the very heart of its structure and philosophy.
Given the emphasis that has been placed on public participation by the judiciary the purpose that this participation serves in the process must be considered. In the first judgment of the Supreme Court of New Zealand to deal with the RMA, Westfield (New Zealand) Ltd v North Shore City Council, Keith J described the objectives of public participatory processes as being twofold.
The first objective he identified is the recognition and protection, as appropriate, of the particular rights and interests of those affected and more general public interests. A wide array of rights and interests are affected by decisions made in the sphere of resource management. The most obvious of these are the absolute rights of use and enjoyment of the property one owns, as conferred by the common law. Resource management and environmental law essentially regulate these private rights in the public interest, curtailing the right to deal with one's land in order to achieve broader public objectives. This regulatory intrusion into private land use and development was held by the Court of Appeal to be 'by far the most drastic erosion of the rights of property owners'. Public participation can act as a constraint on the excesses of regulation by central and local government, and can help to ensure that the rights of property owners are recognised and are not unjustifiably restricted. For example, the ability to participate in the formulation of district plans provides property owners with a means of influencing decisions made as to restrictions placed on land use in their area. More generally, a right to participate in decisions that affect a person's interests is an important legal and social right. Bayles has argued that 'an opportunity to be heard affords a person dignity and respect'.
The second objective described by Keith J is the enhancement of the quality of decision-making. Participation may reduce 'error costs' as a member of the public may contribute important relevant information that otherwise would not come to the attention of the decision maker. This was reflected in several judgments in the Supreme Court decision of Westfield (New Zealand) Ltd v North Shore City Council. It was held that better substantive decision-making would result as decision makers would be more fully informed of the factors involved and the potential impacts of any decision made. The Court of Appeal adopted similar reasoning in the case of King v Auckland City Council, a case concerning a challenge to the non-notified grant of a resource consent for the construction of a dwelling. In this case it was emphasised that decision makers should be wary of making assumptions as to the likely nature and extent of potential adverse effects without the benefit of the views of those who may be affected. The Ministry for the Environment has asserted that the RMA is premised on the assumption that environmental decision making is improved when the views and preferences of the community are considered.
The centrality of public participation to the RMA has meant that the public has been afforded wide scope for involvement in decisions made under the Act. At a national level, public participation is relatively extensive. Pursuant to s 50 of the RMA any person can make a submission to a board of inquiry about a proposed national policy statement and has a right to be heard at any hearing held in respect of that matter. Furthermore, if the Minister for the Environment exercises his or her powers under Part six of the RMA to call-in a nationally significant resource consent application for central government consideration then any member of the public is entitled to make a submission.
At both regional and district level opportunities to participate in the preparation of planning documents are also available. The First Schedule of the RMA details the process involved in preparing regional policy statements and regional and district plans. Pursuant to this, any person may make a submission to a local authority on the proposed policy statement or plan that is publicly notified in accordance with the RMA. There is also a second opportunity to participate through the right to make a submission in support or opposition to any original submission. All those who make submissions have a right to be heard at a public hearing, and a right to refer the matter to the Environment Court.
However, the rights of participation in resource consent decisions are more discretionary and turn on the question of notification. Any person can make a written submission in support or opposition to an application that has been publicly notified, and has a right to be heard at any hearing on the matter. Furthermore, any person can make a submission to a consent authority where he or she has been served notice of the application under s 94(1). However, the decision whether to notify an application involves an element of 'gate keeping' on the part of the local authority as it determines the rights of individuals vis-à-vis the ability to participate in the resource consent process. If a decision is not notified, the ability of the general public to participate is greatly restricted. Further consideration will be given to the exercise of this discretion by consent authorities, and the implications of this discretion, later in this article.
It is important to note that there is another avenue of participation in these decisions. Under s 274 of the RMA members of the public are given the right to join as a party to an appeal before the Environment Court provided they can demonstrate an interest in the application which is greater than the interest of the public generally, or that they represent a relevant aspect of the public interest.
The RMA also gives individuals a right to participate in its enforcement regime. Subject to some minor limitations prescribed by Part 12, any person can apply to, and be heard by, the Environment Court, for a declaration or an enforcement order. Any person can also lay an information in respect of an offence committed in breach of the RMA. In addition to involvement in the enforcement regime, pursuant to Part 8 any person can make a submission and be heard at the hearing in respect of designations or heritage orders. A general right of appeal against the outcome of these hearings exists also.
However, while the public is given numerous opportunities to be involved in decision making under the RMA, this participation is not all encompassing. There are numerous circumstances where the ability to participate is circumscribed, either by statute or the exercise of judicial discretion. This is particularly so in respect of resource consent decisions where the notification regime operates to reduce the level of participation.
Since the enactment of the RMA the administration of the discretion to dispense with the notification of applications has been the subject of a number of high profile judicial review decisions. The requirements of notification are detailed in Part four of the RMA.
Under the RMA full notification involves two key processes. First, an application will be publicly notified by a notice published in the prescribed form in a newspaper circulated in the entire area potentially affected by the application. In addition, notice must be served personally on all persons prescribed in regulations made under the RMA. Resource consent applications must be notified in this way unless the application is for a controlled activity or the consent authority is satisfied that the adverse affects of the activity on the environment will be minor, and notification must be done within 10 working days of receiving the application. If an application is publicly notified, any person can make a submission to the consent authority in support of or opposition to the application. The consent authority also has a discretion under s 94C to publicly notify any application if 'special circumstances' exist, regardless of whether the adverse effects are minor. 'Special circumstances' are not statutorily defined, however Elias J held in Murray v Whakatane District Council that special circumstances will be circumstances that make notification desirable. A high threshold must be met. If they are deemed to exist, an opportunity to participate is bestowed on individuals and bodies who would otherwise be excluded due to nonnotification.
Whilst the High Court has acknowledged that the 'whole thrust of the Act favours interested parties to have an input into the decision-making process', the vast majority of applications are not publicly notified 'shutting out' many people from participation. The Ministry for the Environment reported in 1999 that between 1997 and 1998 95 percent of applications were non-notified, and this figure remains representative of the situation today.
The deprivation of the right to participate is a serious consequence that flows from the decision not to notify and this has been recognised at the highest level. Thus, in making notification decisions a balancing act is necessitated as acknowledged by Tipping J in Westfield (New Zealand) Ltd v North Shore City Council:
The statutory policy inherent in the non-notification regime involves a balance between the interests of applicants and the public in having uncontroversial applications dealt with promptly and without the additional expense of notification and the rights of public participation which the Act prima facie affords. Reconciliation of the competing interests in harmony with the policy of the Act suggests that in cases of any real doubt the application should be notified.
If an application is notified, and participation is accordingly allowed, this will often have significant implications on the pace of the application and the associated expense. Therefore, it is in the interests of the applicant, where their proposal would arguably cause a lower level of impact, to try to demonstrate to the consent authority that the potential effects of the activity will be no more than minor in order to avoid public notification and the associated expense, delay, and uncertainty of potential appeals by submitters to the Environment Court.
However, the Court of Appeal has warned that care should be taken by consent authorities before they remove a participatory right of persons who may, by reason of proximity or otherwise, assert an interest in the effects of the activity proposed by an applicant on the environment generally or on themselves in particular. In considering the numerous judgments of the courts that deal with notification, Palmer has argued that they 'beat the same drum', emphasising the importance of public notification to RMA participatory ideals. Accordingly, the power to dispense with notification must be exercised carefully and with consideration of the consequences upon those who will be denied the right to participate if the decision not to notify is made. However, it has been acknowledged at the highest level that as a matter of common sense and practicality it would be 'quite inappropriate' to require all applications to be notified.
The consequences of the decision not to publicly notify have been remedied to some degree by the 2003 amendments to the RMA which created the mechanism of limited notification. Under this mechanism, if public notification is not required under s 93 the consent authority must still serve notice of the application on all persons who, in the opinion of the consent authority, may be adversely affected by the activity unless all have given written consent to the application. These persons will accordingly have a right to make a submission to the consent authority on the application. Limited notification provides a 'halfway house' in terms of public participation in the resource consent process. Palmer perceives this statutory mechanism as a pragmatic recognition of both the volume of relatively insignificant and minor resource consent applications that are made each year, as well as the questionable decisions against public notification that have been made by consent authorities in the past.
A useful example of the latter type of decision is the case of Urban Auckland— Society for the Protection of Auckland City and Waterfront Inc v Auckland City Council. In this case the Auckland City Council granted resource consent on a non-notified basis to build a 36-story building in central Auckland. The plaintiff sought judicial review of the decision not to notify, contending that a development of that scale, in such a central, public, prominent and historic location, required a public process. The High Court found that the council had failed to pay adequate attention to the design and size of the tower block which was of such potential scale as to warrant a more careful assessment. The decision not to notify was held to be unreasonable because the council lacked full information from which to make a fully reasoned decision as to the potential effects of the development. Therefore, the council was directed to reconsider its decision. The Court held that if the consent was allowed to stand the developer would obtain the right to construct one of the largest buildings in central Auckland without the application undergoing the public scrutiny the RMA 'contemplates as normal'.
