Section 1: Frequently Asked Questions
1.1 Requiring authorities
What is a requiring authority?
A requiring authority can be:
- a Minister of the Crown
- a local authority
- a network utility operator approved as a requiring authority under section 167.
Ministers of the Crown and territorial authorities are automatically requiring authorities. A network utility operator has to have its status as a requiring authority approved by the Minister for the Environment.
Only a requiring authority can use the designation provisions of the RMA to have land designated for public works or network utilities. It has financial responsibility for a project, work or operation on the designated land.
What is a network utility operator?
Network utility operators are defined by what activities are undertaken, or in some cases proposed to be undertaken. They include organisations that distribute gas, petroleum, geothermal energy, telecommunications, electricity, water, waste water, roads, railway lines, and airport authorities (including approach surfaces).
What is the difference between a requiring authority and a network utility operator?
A person or organisation may be both a requiring authority and a network utility operator, as defined in the RMA. However, for a network utility operator to become a requiring authority, the Minister for the Environment must first approve their application to become a requiring authority (section 167).
How do I find out who is a requiring authority?
The Ministry for the Environment, along with several publishers of statutory handbooks, maintain a list of all approved requiring authorities.
Most territorial authorities also have an up-to-date list of all approved requiring authorities.
1.2 Designations and their use
What is a designation?
A designation is a form of 'spot zoning' over a site or route in a district plan. The 'spot zoning' authorises the requiring authority's work or project on the site or route without the need for a land use consent from the relevant territorial authorities. The requiring authority may do anything that is in accordance with the designation, and the usual provisions of the district plan do not apply to the designated site.
A designation also places restrictions on what anyone other than the requiring authority can do on the designated land without the requiring authority's permission.
Until included in an operative district plan, designations are known as 'requirements'.
Does work on a designated site still need regional council consents?
The requiring authority still needs to get any relevant regional consents for the work. The designation process doesn't exempt the requiring authority from restrictions on land use contained in section 9(3), or restrictions on air, water and the coastal marine area contained in sections 12-15.
What can a requiring authority use designated land for?
A requiring authority can use the designated land for the 'designation notation' or 'designated purpose' as set out in the district plan. In case law, this is called the scope of the designation.
The scope of the designation defines what activities the requiring authority may undertake on the designated land, in accordance with section 176(1)(a).
Normal district plan provisions apply if the requiring authority wants to use the land for a purpose outside the scope of its designation. Only a requiring authority can apply for a designation in a district plan.
This means the requiring authority can undertake an activity not associated with the designation, provided it is permitted by the rules of the district plan, or the requiring authority gets a resource consent.
Can a third party use the designated land?
Historically under section 176(1)(a), only the requiring authority responsible for the designation could do anything on the land that was in accordance with the designation.
Third parties required the written approval of the requiring authority to carry out activities on the land.
The Amendment Act provides greater flexibility by providing an exemption from section 9(1) for a public work or projects or work undertaken by a requiring authority under the designation.
Approval from the requiring authority with the designation is still required under section 176(1)(b).
This change has yet to be tested in the courts.
Can a third party undertake an activity on a designated site that is not in accordance with the designation?
A third party wishing to do anything on designated land that may prevent or hinder the designated work must obtain written consent from the requiring authority.
The third party has rights of appeal under section 179 if the requiring authority withholds consent. The normal provisions of the district plan would apply, and the third party may need to get resource consents.
Can a requiring authority be an 'affected person' if a third party uses the designated land?
If a third party needs a resource consent for an activity on the designated land, the territorial authority will assess who are affected parties. These will usually include the requiring authority.
The need to obtain the written consent of the requiring authority (section 176) is a separate matter and not related to the territorial authority's decision.
Can a requiring authority transfer responsibility for a designation?
Yes. When the financial responsibility for a designation transfers from one requiring authority to another, the responsibility for the designation itself also transfers. Each party to a transfer must be a requiring authority. The territorial authority is not involved in the transfer process.
What is a 'roll over' of a designation?
A roll over designation is a designation that was in the transitional district plan, and that the requiring authority requests to have included (rolled over) in the proposed district plan, with or without modification.
Do existing designations that are not 'rolled over' still have effect?
If a designation has not lapsed, it continues to have effect until the proposed district plan (or at least that part of it) is made operative. Note that the effect of section 19 of the Resource Management Amendment Act 2003 is that rules in district plans will take effect as soon as they are beyond challenge. Section 19 applies unless (under section 20) a local authority, before it notifies a proposed plan, resolves that any rule in the plan does not have effect until the plan becomes operative. Designations are 'deemed' rules. [Section 175(1)(d), and see Donkin v Board of Trustees of Sunnybrae Normal School [1997] NZRMA 342 and Watercare Services v Minhinnick (1997) 3 EKRNZ 511 (CA) where the Court of Appeal commented that section 175 does not turn a designation into a rule for the purposed of the then section 319, as that would create conflict between sections 176(1)(a) and 319(2). Note that both of these sections are now amended and this conflict may no longer exist.] On this view, new notices of requirement (lodged under the First Schedule) will be able to be relied upon once they are beyond challenge. However, it might be argued that section 19 only applies to actual rules not deemed rules. The Court's input will be required before the ability to rely upon section 19 is certain.
The designation in the transitional plan continues to over-ride all other district plan provisions until the transitional plan ceases to have effect.
When does a designation lapse?
A designation that hasn't been 'given effect to' lapses five years after the date it is included in the district plan, unless the lapsing period has been extended. 'Given effect to' means that work has started on the designated activity. (Note: the term 'given effect to' in this context means that the designated activity has been established on the site.)
