Section 2: 'Step-by-Step' Guides
2.1 Processing a notice of requirement for a new designation
This section sets out the key steps involved in processing a notice of requirement for a new designation in an operative or a proposed district plan.
Note that if the territorial authority receives a notice of requirement within 40 working days of release of a proposed district plan, it can use the process set out in 2.3 (Processing a roll over designation), provided the requiring authority agrees.
Notes:
- A requiring authority can withdraw a notice of requirement at any time by giving written notice to the territorial authority affected (section 168(4)).
- The territorial authority can double any of the time limits stated in steps 7, 8, and 9 (section 37).
Application
1. The requiring authority sends its notice of requirement to the territorial authority, along with the required administrative fee. The requiring authority must use Form 18, or a similar format.
The information needed for a notice of requirement is essentially the same as that required for a resource consent. Form 18 requires an assessment of 'the effects that the proposed works will have on the environment'. Therefore, the notice of requirement usually includes an Assessment of Environmental Effects (AEE).
2. The territorial authority checks the status of the requiring authority against the Gazette notice, or RMA. If necessary, the territorial authority requests clarification that the requiring authority is an approved requiring authority, and is responsible for that designation.
3. The territorial authority checks that the notice of requirement includes sufficient information for potential submitters to understand the proposal. If there is not sufficient information, the territorial authority can request further information and delay notification until it gets the information (section 92).
The guidance note 'Including Requirements in Proposed Plans' on the Quality Planning website (www.qualityplanning.org.nz) has more information on this step.
Notification
4. The territorial authority publicly notifies the notice of requirement, using the same procedures as for a resource consent application, under section 93 and sections 95-103. The territorial authority acknowledges all the submissions it receives. All notices of requirement for new designations must be publicly notified.
The territorial authority uses Form 19 if the requiring authority is the Minister, local authority, or a network utility operator, or Form 20 if the application is from the territorial authority itself.
Hearing
5. The territorial authority holds a hearing if requested or necessary, as would be the case for a resource consent application under sections 101-103. It can request further information and commission reports to complement the officer's reports at the hearing, and can delay the hearing until it receives all the necessary information and reports. If appropriate, the territorial authority may also hold a pre-hearing meeting.
If the requiring authority also needs regional resource consents, a joint hearing can be held. However, a territorial authority cannot reject or delay a notice of requirement while waiting for consent applications.
Territorial authority recommendation
6. The territorial authority makes one of the following recommendations to the requiring authority:
- to confirm the requirement
- to modify the requirement
- to impose conditions, or
- to withdraw the requirement (section 171(2)).
The territorial authority must give reasons for its recommendation (section 171(3)). Note that it does not decide; it recommends.
However, if the territorial authority is also the requiring authority, it doesn't make a recommendation, but makes a decision to confirm, cancel or modify the requirement (section 168A).
When making the recommendation or decision, the territorial authority must have regard to matters listed in section 171(1). This is a key aspect of the designation process. Territorial authorities only consider the matters listed in section 171(1). The territorial authority is not required to consider the matters listed in sections 104 and 105.
The conditions provisions in section 108 do not constrain the territorial authority's power to recommend conditions. However, conditions must conform to the usual legal principles: certainty, enforceability, within powers, for a resource management purpose, and related to potential effects of the designation.
Requiring authority decision
7. Within 30 working days of receiving the territorial authority's recommendation, the requiring authority advises the territorial authority of its decision to accept the recommendation, accept it in part, or reject it, with reasons (section 172). The recommendation can be served on submitters, although this is not compulsory. (This step does not apply to a decision by the territorial authority on its own notice of requirement.)
Notification of decision
8. Within 15 working days of receiving the requiring authority's decision, or of making the decision itself, the territorial authority must notify the decision. The territorial authority must also ensure that a copy of a decision made by a requiring authority is served on every person who made a submission. In addition, a notice of the decision must be served on the landowners and occupiers who are affected by the decision (section 173). The territorial authority can choose to notify and serve a summary of the decision, but must state where the full decision is available for public inspection (section 173(2)).