Partial notification, to only those persons who may be adversely affected by the application, appears at first glance to be an effective compromise between full notification and none at all. Only those who are served notice of the application can lodge a submission and participate in the hearing, and thus participation is limited to those with a direct interest in whether the application is granted. In its 2005 review of the new limited notification provisions, the Ministry for the Environment emphasised that the provisions operate to limit the ability of other persons who are not affected by a proposed development to unnecessarily influence the outcome of the development. Following consultation with 12 territorial authorities from throughout New Zealand the Ministry concluded that the average cost of limited notification was significantly lower than full public notification and improved average processing times.
However, the usefulness of the limited notification regime in providing clarity is undermined by doubt as to who is required to be notified. The Ministry for the Environment acknowledged this uncertainty and the associated concerns of local authorities in its 2005 review. The composition of the group of'affected persons' has also been hotly contested in the courts. This contention will be considered in the next section of this discussion.
The question of whether a party constitutes an 'affected person' for the purposes of notification is key to the level of participatory rights they will enjoy. If an individual or group cannot fit within this term then they will only be able to make submissions on publicly notified consent applications. However, despite the importance of the term it is not statutorily defined. Instead the question of whether a person is adversely affected by an application is left to the discretion of the consent authority, with some limited guidance provided in the RMA.
Section 94B provides a number of factors that the consent authority must take into account when forming an opinion as to who may be adversely affected for the purposes of notification. First, the consent authority must have regard to relevant statutory acknowledgements made to Maori tribes in the various Claims Settlements Acts listed in sch 11 of the RMA. Another factor that will be relevant is the permitted baseline test. Pursuant to s 94B(3) a person may be treated as not being adversely affected if, in relation to the adverse effects of the activity on the person, the relevant regional or district plan permits an activity with that effect. However, this is not a mandatory consideration and the consent authority has the discretion to find a person is adversely affected despite the fact that such an effect is allowed in the relevant plan. Furthermore, 94B provides that a person may not be treated as adversely affected if either: the activity concerned is a controlled or restricted discretionary activity and the relevant plan does not reserve control or discretion in respect of the relevant effect; or if it is unreasonable in the circumstances to seek the written approval of that person. While it is unclear as to what circumstances will make obtaining written approval unreasonable, Kirkpatrick has speculated that it will probably include circumstances where a person cannot be located or contacted, or where there are a large number of people who are adversely affected but only to a very limited extent. The final statutory guideline as to who may be adversely affected is found in s 94B(4) and follows the controversial enactment of the Foreshore and Seabed Act 2004. Pursuant to this section the holder of a customary rights order under the Foreshore and Seabed Act 2004 must be treated as being adversely affected if, in the opinion of the consent authority, the grant of resource consent may adversely affect the recognised customary activity.
However, this statutory guidance has proved of limited use in practice beyond the specific circumstances it contemplates. The question of who will constitute an affected person under the limited notification regime has largely been unanswered, and has been left to the discretion of the consent authority in each individual case, constrained only by the general administrative law requirement that such a discretion must be exercised reasonably. In 1997 it was reported that the types of factors consent authorities tended to take into account in determining who was affected by an activity included the provisions of the relevant regional or district plan, observations made from site inspections, the scale of the activity, the existence of organisations with previous involvement in the issue, experience and local knowledge, and the applicant's perceptions as to who would be affected.
Essentially the issue arises because of the difficulty in drawing a definitive line as to who will constitute an affected person that can be routinely applied by the relevant consent authority. The difficulty in drawing such a line was acknowledged by the Court of Appeal in the case of Discount Brands Ltd v Northcote Mainstreet Inc. In delivering the judgment of the Court, Hammond J stated:
The short points ... are that the planning process at local authority level in New Zealand has never been fully participatory; and the question of where to draw the line for participation has never been capable of being reduced to bright line rules.
The Ministry for the Environment has made some attempt to define this group, but has failed to draw a clear line. In its Everyday Guide to the RMA, the Ministry defines an affected person as 'a person, or a group of people, who the council thinks will experience an effect generated by the proposed activity that will be significantly greater than or different from the effect on the general public'. This definition casts a wide net. Examples given in the guide include a neighbour whose privacy is affected by the construction of a sleep out on a neighbouring property, a sailing club whose use of a river would be affected by a proposed jetty extension, or a community group whose interests in protecting a nature reserve could be affected by a road-widening scheme. This approach to affected persons has not been adopted by either consent authorities or the courts.
The position is particularly unclear in the case of community and environmental groups. In introducing the Resource Management Amendment Bill (No 2) in 2003, which contained the new limited notification provisions, Marian Hobbs, the Minister for the Environment, was careful to emphasise that residents' associations and other community groups would be considered affected parties for the purposes of these provisions. However, it is debatable whether her stated expectation that local authorities should notify community groups when consent applications bear upon those groups' reasons for being has been borne out in practice.
Initially the courts advocated a broad and liberal approach to the question of whether community and environmental groups could constitute affected persons for the purposes of the RMA. For example, in the case of Quarantine Waste (NZ) Ltd v Waste Resources Ltd judicial review was sought of a decision by the Manukau City Council to allow an application for land use consent for a waste incinerator to proceed on a non-notified basis. In considering whether the plaintiff had standing to apply for judicial review of the decision, it was held by Blanchard J that a liberal approach should be adopted in determining who is adversely affected in a matter when an environmental concern is being raised. Blanchard J considered that such an approach was appropriate because otherwise groups representing the public interest, whose status had been recognised in planning cases for a number of years, could be precluded from appearing on behalf of the community in general. This liberal approach to the determination of who constitutes an affected person is supported by the Ministry for the Environment and has been followed by some councils. In its 2005 review of the limited notification procedures the Ministry for the Environment reported that seven of the 20 councils surveyed had served notice of an application for resource consent on a community or environmental group as part of limited notification and eight had served such a notice on an iwi group.
However, this liberal approach to community and environmental groups has not been maintained. Despite Ministry for the Environment assurances that the test for 'affected persons' will be wide and will not unduly restrict participation on the part of community and environmental groups, recent court decisions have appeared to move away from this more open stance.
The Discount Brands decisions have made significant headway into considering who will constitute an affected person for the purposes of notification. However, they have offered conflicting tests. The tests proposed by the Supreme Court in 2005 and Lang J in the High Court in 2006 and the implications they hold for community and environmental groups are considered below. First, the background to these high profile and controversial decisions is considered.
In 2003 the North Shore City Council granted resource consent to Discount Brands Ltd to establish a discount retail outlet located outside the retail centres identified by the district plan. The council made the decision to grant consent on a non-notified basis on the ground that it was satisfied that the adverse effects on the environment of granting the resource consent would be minor. This was the statutory precondition of s 94(2)(a), the governing statutory provision at the time. It is important to note that these events took place before the limited notification regime in 2003. From the economic and retail information supplied by Discount Brands, the Council was satisfied that the proposal would not generate social or economic effects on existing or proposed retail centres because of the unique nature of the discount outlet centre. It would offer goods in a different economic market than the existing centres, and so would operate to complement them.
The decision made by the consent authority was challenged by an application for judicial review lodged in the High Court by Westfield (New Zealand) Ltd and Northcote Mainstreet Inc. These organisations claimed to be adversely affected persons under s 94 of the RMA, from whom written approval had to be obtained before a decision not to notify could be made. Westfield owned the nearby Glenfield and Takapuna shopping centres. Northcote Mainstreet was an incorporated body set up to protect and enhance the Northcote shopping centre which is located approximately 1.5 kilometres from the Discount Brands site. Northcote Mainstreet was a community-based organisation comprising business owners and tenants of Northcote shopping centre and local community representatives. Its functions included organisation and management, the physical enhancement of the centre, economic development of the businesses in the centre, and the marketing and promotion of those businesses. At the time the resource consent was granted the incorporated status of the organisation had been allowed to lapse.
In the High Court Randerson J declared the council's decisions to be invalid and set aside the council's non-notification decision and consequentially the grant of the resource consent. This decision was based on the finding that the consent authority had failed to sufficiently inform itself of the potential adverse effects on other shopping centres on the North Shore before making the decision not to notify. Discount Brands appealed this decision and Northcote Mainstreet lodged a cross appeal from Randerson J's finding that it was not an 'affected person' for the purposes of the RMA.
In considering the 'vexed' question of when a consent authority can appropriately dispense with public notification, the Court of Appeal noted the concern that was held over the issue at the Bar, in local authorities and in Parliament. The Court came to the view that Randerson J's decision should be reversed, the practical outcome of which was that the non-notification decision of the council, and thus the grant of resource consent, was reinstated. It was found that the decision not to notify was a decision that a reasonable consent authority could reach on the basis of the information before it, and Randerson J had taken a more vigilant approach to judicial review than was appropriate in that case. Furthermore, the cross appeal as to the status of Northcote Mainstreet was dismissed on the basis that as the incorporated status of the group had lapsed at the relevant time, it did not exist as a legal entity and could not be considered an 'affected person' for the purposes of the RMA.
With leave Northcote Mainstreet and Westfield appealed to the Supreme Court, the first time in which the RMA had been considered by New Zealand's highest court. The central issue for determination by the Court remained the decision made by the consent authority to process the resource consent application on a non-notified basis. In deciding this issue the Supreme Court found it was required to consider the way in which the non notification decision had been made, whether Northcote Mainstreet was an affected person, and the validity of the conditions on which the consent was granted.