A requiring authority can apply to the territorial authority to extend the lapsing period under certain conditions.
Is there a time limit on designations that have been given effect to?
Once given effect to, a designation remains for the life of the district plan, or until the requiring authority removes or alters the designation. As discussed above, the designation can also be rolled over into the new district plan.
What happens when there is more than one designation on a site?
As a general rule, the designation first included in the district plan takes priority. When the requiring authority responsible for the second designation wishes to undertake designated works on the site, it must obtain written consent from the requiring authority of the earlier designation. The requiring authority who is responsible for the earlier designation may only withhold consent if the thing to be done would prevent or hinder the works that are authorised by the earlier designation.
1.3 Notices of requirement
What is a notice of requirement?
A notice of requirement is the way a Minister of the Crown, local authority or requiring authority gives notice to a territorial authority of its requirement for a designation.
A notice of requirement for a new designation must go through a public notification, recommendation and decision-making process before it becomes a designation.
Can a notice of requirement be relied upon immediately?
No. A notice of requirement can only be relied upon once it is included in an operative district plan as a designation. For designations introduced through section 168 that will be as soon as the designation is confirmed by the requiring authority or if there are appeals confirmed by the Environment Court.
Section 176 provides that third parties cannot do anything that would prevent or hinder the proposed work without the prior written approval of the requiring authority.
There can be considerable delays when a notice of requirement is included in a proposed district plan through the First Schedule. This period starts when a territorial authority gives notice of an impending proposed plan, through to the date of notification, then onto hearings, and recommendations issued by the territorial authority and finally references against any decision of the requiring authority on those recommendations. In this situation, a designation can't be relied upon until the plan (or the relevant part of it) is made operative - often 4-10 years after notification.
When can a notice of requirement be included in a proposed district plan?
Before notifying a proposed district plan, a territorial authority must invite all requiring authorities with an existing designation to respond as to whether they wish to issue notices of requirement to have the designation 'rolled over' into the proposed district plan, with or without modification. If a requiring authority states that it does wish an existing designation to be included in the proposed district plan, the territorial authority must include it in the proposed district plan, with or without modification.
When a territorial authority receives a notice of requirement for a new designation within 40 working days of notifying a proposed district plan, it may, with the consent of the requiring authority, include the requirement in the proposed district plan, and deal with it in the same way as a roll over designation.
Can a notice of requirement to alter an existing designation be processed 'non-notified'?
Yes, but there are certain criteria. If all of these criteria are met, it can be processed non-notified, otherwise it must be notified. These criteria are set out in section 181(3) of the RMA, as amended by the Resource Management Amendment Act 2003:
(3) A territorial authority may at any time alter a designation in its district plan or a requirement in its proposed district plan if -
(a) the alteration -
(i) involves no more than a minor change to the effects on the environment associated with the use or proposed use of land or any water concerned; or
(ii) involves only minor changes or adjustments to the boundaries of the designation or requirement; and
(b) written notice of the proposed alteration has been given to every owner or occupier of the land directly affected and those owners or occupiers agree with the alteration; and
(c) both the territorial authority and the requiring authority agree with the alteration.
Does the requiring authority have to own the land it wants to designate?
No. Ownership of the land to be designated is not a prerequisite to issuing a notice of requirement. Requiring authorities responsible for network-style projects, such as high voltage line corridors and roading alignments, usually do not own all of the land required when they issue a notice of requirement.
Often, however, the requiring authority does own the land for site-specific works such as schools, police stations or telephone exchanges.
A network utility operator can apply to the Minister of Land Information to invoke his/her powers under the Public Works Act to access or acquire land.
Can a requiring authority be forced to purchase designated land?
A person who owns designated land can apply to the Environment Court for the requiring authority to acquire or lease all or part of the land if:
- they tried and are unable to sell the land, and either
- the designation prevents the reasonable use of land, or
- if the person was the owner of the land (or the spouse of the owner) when the designation was created.
1.4 Outline plans
What is an outline plan?
An outline plan is a plan or a description of works that a requiring authority proposes to carry out on the designated site. Outline plans often contain details that were not available at the time of the hearing into the requirement.
Who submits an outline plan?
The requiring authority with responsibility for the designation, as named in the district plan, submits the outline plan.
If a third party has the requiring authority's written permission for works on the site, the normal provisions of the district plan apply and an outline plan is not required.
Does a territorial authority need to seek public comment on an outline plan?
No. Public comment is not sought, although the requiring authority can choose to consult on its outline plan. Consultation would probably be limited to particular members of the public who may be affected, such as neighbours.
There is also no provision in the RMA for public appeals against a decision of a requiring authority on an outline plan.
Can a territorial authority waive the need for an outline plan?
Yes. Territorial authorities have the discretion to waive the requirement for an outline plan. In deciding whether to waive the requirement, the territorial authority needs to consider the nature and level of the proposed works, and the likely effects of the proposed work or project. In some instances, the territorial authority may consider that it already has sufficient information in the notice of requirement.
How long does a territorial authority have to process an outline plan?
A territorial authority has 20 working days to assess the outline plan and make any requests to the requiring authority for changes (section 176A(4)). If no requests are made within that timeframe (and no extension of time granted), the presumption is that the requiring authority can commence the construction.
What information needs to be included in an outline plan?
The outline plan needs to include full details of the proposed works and any mitigation measures to enable the territorial authority to fully understand the nature of the proposed works and any likely effects. As a minimum, section 176A(3) of the Act requires that an outline plan must show:
- the height, shape and bulk of the work
- the location on the site
- finished contours on the site
- vehicle access and parking
- proposed landscaping, and
- any other mitigation measures.
