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Consent processing - administration

Abstract

Administering the processing of applications for resource consent in an effective and cost effective way is a very important part of the overall management of applications once they are lodged with the consent authority. This Guidance Note provides good practice tips for keeping records, tracking and charging throughout the resource consent process.

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Guidance note

Key information to record when processing a consent application:

Keeping track of consent processing times:

Why do records need to be kept?

Section 35 of the Resource Management Act (RMA) requires every council to gather sufficient information and undertake research as necessary to carry out their functions under the Act. This is to enable the public to be informed of their duties and the functions and powers of the local authority and to participate effectively under the Act.

Section 35(5) requires every council to keep records of certain things to meet the requirements of section 35(3). This includes records of all:

In addition to performing an important audit function, this information can also be used to:

Keeping a record of this information from the outset also helps a council respond to the Ministry for the Environment's RMA Two-Yearly Survey of Local Authorities. The information recorded in this survey is used to monitor local authority implementation of the RMA, to highlight trends in practice, and to promote local authority good practice and improved performance.

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Setting up the consent file

The most common way to contain and keep track of resource consents is to use a separate file for each consent, with an allocated and individual consent application number recorded on the file. However, it is noted that some councils may record consent applications on the property file rather than make a new separate file.

If a new file is being created, it is important that an easily understood and logical file numbering system is used. There are many variations of this, but suggestions include incorporating the type of consent (for example, LU for land use, SU for subdivision, DP for discharge permit etc), and the date of the application (for example, 01 for 2001), followed by a unique consent application number (identifier).

It is important that the council has a system whereby all the consents associated with a particular property address can be readily identified or cross-referenced. Therefore a property file system may be more logical to use with space within it sectioned off for resource consent matters.

Keep an overall register of all resource consents including relevant numbers, dates and other critical data.

  • If a property/ site has been subject to other resource consents in the past then it is good practice to hold all relevant site files together so that they can be easily accessed and can give a full understanding of what has happened previously.
  • If separate resource consent files are to be kept then each file should contain reference to any previous consents relating to the site. This may simply require consent reference numbers being listed inside the cover of the file or electronically on a computer-based system.


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Key information to record and file

Section 35(5)(g - gc) of the RMA does not specify the actual information that a council should record or file for each consent application. However, it is very important that a council record and file key information and milestones (whether in paper files or in an electronic document management system). This information is vital for supporting councils' decisions to notify/ limited notify/ non-notify and grant/ refuse resource consents, particularly if an external party has to review the evidence on file to support the decisions made.

All correspondence relating to a resource consent application should be placed on the file relevant to the application in chronological order. Once a consent has been processed all correspondence regarding that consent should also be retained on the same file.

In addition, the following should be filed in the same place as the application:

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Using processing sheets

A number of councils have created their own cover sheets for recording information about a particular application. These are usually copied and kept at the front of any file set up for an application, alternatively they can be printed on the actual cover face of the file for easy reference.

Including a processing sheet at the front of a consent file is an effective way of recording key information and monitoring compliance with statutory timeframes.

The information recorded in this processing sheet should correspond to the information requirements of a council's consent records database.

The following checklist can be used as a basic template and developed according to a council's specific practices. The following are recommended matters for recording, whether on a hard copy checklist, or as part of your council’s consent records database:

For limited notified/ notified consents, the following information should also be recorded in addition to the above:

It is also useful to record information on any appeals that may be made. For example consider recording:

It is important to remember that any information recorded about a particular consent application must be clear and accurate, and relatively easy to extract. Information should also be recorded as it happens, not once the consent has been granted or refused.

Fill out the cover sheet information at the same time the Council database is updated. It may be more appropriate to have certain people doing this administration work so that planners can get on with assessing and reporting on the applications.

Example: Processing sheet for limited notified/ notified resource consents (MS Word 39KB)

Example: Processing sheet for non-notified resource consents (MS Word 39KB)

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Allocation of the application to a staff member for processing

Every application should be allocated to one council officer who is then responsible for it's processing (including compliance with timeframes and coordinating specialists). They should have suitable experience to process the particular proposal.

Applications should ideally be allocated according to their perceived complexity and staff skills and expertise.

Key knowledge/ skills that should be taken into account when considering who to allocate the consent to (listed from simple to complex) – the person:

When allocating a more complicated application to new staff or less experienced staff make sure that an experienced staff member checks with the person regarding how the processing of the application is going and if they have any concerns about how it should be managed or reported on. This will ensure the system runs as smoothly as possible and will provide the processing planner with more confidence. Also, have another staff member available for questions.


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Internal circulation of the application to other council departments

Communication with other parts of the council about applications is highly recommended. Depending on the specific application, internal circulation can help with coordinating aspects of the applicant's overall proposal, or seeking specialist advice on an aspect of the application.

If comments are sought from another department, a work brief should be prepared that clearly specifies the nature of the advice required and the date by which it must be provided. This will help the person providing the planner with advice to give the information needed within the required timeframes. Note that circulating applications to other departments does not mean that the processing clock can be stopped. Timeframes set for reporting on applications within the Council must still allow the statutory timeframes to be met.