The Supreme Court allowed the appeal and restored the order of the High Court; setting aside the resource consent. However, before the Supreme Court heard the appeal Discount Brands lodged a new application for another resource consent in respect of the outlet. The council appointed a panel of three commissioners to determine the application who, on the basis of further information, decided that this second application could also be determined on a non-notified basis. The commissioners were satisfied that the adverse effects on the environment would be no more than minor and that Northcote Mainstreet was not a person likely to be adversely affected by the proposed activity. Therefore, they granted consent. Northcote Mainstreet and Westfield challenged this decision contending that the application ought to have been publicly notified because the adverse effects of the activity on the environment were likely to be more than minor. They also contended that Northcote Mainstreet was an affected person from whom consent ought to have been obtained, or to whom notice should have been served.
The case on the second application was heard in the High Court under the notification provisions as substantially amended by the Resource Management (Amendment) Act 2003. The application was dismissed on the basis that the information before the consent authority was sufficient to justify the decision to proceed on a non notified basis and to reach the determination that the effects of the activity on the environment would be no more than minor. The decision was held neither to be unreasonable nor in breach of any statutory duty. Furthermore, Northcote Mainstreet was not considered to qualify as a 'person adversely affected' who should have been notified under the limited notification regime.
The Supreme Court and High Court judgments, the former being made under the pre-2003 notification provisions and the latter under the new limited notification regime, are fundamental to the consideration of the meaning of the term 'affected persons'. Both judgments considered the issue at length, and offer differing interpretations as to the constitution of Northcote Mainstreet. The uncertainty that has resulted has serious implications on the consistency of subsequent notification decisions made by consent authorities, particularly in respect of community and environmental organisations that consider themselves to be affected parties.
Although the meaning of affected persons was not determinative of the ultimate decision in the Supreme Court, which centred more on the adequacy of the information on which the consent authority based its decision, its consideration of the term will arguably prove of equal if not greater influence in the resource management field. A continuum of approaches can be identified in the judgments of the five Judges.
Blanchard J, upon whom both Keith and Richardson JJ relied, considered that the requirement to obtain the written approval of affected persons, as required by the previous notification regime, was intended to protect landowners and occupiers who could particularly suffer adverse affects from the proposed activity. He emphasised that the adverse effects must be environmental in nature, 'for the Act simply does not regulate activities generating only non-environmental effects'.
Blanchard J held that a proprietary right was essential to constitute an affected person, and noted that Northcote Mainstreet was neither a property owner nor a tenant at the Northcote shopping centre. While the property interests of those of its members who were retailers at the centre could be capable of being adversely affected, their representative body, with no property rights or interests itself, could not suffer such adverse effects. Reference was made to the case of Edwards v Legal Service Agency, in which it was held that 'a body like a ratepayers' association does not own the land of its members and does not claim the benefit of their personal rights'. While Blanchard J acknowledged this represented a restrictive approach to affected persons, he argued that to give it a liberal interpretation and extend it beyond landowners and occupiers who may suffer direct and minor environmental effects would present applicants and consent authorities with very real difficulties in identifying those who might possibly be adversely affected. Blanchard J's judgment, which is considered to be the leading judgment of the decision, presents a very limited definition of affected persons. Requiring a proprietary interest will significantly limit the number of individuals and groups who can claim to be adversely affected by an application.
In delivering his judgment, Tipping J took a different approach to the meaning of affected persons. He questioned whether the 'door should not unconditionally be shut' on adverse effects beyond those which directly affect proprietary interests. He concluded that while Northcote Mainstreet had no proprietary interest itself, it could be treated as the alter ego of its
members. According to Tipping J's approach to affected persons, a body of persons should be regarded as being capable of being adversely affected if at least one of its members has a proprietary interest. Allowing Northcote Mainstreet to represent the interests of its members in this way was in accordance with the policy reasons behind the expansive definition given to 'person' in the RMA, being the cost implications of requiring individuals to participate in resource management issues in their own right. In his view, Northcote Mainstreet should be regarded as being capable of being adversely affected, albeit indirectly, and should have been afforded the right to participate. The extension of affected persons to those groups indirectly affected through the proprietary rights held by members goes further than Blanchard J's restrictive interpretation.
However, Elias CJ moved away from the reliance on proprietary interests, whether direct or indirect, in her analysis. She emphasised that the RMA provided no basis for the view that a person can be adversely affected only in relation to a property interest, arguing that such an approach was inconsistent with the wide definition of 'environment' and the policies inherent in Part two of the legislation. She argued that the North Shore district plan envisaged a role for community organisations in advocating for the amenity values represented by existing centres. As such, a society which is set up to protect the amenity values of such a centre was held to be a person capable of being directly affected by a proposal to set up a new shopping outlet outside the existing centres. Northcote Mainstreet had been set up to promote the amenity values of the Northcote Shopping Centre, an advocacy role contemplated by the plan, and as such it was capable of being adversely affected by any loss of the centre's amenity values. Therefore, Elias CJ's approach to affected persons is broader, encompassing a wider range of individuals and groups who may not be able to point to a direct effect on a property interest.
The meaning of 'affected persons' was left in some degree of doubt after the Supreme Court judgment. While the Court endeavoured to consider the meaning of the term, and how it applied to community and environmental organisations like Northcote Mainstreet, the fact that three different approaches are found in the decision limits its usefulness. Palmer has suggested that a single judgment would have been more useful in providing clarity in this area of the law. It is arguable that the Supreme Court perhaps missed its chance, and it has been said that perhaps it would have been better if a consideration of 'interest' and how a person may be 'affected' had awaited a case where it had 'percolated' rather than being addressed instantly as in this case. Kirkpatrick has pointed to the omission in the judgments of any reference to a particular non-proprietary interest that is expressly recognised in the RMA, that of the relationship between Maori and their ancestral lands. Blanchard J's approach has particularly significant implications because of its emphasis on direct proprietary interests. His approach would arguably work to exclude any type of community group that does not have any rights of ownership or occupation, for example a sailing club regularly using the coastal marine area or Maori groups with a cultural, but not necessarily a legal, association with the land potentially adversely affected.
In considering the application for judicial review of the decision to not notify the second application and the grant of resource consent, the High Court was also faced with the difficult task of determining whether the meaning of 'affected persons' encompassed community organisations like Northcote Mainstreet. This task was in the context of the new notification provisions enacted in 2003. Northcote Mainstreet contended that the Supreme Court's finding should be restricted to the statutory language of ss 93 and 94 before their amendment. As amended, the notification provisions no longer make reference to adjacent owners or occupiers, or that people should be directly affected. Northcote Mainstreet argued that this change in wording signified an intention by Parliament to extend the scope of the meaning of affected persons to include persons with broader interests, such as community groups.
Lang J considered the impact of this legislative amendment upon the Supreme Court's interpretation of 'adversely affected'. He made reference to the case of Progressive Enterprises v North Shore City Council, in which Baragwanath J noted that the change in statutory wording impacted the phrase's meaning. Lang J agreed with this point, commenting that the Supreme Court's restrictive interpretation should be revisited in light of the new amendment. He considered that in order to qualify as a person capable of being adversely affected under the new provisions, that person must have the potential to be adversely affected by the proposed activity, either directly or indirectly. He rejected the proprietary interest test advocated by Blanchard J, stating that eligibility was not necessarily derived from ownership or occupation of adversely affected and proximate land, although this will often be the case. Like Blanchard J he emphasised that only those people adversely affected in an environmental sense will be eligible.
In rejecting a proprietary interest test for affected persons, Lang J adopted a test based on the functions of the body. He rejected Tipping J's assertion that Northcote Mainstreet could be viewed as the alter ego of its individual members, and argued that the functions of the body were entirely separate from those of the individual businesses. Because Northcote Mainstreet had no participatory role in the management or functioning of the businesses it could not claim to have an interest in them, whether direct or indirect. Furthermore, Lang J rejected Elias CJ's argument that because of the organisation's advocacy role regarding the amenity values of the shopping centre it would be directly affected by any change to this amenity. He commented that while Northcote Mainstreet promoted itself as a body interested in the amenity values of the centre, this did not necessarily mean that it would be adversely affected itself.
Therefore, Lang J's approach to affected persons is based on the premise that organisations will be adversely affected only if they are functionally affected. There are two elements to this requirement. First, they must be able to point to a function that has the potential to be adversely affected by the proposed activity, and second this function must be externally defined. In respect of the first element of this test, Lang J held that Northcote Mainstreet's functions of the organisation and management of the centre, and the marketing and promotion of its businesses would not be affected in any way by the establishment of the outlet centre. Moreover, it would not be affected, in an environmental sense, in any way. It had no ability to experience either the amenity values of the centre or the adverse effects upon them.
The second element of the functionally affected test is the requirement of external definition. Lang J emphasised that Northcote Mainstreet was voluntarily established, with self-promulgated functions, obligations, and objectives. Such an organisation can be contrasted with an entity that has an interest or right endorsed, created, or recognised by an external source. External definition could be by way of a legal proprietary interest, a use or access right recognised by a regulatory body, or a contractual right. Northcote Mainstreet had no such right or interest, and relied on its own assertion to establish its interest in the matter.
A useful illustration of an application of this test is found in the decision of Progressive Enterprises Ltd v North Shore City Council. In a judgment released the year before Lang J's decision in Northcote Mainstreet, Baragwanath J applied a test based on function, which had been alluded to by Blanchard J in the Westfield (New Zealand) Ltd Supreme Court decision. In Progressive Enterprises it was held that Transit, the statutory roading authority, was a person directly affected by an application for consent to the building of a supermarket which had been granted on a non-notified basis. Transit's key function, to operate the state highway system, was clearly affected by the potentially significant traffic generation created by the supermarket. Furthermore, this function was externally defined by s 75 of the Land Transport Management Act 2003.