Appeal
9. Within 15 working days of the territorial authority notifying the decision, the territorial authority, or any submitter, may lodge an appeal with the Environment Court (section 174).
Inclusion in plan
10. The territorial authority includes the designation in the district plan without further formality (section 175) if:
- no appeal is lodged within 15 working days of the decision being notifiedor
- an appeal is lodged but is then withdrawn or dismissed, or
- the Environment Court confirms or modifies the requirement.
See figure at its full size (including text description). 2.2 Processing a notice of requirement to alter an existing designation
This section sets out the key steps involved in processing a notice of requirement to alter an existing designation in an operative district plan.
In some circumstances, a territorial authority can choose to make an alteration on a non-notified basis. It has to assess the notice of requirement against the criteria set out in section 181(3) before making that decision.
Application
1. The requiring authority sends its notice of requirement to alter a designation to the territorial authority, along with the required administrative fee. The requiring authority must use Form 18 or a similar format.
2. The territorial authority checks that the designation has not lapsed.
Assessment against section 181(3)
3. The territorial authority checks whether the notice of requirement meets the criteria of section 181(3), and can be processed under the non-notified procedure. If the notice of requirement does not meet the section 181(3) criteria , the requiring authority has to apply for a new designation (process 2.1).
When assessing against the criteria of section 181(3), the territorial authority checks the following aspects of the notice of requirement:
i. Does the notice of requirement appropriately define the extent of the proposed alteration? The alteration may be to the size and shape of the designation, or to the nature of the designated work, or both.
For alterations to the size or shape of a designation, are there sufficient plans or descriptions to define the extent of the increase or decrease?
For alterations to the nature of the designated work, is there a sufficient description of the alteration?
ii. Have all 'directly affected' owners and occupiers given written approval?
iii. Does the territorial authority agree with the alteration? In particular, does the alteration satisfy the following required tests of (section 181(3)(a)):
- it involves no more than a minor change to the effects on the environment associated with the use or proposed use of the land concerned, or
- it involves only minor changes or adjustments to the boundaries.
iv. Does the territorial authority 'agree' with using the non-notified procedure? The territorial authority has the right to process the alteration on a notified basis if it wishes, using the full process for a notice of requirement for a new designation.
Alteration
4. Once the territorial authority is satisfied that the notice of requirement for an alteration meets the necessary criteria, and that it agrees with using the non-notified procedure, it makes the alteration in the district plan.
See figure at its full size (including text description). 2.3 Processing the roll over of a designation in a proposed district plan
This section sets out the key steps involved in rolling over an existing designation from an operative district plan into a proposed district plan.
A territorial authority can also use this process when it receives a notice of requirement for a new designation within 40 days of the due date of releasing its proposed district plan for submissions.
'Invitation' to requiring authorities
1. Before a territorial authority notifies a proposed district plan, it writes to requiring authorities with designations in the district that have not lapsed. It invites each requiring authority to give written notice of whether it wishes its designation(s) to be included in the proposed plan, with or without modification.
The letter must state a final date by which the territorial authority must receive a response from the requiring authority. It must allow the requiring authority at least 30 working days to respond (Firth Schedule).
2. If a requiring authority wishes to include a roll over designation(s) in a proposed district plan, it sends the territorial authority notice of a roll over designation(s) within the stated timeframe. The requiring authority can give notice (including reasons at this time) of any modifications.
Checks
3. The territorial authority checks the status of the requiring authority in the district plan. If necessary, it requests clarification that the requiring authority is a requiring authority, and is responsible for that designation. It also checks that the designation to be rolled over hasn't lapsed. (Although these checks also happened in step one, repeating them now provides certainty.)
4. The territorial authority includes the roll over designation in the proposed plan, along with any relevant modifications.
Notification and submissions
5. The territorial authority will then publicly notify the proposed district plan, including the roll over designations.
6. The territorial authority will also notify land owners or occupiers who the territorial authority considers are likely to be 'directly affected' by the requirements. Clause 5(2) requires that public notices include:
- a statement that any person may make a submission on the proposed plan, and
- details of the process for public participation in consideration of the proposed plan.