  • Talk to the other departments about suitable ways to streamline the process for circulating applications and seeking advice - this will make the process easier and more streamlined.
  • Devise a standard brief cover sheet for requesting input from other staff and then add specific matters to be addressed on the sheet where necessary.
  • It may also be a good idea to have agreements with other teams on their level of input.


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The timeframe 'milestones'

Processing an application within the timeframes set by the RMA is vital. The time taken to process an application is often the biggest complaint about the resource consent process.

While there is no penalty in the RMA for failing to adhere to time limits, the onus is on consent authorities to ensure that time limits are met. There is also a requirement under section 21 of the Act to 'avoid unreasonable delay'.

The timeframe 'milestones' in the RMA for processing a consent application are:

  1. The date the application was lodged - this represents the start of the processing clock.
  2. The date by which an incomplete application must be returned to the applicant (maximum of 5 working days from the date that the application was lodged).
  3. The date the application is formally received – this is the same date as the lodgement date if the application is not returned because it is incomplete.
  4. The date that further information requests are made and received (assuming further information requests are agreed to) - while the RMA does not specify when requests for further information need to be made by, it is good practice to limit this to within 5 working days of receiving the application so that the timeframe for notification (10 working days) can be met should the application be required to be notified.
  5. Decision on notification/ non-notification/ limited notification –
    1. where it is decided to notify the application, this decision must be made and the application publicly notified or notice served (limited notification), within 10 working days of receiving the application (excluding any period when the clock has been stopped due to a further information request or the applicant seeking written approval from affected parties)
    2. where it is decided not to notify the application, there is a maximum of 20 working days from the date the application was formally received, to issue a decision on the application (excluding any period when the clock has been stopped due to a further information request or the applicant seeking written approval from affected parties).
  6. Close of submissions – 20 working days after date of public notification/service of notice.
  7. Advice of submissions to applicant – as soon as reasonably practical after closing date of submissions.
  8. Make decision to hold a hearing, and set the hearing date (if a hearing is required):
    1. It is best practice to make this decision and advise the applicant and submitters as soon as is reasonably practical
    2. The date of the hearing must be set no more than 25 working days from the date submissions closed for notified applications. For non-notified applications the hearing date should be set so that the 25 working day hearing date can be met.
  9. Direct the provision of evidence prior to the hearing –
    1. if directed, the applicant must provide the council with the briefs of evidence at least 10 working days prior to the hearing commencing.
    2. If directed, a submitter who is intending to call expert evidence must provide the council with the briefs of evidence at last 5 working days before the hearing.

      There is no requirement for these briefs of evidence to be circulated to other parties; however, it may be best practice to do so.
  10. Hold the hearing.
  11. Notification of decision – serve notification of decision on applicant:
    1. Where a hearing was held, no later than 15 working days after the conclusion of the hearing
    2. Where there was no hearing, no later than 20 working days from the date of formally receiving the application (excluding any period when the clock has been stopped due to a further information request or the applicant seeking written approval from affected parties) for non-notified applications.
  12. Closing date for objections – an objection must be lodged with the Council within 15 working days of notice of the decision being received by the applicant.
  13. Closing date for appeals – a notice of appeal must be lodged with the Environment Court within 15 working days of notice of the decision being received by the applicant and submitters.

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Meeting the milestones

Processing a consent application within the statutory timeframes should be the responsibility of the person allocated the consent.

Refer to the section Using processing sheets for help with using processing sheets to record the dates of key milestones.

In addition to processing sheets, councils around the country use a range of other effective mechanisms to assist them meeting the statutory timeframes for consent processing. The extent of the system required will depend on the number of consents processed and the number of officers involved in processing them. Some councils use the following methods to ensure milestones are met:

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Using sections 37-37B to extend the timeframes

Section 37 of the RMA allows a consent authority to extend the time limits specified in the Act or Regulations.

Under section 37A(2), a council can extend a time limit for:

Time periods can be extended for more than double the maximum period under (Section 37A). However, this can only occur upon the request of, or with the agreement of the applicant, and if the consent authority has taken into account the interests of anyone who may be directly affected by the extension and the interests of the community in achieving an adequate assessment of environmental effects. The consent authority must ensure that every person who it considers is directly affected by the extension of time limit is notified of the extension.

This section should be used to extend timeframes, rather than allow them to run overtime without any clear guidance being given to the applicant or other interested parties as to when new timeframes have been set.

Note however, that extensions of time should only be used where there are good reasons and the delay in processing the application is beyond the control of the consent authority.

The number of extensions to timeframes should be kept to a bare minimum and that sections 37-37A use does not just become a matter of course for no reason.

Time extensions may be appropriate in the following situations:

Example: Section 37 report (MS Word 33KB)

If time limits are extended, the length of the extension exercised under sections 37 and 37A should be specified. This provides an applicant with some certainty regarding time frames.

Where sections 37 and 37A have been used to extend time periods, applications should be recorded as having been processed within time, provided the limits set for processing through the use of sections 37 and 37A have not been exceeded.