This represents a substantially different approach to those advocated by the Supreme Court, however, it is arguably no less restrictive. By requiring externally defined functions or interests to be potentially affected, many community-based organisations would necessarily be excluded. Lang J has argued there are important policy based reasons behind such a restrictive approach. If any individual or body with a self-proclaimed interest or concern was included in the definition then it would burden the consent authority with the difficult task of identifying and predicting all affected interests where there were no clear or external indications to rely on. In exercising the balancing act between protecting the rights of interested persons and ensuring administrative efficiency the consent authority must be able to identify these persons. Lang J considered that if the ambit of those persons who could be adversely affected was widened to include community bodies such as Northcote Mainstreet this would 'exponentially' increase the administrative burden on consent authorities. Moreover, a floodgates problem potentially arises. If a more liberal interpretation was applied to affected persons then it could open the door to 'potentially limitless' judicial intervention in notification decisions, which in turn would hinder and delay the consent process.
The ability of community and environmental organisations to participate in the resource consent process has clearly become more precarious in light of these judicial decisions. There has been a lack of consistency between the judicial interpretations of who can constitute an adversely affected person. Furthermore, those approaches that have been applied have been restrictive in nature. Tests based on either proprietary interests or externally defined functional interests would likely operate in practice to exclude most of these organisations. The implications of this are significant for both aspects of the balancing process inherent in the notification regime. This exclusion would limit the ability of certain interested parties to participate in non-notified applications under s 94 of the RMA, but it would also be likely to increase efficiency and reduce delays in the consent process.
It is arguable that the exclusion of community and environmental organisations in this way fails to adequately recognise the necessary public function they can serve in resource consent processes. Many individuals lack the expertise, financial resources, and time needed to participate in decisions made under the RMA. The cost implications for individuals of participating in their own right was recognised by Tipping J in the Supreme Court, and constitutes a significant obstacle to public participation. The Coromandel Peninsula Watchdog group has famously described the RMA as providing a 'legal slaying field' in which resource management decisions are made in favour of those with the largest financial resources, and thus greater expenditure on lawyers and expert witnesses to defend their stance. Community and environmental groups, in which the available resources of individuals and businesses may be combined, can accordingly serve a necessary public function by participating in resource consent decisions and raising genuine resource management issues for in depth consideration that would otherwise not occur. Palmer has commented that expectations at the time of the enactment of the Environment Act 1986 that the Commissioner for the Environment could perform a comprehensive and nationwide audit function have not been met, largely due to funding difficulties. Community and environmental groups can arguably perform a similar function.
Furthermore, organisations representing community, environmental, and public interests can play an important role in planning in general, as discussed by Gunningham and Grabosky in their discussion on the design of environmental policies. They can perform an important general educative function, by placing environmental issues on the public agenda and attracting public and government attention to issues and viewpoints that would not otherwise be heard. They can provide an important source of information for decision makers as to community views on a particular policy or proposal, identifying and explaining the potential impacts on the community or the environment. This allows decisions to be made on a more informed basis. Furthermore, they can perform a watchdog function, identifying and publicising shortcomings in the implementation of policies and the decisions made by government authorities at the various levels. An analogy can be drawn between these functions and the exercise of participation rights by such organisations in resource consent processes.
However, there are also negative implications of allowing wider rights of participation for community organisations in resource consent applications. Commentators have often questioned the motives behind organisations seeking to be heard in opposition to applications. These motives will sometimes be premised on self-interest rather than those of the public, the community, or the environment. Claims may be brought to protect the property interests or trade position of the members of the organisation. Lang J took such a view of Northcote Mainstreet in delivering his judgment. He opined that the organisation was not motivated to bring proceedings because of its altruism, or self-appointment as a defender of the public interest. Essentially they saw the outlet centre as a competitor and so had a vested interest in preventing, or at least impeding, its operation. This point was also raised in Quarantine Waste (NZ) Ltdv Waste Resources Ltd. In this case Blanchard J emphasised that such organisations will often leap to represent a point of view that does not require such a champion, 'particularly a plaintiff who is concealing a business or economic motivation within the cloak of environmental concern and seeking to do battle on behalf of those who appear not to wish combat to occur'.
The risk of capture by groups motivated by self interest is compounded by the risk of vexatious litigants. In a speech to the New Zealand Institute of Management, Fisher, a lawyer specialising in resource management, lamented the way in which objectors can 'unduly and unreasonably hold up consent'. The case ofPokeno Kaitiaki Society Inc v Franklin District Council provides a useful illustration of this problem. Laurenson J rejected the society's appeal against the grant of consents for a quarrying operation, commenting that he could see no reason for the appeal other than to embarrass the other parties and delay the implementation of the proposal. The appeal was rejected as being 'frivolous' and an abuse of process. In Fisher's view it is imperative that 'busybodies', vexatious complainants and those who object for the sake of objecting, as well as new groups set up to oppose a particular project, are excluded from participation.
Finally, it is important to approach suggestions of extending public participation in resource consent applications with a degree of realism. While wide rights of participation can improve access to environmental justice and arguably help to ensure decisions are made on the basis of fuller information, at some point the necessity of efficiency and expediency must be recognised. Applicants for resource consent can already face significant delays in having their applications processed. The limited notification provisions were enacted to improve expediency by ensuring that if the written approval of all affected persons could not be obtained, public notification and the associated delays could be avoided. However, if the scope of persons who must be notified under the limited notification procedures is broadened too far this objective of efficiency will be undermined. This would be an unacceptable outcome.
In considering the implications of widening the scope of notification it is important to recognise that the notification regime already represents a significant and deliberate policy trade-off. Where non-notification and limited notification are sanctioned, this represents a choice on the part of the framers of the RMA to limit public participation where the adverse effects of the proposed activity are minor. However, where the adverse effects will be more than minor, open standing to participate is bestowed by way of public notification and this issue does not arise. Individuals and community and environmental groups all have an opportunity to participate in resource consent applications for which there are more than minor adverse effects. The RMA is an effects-based statute, focusing on the control of adverse effects on the environment rather than the control of activities, and the limitation of participation where only minor adverse effects are likely is in line with this focus. The present notification regime therefore represents a balance between competing interests. This trade-off needs to be kept in mind when considering how best to resolve the current uncertainties regarding affected persons.
Before the enactment of the RMA, participation in resource management decisions was dependent on whether the individual or group had standing to initiate and participate in proceedings. The requirements of standing, or locus standi, were highly controversial and subject to significant statutory change. Williams has emphasised that standing was of crucial importance to environmental law at the time because the existence of statutory remedies would be of 'no consequence if procedural obstacles prevent their use'. However, as environmental law at the time was governed by a plethora of statutes and institutions the tests to be applied varied throughout the statutory scheme. For the purposes of this discussion it is useful to consider the tests that were applied to determine whether individuals or groups had a sufficient interest in the proceedings to determine standing. These tests may provide guidance as to how best to approach the affected persons test under the current legislative provisions.
Under the Town and Country Planning Act 1953 ('the 1953 Act') arestrictive approach was applied to standing. Litigants who did not have a specific personal interest were barred by statute from participating. Standing was restricted to owners and occupiers of land that was affected, a requirement of a proprietary interest not dissimilar from Blanchard J's test in Westfield (NZ) Ltd v North Shore City Council. While standing was wider in terms of objections to proposed district schemes and other planning documents and extended beyond owners and occupiers, those endeavouring to intervene in planning consent decisions on public interest grounds were excluded. In the decision of Highland Park Progressive Association (Inc) v Barry-Martin and the Wellington City Corporation the Court emphasised that rights of objection to planning decisions were conferred on a much narrower class. The residents association in that case was held not to be a person affected as the statutory test did not extend standing to organisations or societies associated for any purpose of public benefit or utility. Similarly, the Royal Forest and Bird Protection Society was held not to have standing to object to a proposed saw milling operation in Westland in the case of Royal Forest and Bird v Paynters Sawmill. Despite Casey J acknowledging that it seemed desirable in the public interest for the organisation to have a say in a decision with such large implications for conservation in the region, the clear statutory language necessarily excluded them. In addition, the Town and Country Planning Appeal Board held in 1973 that the Environmental Defence Society could not object to a consent for change of land use because it did not own any land or have any existing operations or rights that were likely to be affected by the proposal. Moreover, the proposal was held not to directly affect the property rights or operations of any of its individual members. This approach is in line with Tipping J's ruling that a society could act as an alter ego of its members. Furthermore, the consideration of whether the operations and activities of a society would be affected by the proposed activity is similar to the functionally affected test of Lang J.
This restrictive approach of the 1953 Act was often criticised, by both the judiciary and commentators, who argued that the 'law is littered with cases where responsible and worthy litigants' were denied standing. The Town and Country Planning Act 1977 ('the 1977 Act') extended the right of objection to any person or body 'affected' or representing 'some relevant aspect of the public interest'. This change was hoped to amount to recognition by Parliament that 'in the end, full rights of objection and appeal in environmental issues may be to the advantage of the administration as well as the individual'. Effects to proprietary interests were no longer required. To constitute a person or body affected under the new regime, Robinson suggested that they had to establish that:
... if the application is granted they will be affected or are likely to be affected in some appreciable degree greater than or manner different from the degree or manner in which the general public will be affected.