7. Anyone who wishes to makes a submission on the notice of requirement for a roll over designation can do so by using Form 21. The territorial authority then:
- summarises these submissions, along with submissions on other provisions of the proposed district plan, and
- publicly notifies the availability of this summary, and the closing date for lodging further submissions.
Hearing
8. The territorial authority holds a hearing if requested or necessary. Clause 8B requires the territorial authority to hold a hearing into any notices of requirement notified in proposed district plans. However, when no submitter wishes to be heard, or a submitter withdraws a request to be heard, the territorial authority is not required to hold a hearing (clause 8C).
Territorial authority recommendation
9. The territorial authority makes a recommendation to the requiring authority to confirm the requirement, modify the requirement, impose conditions, or withdraw the requirement. It must provide its reasons with its recommendation (clause 9). The territorial authority often makes its recommendation when it makes other decisions on the proposed district plan.
The territorial authority is not required to notify submitters about its recommendation to the requiring authority.
The territorial authority is not allowed to make a recommendation if the roll over designation has no modifications, and there have been no submissions (clause 9(3)). It must simply include the 'roll-over' designation in the proposed district plan.
Best practice
Release recommendations on notices of requirement for roll over designations separately from decisions on the proposed district plan as a whole.
Releasing recommendations and decisions together can cause submitters to think, incorrectly, that they appeal the territorial authority's recommendation to the Environment Court (instead of the requiring authority's decision).
Requiring authority's decision
10. Within 30 working days of receiving the territorial authority's recommendation, the requiring authority advises the territorial authority of its decision to either accept the recommendation, accept it in part, or reject it (clause 13).
11. Within 15 working days of receiving the requiring authority's decision, the territorial authority notifies the decision to submitters and to directly affected landowners and occupiers (clause 13(4)). It makes any necessary alterations to the proposed district plan to reflect the requiring authority's decision (clause 13(3)).
Appeal
12. Within 30 working days of the requiring authority's decision being notified, the territorial authority or any submitter can appeal the decision to the Environment Court (clause 14).
See figure at its full size (including text description). 2.4 Using outline plans to authorise works on designated land
This section sets out the key steps involved in a territorial authority authorising new works on a designated site through the outline plan process.
Receipt of outline plan
1. The requiring authority sends its outline plan to the territorial authority, along with the required administrative charge. The RMA does not prescribe any particular form to be used when submitting an outline plan, but section 176(A)(3) specifies the information the outline plan must include (see section 3.4 of this guide).
2. The territorial authority makes sure that:
- the outline plan has been submitted in the name of the requiring authority, or that the agency submitting the outline plan has delegated responsibility to act on behalf of the requiring authority
- the requiring authority is aware of its duty to advise the territorial authority of any change in its financial responsibilities and authority over designations
- the outline plan contains all the information required under section 176A(3).
Assessment
3. The territorial authority assesses the outline plan to ensure that:
- the project or work is within the purpose and conditions of the designation, and
- the designation has not lapsed.
4. The territorial authority decides whether to request any changes or clarifications.
The territorial authority should tell the requiring authority of its decision to request or not request changes as soon as is reasonably practical. No formal provision enables the territorial authority to request further information at a later stage, so it needs to receive all the necessary information now.
Best practice
Seek agreement with the requiring authority, if possible, on any changes required. This will minimise the risk of the requiring authority rejecting the requested changes. The only remedy then would be for the territorial authority to lodge an appeal to the Environment Court, with associated costs to both parties.
Written request for changes
5. Within 20 working days of receiving the outline plan, the territorial authority sends a written request for changes to the requiring authority. The request must be in writing; no written request means that no changes are required. A territorial authority can double this time period (section 37).
Requiring authority decision
6. If the requiring authority receives a written request for changes, it decides whether to accept or reject those changes, and tells the territorial authority its decision. There is no specified timeframe for the requiring authority to make this decision.
Appeal
7. If the requiring authority rejects the requested changes, the territorial authority can appeal the requiring authority's decision within 15 working days of being notified of the decision to the Environment Court (section 179).
See figure at its full size (including text description). 