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Forms and checklists

Example: Processing sheet for limited notified/ notified resource consents (MS Word 39KB)

Example: Processing sheet for non-notified resource consents (MS Word 39KB)

Example: Section 37 report (MS Word 33KB)

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Case law

The following cases contain discussion on timeframe and administration matters:

Bletchley Developments Ltd v Palmerston North City Council (No 1) [1995] NZRMA 337 (PT) - this decision recognises that a council can not utilise section 92 to put pressure on applicants who ultimately meet the costs of any delays in processing.

Malfroy Area Residents Group Inc v Rotorua District Council EnvC A92/98 – An extension of time limits for lodging submissions is available under section 37 for designations.

Golden Bay Marine Farmers Consortium v Tasman District Council 19/12/00 HC AP252/00 – A consent may commence before any appeals are determined if the Court makes an order under section 116(1) and such an order can limit how long it commences for. Temporary commencement may be allowed where adverse effects are reversible.

Johnston v Waikato Regional Council A92/92(PT) – A notice of appeal transmitted by fax and received by the Registrar after office hours is not deemed to be lodged with the Registrar until the next working day.

Withers Family Trust v Auckland Regional Council EnvC A101/2002 – the day on which service of a decision is effected (the day of receipt) must be excluded from the calculation. That is, the 15-day period commences on the first minute of the next day.

Butel Park Homeowners Assn v Queenstown Lakes DC C142/06 - addresses whether a decision to grant a waiver under s37 need to be explicit or can a waiver be granted implicitly.

Oruawharo Marae Trust v Auckland RC [2007] NZRMA 487 - there is no jurisdiction under s116 to order early commencement of coastal permits for restricted coastal activities.

Setting charges for processing and monitoring consents
Porpoise Bay Limited v Southland DC C089/06 - deals with the fixed and additional charging regime under ss 36(1) to (5). For a charge to be fixed charge it must be able to be determined in advance. All other charges are additional charges and open to challenge.

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Relevant publications

Getting in On the Act
Published by Ministry for the Environment - June 2006
A short, simple guide on how the Resource Management Act works and how it might affect users.

Your Guide to the Resource Management Act: An essential reference for people affected by or interested in the RMA
Published by Ministry for the Environment - August 2006
This guide for the public presents a simple explanation of the RMA legislation, the processes it has established, and how people can use it to pursue their interests.

Survey of Local Authorities: 2001/2002
Published by Ministry for the Environment - June 1993
This is the fifth Annual survey of local authorities by the Ministry. Overall, more local authorities were able to answer particular questions than in previous years.

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Current challenges in practice

Diligently tracking resource consent applications throughout the process

It is often challenging tracking resource consent applications throughout their processing. This is particularly the case when there are heavy workloads and the pressure to be assessing applications far outweighs ensuring that the necessary administration protocols are undertaken. In turn this can lead to specific 'milestones' not being met. To combat this, processing teams should ideally be assisted by staff whose job it is to only undertake consent administration work. This will in turn create a consistent approach and ensure that ‘milestones’ are documented. It may also be of assistance that planners track their own application workload through a spreadsheet arrangement so that they know well ahead of time what their workload is likely to be in any given week.

Obtaining sufficient information from other Council Departments

Most Councils diligently circulate applications to other departments of the authority to gain advice about more specialised parts of the application, for example environmental health aspects or traffic engineering matters.

Sometimes the level of information gained from them may not be of sufficient detail or has little relevance under the Resource Management Act 1991. In addition the information required from them may not be received within the required timeframes. These types of challenges can lead to decisions being issued late.

To avoid such problems, identify soon after the receipt of the application what technical advice is required, and distribute information to technical experts early in the process. The processing planner should specifically outline what the particular advice sought is, particularly when applications may be more complex or out of the norm. Setting timeframes for responses is also crucial and where they are not met the administration officers should diligently remind the relevant staff of the time limits that need to be met. It may be a good idea to get agreements with other sections of the Council, and/or implement performance measures. Some councils either have experts attend lodgement meetings, or get all applications vetted by experts so that it is clear whether the application is adequate for their purposes.

Confidential document management

In some cases there may be documents received by the Council that are sensitive and should remain confidential. Generally these tend to be legal opinions which relate to specific resource consent applications and relate to the position of the Council. These should be kept on the consent file but separately divided from the other non-confidential material, so that they can be removed easily from the file should someone from the public wish to view the file at any time. The cover of the file should also identify that there is confidential material on the file that should be removed before being made available to the public.

Meeting milestones and using sections 37 and 37A correctly

During periods of high workload and/or dealing with complicated or large applications it may be difficult to meet the statutory timeframes set in the Act. Even when doubled these timeframes may not be realistically met. In turn it can then become challenging for officers to recognise when milestones may not be met and when sections 37 and 37A should be applied. To handle these types of situations protocols should be set up to recognise when sections 37 and 37A might be applied and what actions should be taken to make the applicant aware that timeframes will be extended and for what reasons.

Where sections 37 and 37A are being used regularly by Councils for small or uncomplicated applications, care should be taken to avoid unreasonable delays. It is unfair to consistently delay applications because a council has not addressed resourcing issues for an extended period.