An interest greater than that of the public was required because if Parliament had intended every member of the public to have a right to object 'it would ... have said so'. To illustrate the application of this test, in the case of Zwartz v Wellington City Council, the appellant was held not to have an interest greater than the public generally. The application for consent in that case was for a large office and car parking building close to a park where the appellant regularly spent his lunch hour. He claimed the building would detrimentally affect the amenities of the park because of shading. Davison CJ held that he was merely one of a large number of people who regularly used the park and thus would not experience any effects different from those experienced by the general public.
It is interesting to note that this dual requirement under the 1977 Act that a person or body must be affected in a manner greater or different that that of the public generally, or represent a relevant aspect of the public interest, is similar to the present requirements for standing to join appeals in the Environment Court under s 274 of the RMA. Under the 1977 Act the Courts took a flexible approach to parties claiming to represent an aspect of the public interest, and this interpretation has continued under the present legislative scheme. However it is important not to overstate the flexibility applied under the 1977 Act. In the case of McLellan v Whangarei District a local resident and long standing user of the estuary potentially affected by the proposed subdivision was denied standing, with the Planning Tribunal rejecting her claim that she represented the public interest. Furthermore trade competitors could not hide behind the public interest, claiming to represent concerns about the integrity of the district scheme when in reality economic motivations drove their objections.
Different treatment was afforded to affected persons under the Water and Soil Conservation Act 1967 under which standing was 'extraordinarily wide'. Aright to object to the grant of water rights under this statute, which operated alongside the Town and Country Planning Act 1977, was given to any person on the ground that the grant of the application would prejudice his interests or the interests of the public generally. This test encompassed a wide range of individuals and groups, with very few limitations on participation being accepted by the Court.
Affected persons therefore received varying treatment under the previous legislative scheme. Standing was initially narrow and restricted to proprietary interests, and was then extended under the Town and Country Planning Act 1977 and the Water and Soil Conservation Act 1967 to encompass those individuals and groups representing the public interest or with an interest greater than the public generally. The laws of standing differed not only between statutes but within them as well, with different rights of participation in objections and appeals being conferred on different aspects of the planning and water rights schemes. There was also a myriad of other environmental legislation with quite different types or degrees of public participation rights. The standing regime, therefore, was complex and confusing, and in much need of reform before the enactment of the RMA.
Despite the complexities of the earlier standing regime, it is useful to consider the potential application of some of the tests used to see if they might assist with the present uncertainties under the RMA. The first element of the test for standing under the Town and Country Planning Act 1977, being a person or body 'affected', was narrowly defined and does not provide a feasible alternative to the current system. The second test for standing, the representation of the public interest which was also used under the Water and Soil Conservation Act 1967, is potentially more useful. If groups representing the public interest were required to be notified as affected persons under the limited notification regime this could extend participatory rights to a large number of community and environmental organisations. Care would need to be taken in formulating the statutory provisions to ensure that consent authorities were not burdened with unreasonable notification obligations. If all relevant public interest groups were required to be notified for all consent applications, this would arguably tip the balance too far in the direction of interested parties, especially in applications involving only minor adverse effects, and could create procedural and practical difficulties for consent authorities.
To illustrate, if an application for resource consent were made for a new dwelling, the construction of which would entail the removal of several native trees, the scope of affected persons required to be notified under a modified version of s 94 could potentially be large, including local residents associations, community organisations, conservation groups, and wildlife protection societies. The identification of these organisations in order to notify them would in itself be a time consuming and complex task, delaying the processing of the application and creating the risk of judicial review or other challenges if the consent authority overlooked some group who argue they should have been notified. As another example, in coastal areas or in areas where mining is a possibility it is quite common for there to be self-appointed 'watchdog' groups, or local groups formed by opponents of proposed developments who would no doubt argue that they represented the public interest, even though they might not be individually affected.
Under the rules for standing, it is up to the litigants to initiate their participation, by lodging an appeal or bringing court proceedings. This usually occurs later in the process, after an application has been granted. At that point the standing of those who have taken action is examined. Notification under the RMA, on the other hand, requires proactive action by the consent authority in identifying, locating, and notifying affected persons before the affected persons may even be aware that the application has been lodged. It is arguable that inserting a requirement for all applications to be notified to groups or persons representing the public interest would not be the most appropriate way of resolving the current uncertainties.
Two case studies of Australian planning schemes can also provide a useful basis for comparison.
In the Australian Capital Territory (‘ACT'), development activities are regulated by the Land (Planning and Environment) Act 1991 (ACT). Pursuant to this Act 'development', which encompasses a wide range of activities, including the erection or alteration of any structures, or carrying out earthworks, cannot be undertaken without approval from the ACT Planning and Land Authority. When an application for development approval is submitted to the Authority, they are required to publicly notify the application unless the proposal comes within one of the exceptions listed in the regulations. Notification involves serving notice of an application to all adjoining landowners, unless their number makes it impractical to do so, and placing a public notice in the newspaper and on the site of the proposed activity. Where this legislative scheme is of particular relevance to the issue at hand is in the restrictions it places on those may object to the application.
Pursuant to s 237(1) any person who may be affected by the approval of a development application may object to the grant of an approval within a prescribed period, usually 15 days from the date of notification. A 'person' can include any unincorporated association. The Authority must take any objections regarding a development application into account when deciding whether to grant or refuse the application. The ACT Supreme Court has been instrumental in determining the scope of 'affected', which must not be given too limited or restricted a meaning. Following Jewel Food Stores Pty Ltd v Minister for the Environment, Land and Planning, a person will be treated as being affected if they can demonstrate that a successful objection would result in a significant benefit or advantage to them. The potential detriment of the application being granted must be of discernible consequence, and an economic disadvantage can suffice. However it will not suffice to merely establish that one has the potential to suffer economic detriment by way of increased trade competition. This would seem to suggest, for example, that a supermarket could successfully claim to be affected by a trade competitor's development plan that necessitated road closures adjacent to their business. The detriment need not necessarily be to one's legal or proprietary interests.
In considering the ACT approach to affected persons it is important to note that standing arises from the objector's interests being adversely affected, not whether the public interest is affected. If a potential objector cannot demonstrate that they have been so affected, they cannot claim to represent the public interest in the alternative. In some cases the public interest may be intertwined with that of the objector. For example, a charitable institution will have standing to object to a planning application that, if granted, will potentially limit its ability to carry on its day to day activities. In contrast, a business entity, worried by the threat of increased trade competition, cannot object on behalf of the public interest. If, however, they establish standing on the basis of their interests being adversely affected on other grounds, they would be entitled to raise relevant public interest issues in support of their objection.
The ACT approach therefore is quite different to that of New Zealand. Public notification is undergone on a more frequent basis; however standing to object to applications is restricted to those who can demonstrate a potentially significant detriment to themselves, and not the public interest, if the application were granted. Rather than adopting a test for affected persons
that the consent authority must apply to determine who they should notify under the limited notification scheme, the ACT approach offers an alternative in which the council can simply screen the objections as they come in. Those submissions that do not demonstrate a detriment of discernible consequence to the applicant will not be valid objections and do not have to be considered. In terms of the test itself, ACT does not require a legal or proprietary interest provided that a significant detriment can be demonstrated. This approach therefore would likely include those organisations that would suffer from a grant of an application, but have no legal rights they can point to that are being infringed such as the aforementioned example of a sailing club using a coastal marine area. On the other hand, organisations will be prevented from hiding their economic and competitive motivations for objecting behind a veil of concern for the environment or the public interest. Unless they can show real injury to themselves beyond trade competition they will be barred from participation.
However, the usefulness of this approach in the New Zealand context is doubtful. Under the RMA screening of participants is done at the notification stage rather than when objections are received. The question arises whether the type of test ACT has adopted at the screening stage could be of use in New Zealand at the earlier time when the consent authority is determining who is affected. Applying the approach from Jewel Food Stores Pty Ltd v Minister for the Environment, Land and Planning the question the consent authority would have to pose to itself is whether there is any body or person who would suffer a detriment of discernible or significant consequence if the application were granted. Under the RMA notification regime the question of whether there are any significant adverse effects has already been asked when determining whether the application should be publicly notified. A test for affected persons based on significant detriment would accordingly be of no use, as under the RMA if there are significant consequences public notification will be undergone pursuant to s 93. The ACT approach to affected persons therefore does not appear to be helpful in resolving the current uncertainties in this country.
The Victorian notification system also provides a useful comparison. The governing legislation is the Planning and Environment Act 1987 (Vic). This Act provides for planning schemes, which is the single instrument used for planning control in the state, and each municipality in Victoria is covered by one. Planning schemes regulate the use and development of land in their municipality by requiring a planning permit to be obtained. When an application for a planning permit is made, the notification requirements are set out in s 52 of the Planning and Environment Act 1987 (Vic), and specific requirements may be included in the relevant planning scheme.
The tests detailed in the Planning and Environment Act 1987 (Vic) provide an alternative approach to the notification of affected persons. The tests for notification are wide, and were formulated as a response to concerns the previous system was too restrictive. Pursuant to s 52, the responsible authority must give notice to all owners and occupiers of adjoining land, unless the authority is satisfied that the grant of the permit would not cause material detriment to any person. Furthermore, the authority must serve notice of an application on any other persons if the responsible authority considers that the grant of the permit may cause material detriment to them. This is similar to the affected persons test in New Zealand.
