The Resource Management Act 1991 (RMA) allows for areas of land to be designated for use as network utilities (such as roads and telecommunications facilities) or large public works (such as schools and prisons). These designated areas (or ‘designations’) are identified in district plans, usually in the maps.
Under the RMA, land can be designated for public works or network utilities only by ‘requiring authorities’. These authorities can be:
- a Minister of the Crown
- a local authority
- a network utility operator approved under the RMA.
The requiring authority does not have to own the land, but in order to obtain requiring authority status has to demonstrate that they are able to likely undertake or complete the project, work or operation and can undertake any necessary responsibilities (such as financial responsibility). Ministers of the Crown and local authorities are automatically requiring authorities. Network utility operators (organisations that distribute gas, petroleum, geothermal energy, telecommunications, electricity, water and wastewater, or which construct or operate roads, railway lines and airports) have to apply for requiring authority status from the Minister for the Environment.Footnote 70
A designation is like a ‘spot zoning’ over a site or route in a district or city plan. This spot zoning allows the requiring authority’s works or project to go ahead without the authority needing to get a land-use consent from the relevant district council.
Once the designation is put in place, the requiring authority may do anything allowed by the designation, and the usual provisions of the district plan do not apply to the designated site. The requiring authority will still need to get any resource consents required from the regional council.
If the requiring authority wants to use the land for something outside the scope of the designation, normal district plan provisions apply. In other words, the requiring authority would need a resource consent, unless the activity they propose is permitted in the district plan.
A designation also places restrictions on what anyone other than the requiring authority can do on the designated land without first getting the requiring authority’s permission and any necessary approvals from the relevant district or city council.
A network utility operator that is a requiring authority can apply to the Minister of Lands to have land required for a project compulsorily acquired under the Public Works Act 1981 (PWA).Footnote 71 An actual designation is not required for such an application and the provision is used rarely.Footnote 72 An owner of land subject to a designation or requirement may also apply to the Environment Court to have the requiring authority purchase all or part of the land under the PWA.
A ‘notice of requirement’ is the way a requiring authority gives notice to a council that it wants to designate land. Until it has been included in a district plan, a designation is referred to as a requirement.
A notice of requirement for a new designation must go through one of the following decision-making processes before it becomes a designation.
- The application may be heard by the local council, which makes a recommendation to the requiring authority whether it thinks the designation should be confirmed in the district plan (with or without modification and conditions) or withdrawn. The requiring authority decides whether to confirm or withdraw the notice (in other words, to accept or reject the council’s recommendation in part or full). The territorial authority concerned and any person who made a submission on the requirement can appeal the decision of the requiring authority to the Environment Court.
- The notice of requirement may be lodged with the Environmental Protection Authority (EPA) – if the Minister for the Environment considers it is part of a matter of national significance. Such applications are referred to a Board of Inquiry or the Environment Court, which will make a decision rather than making a recommendation to the requiring authority.
- It may be directly referred to the Environment Court if the requiring authority requests it and the council agrees. In these cases, the Environment Court makes a decision on the notice of requirement.
An outline plan provides the detail of the proposed work if this has not already been incorporated into the designation. It must be submitted by the requiring authority to the territorial authority before construction can begin. The outline plan must show the height, shape, bulk and location of the work on the site, and the finished contour. The territorial authority can waive the requirement for an outline plan.
A requiring authority may also require resource consents from the regional council to undertake the work; for example, earthwork consents or discharge permits.
The proposal may also require that approvals are sought under other legislation, such as authorities under the Historic Places Act 1993, or a concession if the land affected is public conservation land administered under the Conservation Act 1987.
For more information on designations see The Designation Process, in the Everyday Guide to the Resource Management Act series, available on the Ministry for the Environment website.
Other processes available for infrastructure approval
There are two other approval processes that can be used for infrastructure projects, as alternatives to the designation process: the resource consent process and the plan change process.
The resource consent process provides an approval for a particular project. The approval is specific to the details provided in the application (changes generally trigger a new approval process). The decision on whether to grant the resource consent is made by the territorial authority.
The plan change process identifies the infrastructure site within the district plan, including the controls and standards that apply to any existing and future activities on the site. The decision on whether to allow the plan change is made by the territorial authority.
There is no eligibility restriction on the use of either of these processes. Both processes are therefore available to infrastructure providers who do not qualify as requiring authorities and are therefore excluded from the designation system (for example electricity generators). Both the resource consent and plan change processes are also open to an infrastructure provider who also qualifies as a requiring authority.