The Act does not specify the matters that can be taken into account in determining whether or not there is material detriment. In its guide to the Victorian planning system, the Department of Sustainability and Environment advises that each application will be considered on its merits. As a general rule, detriment should be linked to specific concerns such as restriction of access, visual intrusion, unreasonable noise, or overshadowing. Thus a level of specificity is required, and general concerns regarding overall amenity or nuisance will be insufficient to establish material detriment. The fact that a proposal is controversial does not mean it will necessarily cause material detriment. Detriments will be material if they are 'of a real and not trivial or imaginary kind and ... not subjective to the mind of a particular person but ... detriments in an objective and reasonable sense'. A person affected for the purposes of the legislation can be someone whose 'financial, or aesthetic interests or whose enjoyment of life is touched' and it will not be necessary to live next door to a particular development in order to have a legitimate interest in whether it proceeds. Furthermore, 'persons' is defined widely to include a body politic or corporate as well as an individual. Thus, in considering who is an affected person to whom material detriment will be caused, a comprehensive assessment may be required. Companies, incorporated associations, and public bodies may need to be notified.
Interestingly, the responsible authority is also given the discretion to give any further notice that it considers appropriate where an application is likely to be of interest or concern to the community. This provision would allow authorities to notify persons who may not be able to satisfy the material detriment test, but nevertheless have an interest in the proceedings that the authority thinks should be recognised. This notification can take place by way of personal service, media publicity, public meetings, or letterbox drops.
Thus, the Victorian approach to affected persons and notification presents an alternative test, that of 'material detriment'. The consent authority can notify any person, which will include organisations, whom they perceive to be materially and objectively affected. A proprietary or legal interest is not required, nor is an organisation required to be functionally affected. So long as the individual or group can point to some kind of significant effect on their interests they will be an affected person under this test. Looking initially at the Victorian test it is clearly broader than that advocated by Blanchard J in Westfield (New Zealand) Ltd v North Shore City Council. Northcote Mainstreet would not have been ruled out under this general approach. Organisations with broader interests than Transit, for example, could participate as they are not required to be functionally affected. Some parameters are in place. Bodies or individuals must still show that they are materially affected. Open status to participate is not bestowed. However, material detriment is defined widely without clear boundaries or limits. This test probably does not offer much help for the New Zealand context with our adoption of minor adverse effects as a cut-off point and open status for cases that have greater adverse effects.
Where the Victorian approach is potentially more useful to resolve the current uncertainties in this country is the residual discretion given to the consent authorities. Under this scheme the consent authority retains the discretion to notify any other person or organisation if the proposal is likely to be of interest or concern to the community. This residual discretion can operate to ensure that in controversial cases the environment and community can be represented without the need to point to a specific material effect. This approach offers an alternative way forward for New Zealand and is discussed further in the next section of this paper.
When making recommendations as to how to improve the current situation of uncertainty, in respect of affected persons in the notification regime, it is difficult to reconcile the competing interests involved. If the test to be applied is too narrow many interested parties will be unable to legitimately participate in the resource consent process. This will have implications for both the participatory ideals behind the enactment of the RMA and also for the quality of decision-making. However if the test is widened too far it is arguable that this will impede the quick and efficient resolution of resource consents without improving the quality of the decisions made to a comparable extent. Furthermore, it needs to be taken into account that interested parties will have an opportunity to participate, by way of public notification, in all applications for which the adverse effects are more than minor. In considering how best to resolve the uncertainty surrounding affected persons, the potential participants that need to be kept in mind are those who are not directly affected by applications with only minor adverse effects, but are interested in their outcome.
A potential means of addressing these difficulties exists in the use of a combined approach. The statutory adoption of a restrictive definition of affected persons, and the provision of some form of wider notification in situations where the public interest in an application is high, could represent a viable alternative to the current New Zealand approach to affected persons.
The first element of this approach is the inclusion of a statutory definition of persons who may be adversely affected for the purposes of limited notification. This definition must be clear in the kind of interest that it will require and the seriousness of the potential effect. It should arguably be restrictive in nature, given the need to make it workable for consent authorities, containing elements of both Blanchard J's proprietary interest and Lang J's functionally affected tests. If an organisation does not have an affected proprietary interest, although not necessarily one held over the adjoining properties, it should be sufficient if their functions or operations will be impeded by the proposal. This would ensure organisations like Transit New Zealand come within the definition. Requiring those functions to be externally defined would aid the ease of identification of the organisations that should be notified. A clearer approach to affected persons of this type would reduce uncertainties at the notification stage. It is likely to reduce consent processing times, and reduce the risk of litigation brought by parties claiming they should have been notified as affected persons. It would be more workable and hopefully straightforward in its application.
In combination with a restrictive definition in the RMA, however, there should be a means of allowing consent authorities to undergo wider notification in cases where the public interest in the application is high, even if the adverse effects are likely to be minor. This could be achieved by way of two alternate mechanisms.
The first means of doing so would be to make use of s 94C, under which a consent authority can publicly notify an application if special circumstances exist, regardless of whether it meets the requirements of s 93. Arguably a useful approach would be to define 'special circumstances' to include circumstances in which the consent authority considers that there is a high level of public interest in the application which justifies it being publicly notified. This would allow consent authorities to undergo public notification even where the adverse effects are minor. The benefits of such an approach is that it confers greater participation rights in controversial applications, in which there may be a number of interested persons and organisations who may not be able to meet the requirements of the test for affected persons. Public notification can also be easier to administer than more selective notification in which tests must be applied to determine who should be notified. However, it is important to recognise that this additional burden of full notification would be conferred on applicants whose proposals would cause only minor adverse effects. The desirability of increasing the burden of notification in this way when the activity may have only minor impacts is debatable.
An alternative approach would be to confer a discretion on the consent authority to notify certain other individuals or groups, as it sees fit, where the public interest in an application is high. Those persons could provide their written approval, or be entitled to participate as a submitter on a limited notification basis. Such a discretion is given to consent authorities in the Victorian jurisdiction and could be included in s 94. When dealing with an application where it is known that particular public interest groups, local business associations, or well established environmental groups are interested in the subject matter, this approach would give the council an opportunity to notify them, while avoiding public notification. These organisations would not be required to meet the strict requirements of an affected persons test as they are being notified because of their potential contribution to the decision making process.
This discretionary approach has a number of advantages. First and foremost, it avoids public notification. Notification will be confined to certain persons or organisations as the consent authority sees fit. Some parameters to participation remain in place. Individuals and environmental and community groups would not have to be notified of all applications in their region or area of concern, just those in which the consent authority feels the public interest justifies such increased participation. Furthermore, it avoids the complications of widening the definition of affected persons to include such groups. Rather than formulating a test that must be applied by the consent authority in each application, a discretion to notify those parties as it sees fit provides more flexibility and reduces difficulties of interpretation.
However, workability issues arise in respect of this mechanism. The key to its success would be the way in which the discretion is exercised by the consent authority, and determining the individuals and groups to notify would be an onerous task. For example, in the Far North District Council area coastal subdivisions will often attract the interest of local 'watchdog' groups, as well as national environmental bodies and iwi organisations. There are a large number of community and environmental organisations in New Zealand. On the website of the umbrella group Environmental and Conservation Organisations of Aotearoa New Zealand alone there are over 70 member organisations listed. Determining which ones to notify in each controversial application would be difficult. Furthermore, consent authorities exercising this discretion would risk challenge by way of judicial review proceedings brought by parties arguing they should have been notified under this discretion. Questions of practicality, delay, and identification uncertainties would arguably limit the usefulness of this potential solution.
Both of these possible approaches under ss 94C and 94 are worth exploring further, in conjunction with a restrictive definition of affected persons. Using a restrictive definition will ensure that most applications will still be able to be processed quickly without the need to notify widely. However, providing for some form of wider notification in applications where the public interest is high, despite there being only minor adverse effects, is in line with the participatory ideals behind the enactment of the RMA and the increased international trend towards improving opportunities for public participation in administrative decisions. The question arises as to the most appropriate way of allowing this additional right of participation. If the questions of workability could be resolved, arguably, conferring a discretion would be the most suitable option as it avoids public notification and the ensuing delays. However, if identification and practicality concerns cannot be adequately addressed, the statutory inclusion of a special circumstances test in s94C may prove a more suitable way of resolving the present uncertainties.
What is clear about the issue of affected persons under the RMA is that there is no easy answer. The judiciary has been divided as to how best to define affected persons and the Supreme Court and High Court have advocated varied approaches. The previous system of planning in New Zealand also had problems in determining participatory levels, and ACT and Victoria present different approaches to the problem. The policy factors are clear. Participation is central to the RMA and crucial for the resource and environmental system to function effectively. However, at some stage this participation must give way to questions of practicality and reasonableness. Not all consents should be subjected to the scrutiny of the public interest, or even that of representative community and environmental organisations. In considering the possible avenues for reform it is evident that achieving a balance between these competing interests that is workable, and provides the necessary clarity and applicability, will be a difficult task.
Arguably, the best approach would be to provide a statutory definition of affected persons that is relatively restrictive, requiring an adverse effect on either the property or functions of an organisation. Together with this restrictive definition, which would likely exclude most community and environmental groups, provision should be made for further notification in cases where an application is likely to be of high interest or concern to the community. If such an approach were incorporated in s 94 the number of individuals and groups that could be considered to be adversely affected for the purposes of limited notification might be fewer, helping to increase the workability and clarity of the notification regime. In cases where the public interest is likely to be high, however, notification under that discretion could be wider. Alternatively, if it were thought problematic for a consent authority to make such determinations over who should be notified in cases of high public interest, consideration could be given to amending s94C to allow public notification as a special circumstance when this interest exists.
Further consideration of the best means of providing for this type of wider notification, and other possible approaches, is necessary. Reform is imperative. The present system is too uncertain and undermines both the participatory ideals that underpin the RMA and the desire for certainty and expediency that underlies much of its day-to-day application.
Sarah Nolan BA/LLB(Hons). The author is currently employed at Simpson Grierson, Auckland.
  NZCA 88;  NZRMA 433 (CA).
 Ports of Auckland Ltd v Auckland Regional Council  2 NZLR613 (HC).
 G Pring, 'The Public Participation "Revolution" in Natural Resources Management: Joe Bloggs has a voice' (Paper Presented at the Resource Management Law Association of New Zealand 12th Annual Conference, Taupo, 30 September - 03 October 2003) 2.
 New Zealand, Parliamentary Debates, Vol 607, 20 March 2003, 4303 (Jeanette Fitzsimons).
  NZSC 17;  2 NZLR 597, 620 (NZSC).
 This doctrine is discussed in Blackstone, Commentaries on the Laws of England (1915) as cited in K Palmer, 'Introduction to environmental law' in D Nolan (ed), Environmental and Resource Management Law (3rd ed, 2005) 10.
 Discount Brands Ltd v Northcote Mainstreet Inc  3 NZLR 619, 628 (Hammond J) (CA).
 Ashburton Borough Council v Clifford  NZCA 1;  NZLR 927, 942 (McCarthy J) (CA).
 K Palmer, 'Westfield v Discount Brands — to notify or not to notify: that is the question' (2005) 6(3) Resource Management Bulletin 29, 34.
 M Taggart, 'Administrative Law: Discount Brands in the Supreme Court'  New Zealand Law Review 75, 76.
 M D Bayles, Procedural Justice: Allocating to Individuals (1989), cited in A O'Mara, 'Procedural fairness and public participation in planning' (2004) 21 Environmental and Planning Law Journal 62, 66.
 O'Mara, above n 11, 66.
  NZSC 17;  2 NZLR 597 (NZSC).
 Ibid 615.
  NZHC 851;  NZRMA 145 (CA). Similarly the Environment Court in Minister of Conservation v Southland District Council  A 039/01 (Unreported, Environment Court, Sheppard J, 19 April 2001) held that 'the process of deciding whether resource consents should be granted or refused is more complete, and leads to better decisions, when others have the opportunity to make submissions'.
 Ministry for the Environment, Proposal to include a limited notification procedure for resource consents: a discussion document (1997) 2.
 C Kirman and C Whata, 'Environmental litigation and dispute resolution' in D Nolan (ed), Environmental and Resource Management Law (3rd ed, 2005) 977
 RMA s 145.
 RMAsch 1,cl 14.
 C Whata and C Kirman, 'Notification after Westfield v North Shore City Council: Recent directions from the Supreme Court' (2005) 2 Resource Management Journal 29, 32.
 RMA s 274 Representation at proceedings
(1) The following persons may be a party to any proceedings before the Environment Court:
(a) the Minister:
(b) a local authority:
(c) a person who has an interest in the proceedings that is greater than the public generally:
(d) a person representing a relevant aspect of the public interest:
(e) a person who made a submission in the previous proceedings on the same matter.
For a discussion of s 274 and its application, see Kirman and Whata, above n 17, 982. See also Purification Technologies Ltd v Taupo District Council  NZRMA 197; Electricity Corporation of New Zealand Ltd v Wellington City Council  W 72/98 (Unreported, Environment Court, Kenderdine J, 28 August 1998).
 RMAs 311. Under this section the Environment Court can make a declaration to clarify any matter concerning the RMA, including, for example, issues of statutory interpretation and the validity of notification decisions.
 RMA s 316. Enforcement orders have a wide scope, and can require a person to cease a particular activity that breaches the RMA, or prevent the commencement of such an activity. They can also be used to require positive action to ensure compliance with the RMA or another planning instrument.
 RMA s 338(4). An information can be laid at any time within 6 months after the time when the contravention giving rise to the information first became known, or should have become known, to the local authority or consent authority.
 RMA s 169. A designation is a special provision in a district plan that enables a particular public work or activity to be undertaken on specified land in the district, without a resource consent being required and notwithstanding any plan provision to the contrary.
 RMA s 190. If a heritage order is obtained for a particular property it will be included in the district plan and will prevent any person from taking an action on the property, without consent, that would wholly or partly nullify the effect of the heritage order.
 RMA ss 174, 192.
 RMAs 93(2).
 RMA s 93(1). The meaning of 'minor' has been discussed extensively, but the definition has not been furthered much beyond its ordinary meaning as a comparative word, greater than de minimis but less than significant. The permitted baseline test has application also. Pursuant to s 94A(a) a consent authority has a discretion whether to disregard an adverse effect of the activity if the relevant plan permits an activity with that effect. See D Kirkpatrick, 'Land use and subdivision — resource consent procedures, designations and appeals' in D Nolan (ed), Environmental and Resource Management Law (3rd ed, 2005) 247, for further discussion.
 Section 94C (2) of the RMA provides that if a consent authority considers that special circumstances exist, a consent authority may notify an application for a resource consent by —
(a) publicly notifying it in the prescribed form; and
(b) serving notice of it on every person prescribed in regulations.
 Pursuant to Peninsula Watchdog Group v Minister of Energy  NZCA 262;  2 NZLR 529 (CA) special circumstances must be unusual or exceptional, but not necessarily extraordinary or unique.
  NZCA 88;  NZRMA 433 (CA).
 S & M Property Holdings Ltd v Wellington City Council  NZRMA 193 (HC).
 Ports of Auckland v Auckland Regional Council  NZRMA 223, 239 (HC).
 Taggart, above n 10, 76.
 Ministry for the Environment, Annual Survey of Local Authorities 1997/98 (1998) 8, cited in I Williams, "The Resource Management Act 1991 - Well Meant but Hardly Done'  OtaLawRw 6; (2000) 9(4) Otago Law Review 673, 690.
 Westfield (New Zealand) Ltd v North Shore City Council  NZSC 17;  2 NZLR 597, 603 (NZSC).
 Ibid 614 (Elias CJ).
 Ibid 647.
 Kirkpatrick, 'Land use and subdivision', above n 33, 252.
 Bayley v Manukau City Council  1 NZLR 568, 575 (Blanchard J) (CA).
 Palmer, 'Westfield v Discount Brands', above n 9, 33.
 Westfield (New Zealand) Ltd v North Shore City Council  NZSC 17;  2 NZLR 597, 653 (Tipping J) (NZSC).
 K Palmer, 'An analysis of recent case law developments' (Paper Presented at New Zealand Law Society Intensive: Environmental Issues — insight and inspiration, August 2005) 5.
 Palmer, 'Westfield v Discount Brands', above n 9, 34.
  NZRMA 155 (HC).
 Ibid 158.
 Ibid 171.
 Ministry for the Environment, The Use of Limited Notification (2005) 1.
 Ibid 6.
 Ibid 9.
 RMA s94B(2).
 RMA s94B(3)(b).
 RMA s94B(3)(c).
 Kirkpatrick, 'Land use and subdivision', above n 33, 250.
 Ministry for the Environment, To notify or not to notify under the Resource Management Act: A good practice guide (1997) 7.
 Ministry for the Environment, To notify or not to notify under the Resource Management Act: Background Report (1997) 16.
  3NZLR 619, 629.
 Ministry for the Environment, An Everyday Guide to the RMA (revised ed, 2006) 5.
 New Zealand, Parliamentary Debates, Vol 607, 20 March 2003: 4294 (Marian Hobbs, Minister for the Environment).
  NZRMA 529 (HC).
 Ministry for the Environment, The Use of Limited Notification, above n 58, 1.
 As matters stood at the relevant times of the proceedings, pursuant to s 94(2) of the RMA, an application for a resource consent need not be notified in accordance with the Act if the application related to a discretionary activity or a non-complying activity and:
(a) The consent authority is satisfied that the adverse effect on the environment of the activity for which consent is sought will be minor and
(b) Written approval has been obtained from every person whom the consent authority is satisfied may be adversely affected by the granting of the resource consent unless the authority considers it is unreasonable in the circumstances to require the obtaining of every such approval.
 Westfield (NZ) Ltd v North Shore City Council  NZSC 17;  2 NZLR 597, 607 (NZSC).
 Northcote Mainstreet Inc v North Shore City Council  NZHC 1;  NZRMA 137, 142 (HC).
 Ibid 175.
 Northcote Mainstreet Inc v North Shore City Council (2004) 10 ELRNZ 146. (HC).
 Discount Brands Ltd v Northcote Mainstreet Inc  3 NZLR 619, 621 (CA).
 Ibid 635.
 Westfield (NZ) Ltd v North Shore City Council  NZSC 17;  2 NZLR 597 (NZSC).
 Northcote Mainstreet Inc v North Shore City Council  NZHC 1;  NZRMA 137 (HC).
 Ibid 138.
 Ibid 175.
  NZSC 17;  2 NZLR 597 (NZSC).
 V Rive, 'On notice: Discount Brands in the Supreme Court' Chapman Tripp (2005) <http://www.chapmantripp.com/resource_library/published_article.asp?id=4177> at 1 December 2006.
 Westfield (NZ) Ltd v North Shore City Council  NZSC 17;  2 NZLR 597, 640 (NZSC).
 Ibid 639.
 Ibid 644.
  NZCA 273;  1 NZLR 145, 152 (CA).
 Westfield (NZ) Ltd v North Shore City Council  NZSC 17;  2 NZLR 597, 640 (NZSC).
 Ibid 653.
 'Person' is defined by s 2 of the RMA as including:
'The Crown, a corporation sole, and also a body of persons, whether corporate or unincorporated'.
 Westfield (NZ) Ltd v North Shore City Council  NZSC 17;  2 NZLR 597, 654 (NZSC).
 Section 2 of the RMA defines 'Environment' as including:
(a) ecosystems and their constituent parts, including people and communities; and
(b) all natural and physical resources; and
(c) amenity values; and
(d) the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) or which are affected by those matters.
 Westfield (NZ) Ltd v North Shore City Council  NZSC 17;  2 NZLR 597, 618 (NZSC).
 Westfield (NZ) Ltd v North Shore City Council  NZSC 17;  2 NZLR 597, 618 (NZSC).
 Palmer, 'Westfield v Discount Brands', above n 9, 35.
 D Kirkpatrick, 'Discount Brands Ltd v Northcote Mainstreet Inc' (2005) 6(4) Resource Management Bulletin 27, 28.
 Section 6 of the RMA provides a list of matters of national importance, which all persons exercising functions and powers under the Act must recognise and provide for. 6(e) reads:
'the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga'.
This relationship was also recognised before the enactment of the RMA. A useful illustration of its application under the Town and Country Planning Act 1977 is the High Court decision of Royal Forest and Bird Protection Society v WA Habgood Ltd  NZHC 1379;  12 NZTPA 76.
 Kirkpatrick, 'Discount Brands Ltd v Northcote Mainstreet Inc' above n 98, 28.
 Rive, above n 85.
  NZHC 1;  NZRMA 137 (HC).
 Ibid 174.
 C Kirman and M Webb, 'Notification after Westfield v North Shore City Council — Revisiting the Supreme Court's decision a year on'  Resource Management Journal 1.
 Northcote Mainstreet Inc v North Shore City Council  NZHC 1;  NZRMA 137, 174.
  NZRMA 72 (HC).
 Northcote Mainstreet Inc v North Shore City Council  NZHC 1;  NZRMA 137, 176.
 Ibid 175.
 Ibid 176.
  NZRMA72, 76 (HC).
 Northcote Mainstreet Inc v North Shore City Council  NZHC 1;  NZRMA 137, 177.
 Justice Peter Salmon, 'Access to Environmental Justice' (1998) 2 New Zealand Journal of Environmental Law 1, 7.
 Westfield (NZ) Ltd v North Shore City Council  NZSC 17;  2 NZLR 597, 654 (NZSC).
 Ministry for the Environment, Awarding of Costs by the Planning Tribunal: Working Paper 5 (1996) 21. Similarly, Walter Clark has commented that the 'skilled researchers, consultants and legal counsel line up where the money is' in W C Clark, 'Public weaponless in defence of environment' New Zealand Herald (Auckland) 11 March 1996.
 Palmer, 'Westfield v Discount Brands', above n 9, 34.
 N Gunningham and P Grabosky, Smart Regulation: Designing Environmental Policy (1998) 96.
 Palmer, 'Westfield v Discount Brands', above n 9, 34.
  NZRMA 529 (HC).
 Ibid 536.
 Palmer, 'Westfield v Discount Brands', above n 9, 34.
 R Fisher, 'The Resource Management Amendment Act: Is it too little, too late' (Speech delivered at the New Zealand Institute of Management Breakfast, Wellington, 18 September 2003) 3.
  NZRMA 33 (HC).
 Ibid 41. See also the Planning Tribunal decision of Peninsula Watchdog Group Inc v Waikato Regional Council  A 26/95 (Unreported, Planning Tribunal, Sheppard J, 4 April 1995), aff'd Peninsula Watchdog Group (Inc) v Coeur Gold NZ  3 NZLR 463 (HC), in which significant costs were awarded against the self appointed watchdog group Peninsula Watchdog. Sheppard J recognised the important role that voluntary associations can play in processes under the RMA but argued that the way in which the group had conducted its appeal justified costs being awarded against it.
 Fisher, above n 123, 9.
 Ibid 4.
 Salmon, above n 114, 1.
 K Palmer, 'Resource Management Act 1991' in D Nolan (ed), Environmental and Resource Management Law (3rd ed, 2005) 95.
 D Williams, 'Law and the Environment: A Symposium: Environmental Law — Some recurring issues' (1975) 3 Otago Law Review 373, 378.
 D Williams, Environmental Law in New Zealand (1980) 274.
  NZSC 17;  2 NZLR 597 (NZSC).
 Pursuant to s 24(1) of the Town and Country PlanningAct 1953 a right to object to proposed district schemes was conferred on 'every organisation or society of persons engaged in any profession, calling, or business, or of persons associated with the promotion of any sport or recreation, or associated for any other purpose of public benefit or utility'. There were no property qualifications, the intention being that the public interest and business organisations should be given a voice in the preparation of planning documents. For further discussion see K Palmer, Planning Law in New Zealand (1977), 31.
  1 NZLR 108 (Wild CJ).
 (1977) 6 NZTPA 374.
 Houston and the Environmental Defence Society v The Thames County (1973) 4 New Zealand Town PlanningAppeals 9.
 Williams, 'Law and the Environment' above n 130, 378.
 Town and Country PlanningAct 1977s 2(3)(c).
 Town and Country PlanningAct 1977s 2(3)(d).
 Justice Robin Cooke, 'The concept of environmental law — the New Zealand law — an overview'  New Zealand Law Journal 631, 639.
 K Robinson, The Law of Town and Country Planning (3rd ed, 1981) 148. Robinson adopted this test from a decision made under the 1953 Town and Country Planning Act, Station Realty Ltd v Henderson Borough (1972) 4 New Zealand Town Planning Appeals 190; approved by Cooke J in Blencraft Manufacturing Co Ltd v Fletcher Development Co Ltd  1 NZLR 295.
 Blencraft Manufacturing Co Ltd v Fletcher Development Co  1 NZLR 295, 190.
  NZHC 177; (1987) 12 NZTPA 187 (HC).
 See above n 24 and accompanying text.
 Kirman and Whata, above n 17, 983. See, for example, Royal Forest and Bird Protection Society v Western Bay of Plenty District Council  NZEnvC 252; (1997) 3 ELRNZ 385 (Environment Court).
 McLellan v Whangarei District (1991) A97/91 (Unreported, Planning Tribunal, 19September 1991).
 Woolworths (New Zealand) Ltd v Napier City Council  NZPT 95; (1990) 14 NZTPA 394.
 Metekingi v Rangitikei Wanganui Regional Water Board  2 NZLR 150, 156 (CookeJ).
 Water and Soil Conservation Act 1967, s 24(4).
 Metekingi v Rangitikei Wanganui Regional Water Board  2 NZLR 150, 156 (Cooke J). See Williams, Environmental Law in New Zealand, above n 131, 142.
 Land (Planning and Environment) Act 1991 (ACT), s 222.
 Land (Planning and Environment) Regulation 1992 (ACT), s41.
 Land (Planning and Environment) Act 1991 (ACT), s 229(2)(a).
 Land (Planning and Environment) Act 1991 (ACT), s 237(6).
 Land (Planning and Environment) Act 1991 (ACT), s 231(1)(b).
 Jewel Food Stores Pty Ltd v Minister for the Environment, Land and Planning (1994) 122 FLR 269, 279.
 Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning (1998) 147 FLR 291,298.
 (1994) 122 FLR 269, 279.
 M Raff, 'A History of Land Use Planning Legislation and Rights of Objection in Victoria' (1996) 2 Monash University Law Review 90, 122. See, for example, the Victorian Supreme Court decision in Thorne v Doug Wade Consultants Pty Ltd  VicRp 48;  VR 433, in which only the immediate neighbours in a residential street were able to participate in the permit approval process. The appellants, who lived in the same and neighbouring streets, were excluded.
 Department of Sustainability and Environment, Victoria, Using Victoria's planning regime, <http://www.dse.vic.gov.au/dse/nrenpl.nsf> at 4 December 2006.
 Partlandv City of St Kilda (1989) 41 APA 178, 191.
 Lowden v Shire ofKilmore (1989) 41 APA 319, 325.
 Interpretation of Legislation Act 1984 (Vic).
 Department of Sustainability and Environment, above n 161.
 Planning and Environment Act (Vic), s 52(3).
 Department of Sustainability and Environment, above n 161.
  NZSC 17;  2 NZLR 597 (NZSC).
 Environment and Conservation Organisations of Aotearoa New Zealand, or ECO, is a non profit umbrella group of environmental and conservation groups. Its membership includes international organisations like Greenpeace and Friends of the Earth, national groups like Federated Mountain Clubs of New Zealand, and local and issue-oriented groups like Save the Otago Peninsula and the Yellow-eyed Penguin Trust. Its membership is listed at ECO, ECO Member Groups <http://www.eco.org.nz/groups.asp> at 5 December 2006.
 Pring, above n 3, 2.