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Requesting further information

Abstract

Upon formal receipt of resource consent applications, councils are required to assess them for completeness in terms of: describing the proposed activity, any effects the activity will have, and how any adverse effects may be avoided, remedied or mitigated.

Section 92 of the Resource Management Act 1991 (RMA) allows councils to request further information or commission a report, at any reasonable time before the hearing of an application. Such additional information may be required to better understand any potentially significant adverse effects. The applicant has the right to refuse to provide further information or for a report to be commissioned.

Sections 92A and 92B address responses to requests for further information and requests to commission reports. Sections 88B and 88C set out how these requests impact on the processing timeframes for resource consents.

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Guidance note

Section 92 - further information

Section 92 of the RMA enables a council to request further information from the applicant, and/or request an applicant to agree to the commissioning of a report, if the activity may have a significant adverse environmental effect. While the RMA does not specify what things further information may be requested for, a request should generally relate to enabling a better understanding of:

Occasionally to enable a better understanding of the application, a council may also need to request further information about matters such as legal access, the nature of easements, and confirmation of ownership.
Any further information sought should not:

This process is detailed in the section 92 flowchart.

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When should further information be asked for?

The RMA enables a council to request further information at any reasonable time before the hearing of an application, or before the decision is made on the application (if there is no hearing). However, the earlier in the process the request is made, the better. It is good practice to make a request for further information within 5 working days of receiving the application. This is to avoid unreasonable delays and takes into account the statutory timeframes for notification purposes. That is, notification must occur within 10 working days of receipt of the application (s95), excluding any days the clock has been stopped for further information request(s). This timeframe should also allow time for a site visit before deciding to request further information.

It is good practice to minimise the number of times further information is requested. Ideally, council officers will have discussed or circulated the application internally so that all information requests (eg, roading, stormwater, engineering, planning, cultural impact) can be dealt with in one request. In the first instance, a council officer should require sufficient information to allow an application to be notified (eg, enough information that allows a good understanding of what is proposed and the likely environmental effects that would arise from the proposal). If further detailed information is required later, then this can be asked for before a hearing; it needs to be made available to submitters at least 10 working days before the hearing commences. Commissioners can also request further information during the course of a hearing to enable a better understanding of the application, adjourning the hearing if necessary.

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How should further information be asked for?

Further information requests are required to be made in writing and must state the reasons for making the request. However, council officers should contact the applicant first to ensure they are aware of the request, the information required and the reason.

Requests for further information should:

Refer to Example: Section 92 letter (MS Word 27KB).

Use a standardised staff check list to assess the application in terms of its compliance with the relevant plan(s). This will highlight any gaps in the information provided. See Example: Checklist for processing officer (MS Word 89KB).

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Responses to a request for further information

Applicants have three options when responding. They can:

Applicants must tell the council what they intend to do in writing within the 15-working-day timeframe. If an applicant agrees to provide the information, the council must set a reasonable date by which the information needs to be received and advise the applicant in writing of this date.

Questions for a council to consider when setting a reasonable date include:

When setting the new timeframe, keep in mind the duty under s21 to avoid unreasonable delay. Remember particularly with notified applications, that other persons are involved with the application and long delays in its processing can result in uncertainty.

It is good practice to discuss the new timeframe for providing the information with the applicant, before issuing the extended timeframe in writing.

Section 88C states an application comes off hold when:

whichever is the earlier (unless a new timeframe to supply the information has been set).

The council officer should contact the applicant just before the expiry of the timeframe with a reminder of the need to respond.
What this means is, the council must continue to process the application if the applicant:

The council may refuse the application on the basis of insufficient information if it is not provided or not received within the set timeframe.

If the further information is provided, this must be made available for public inspection no later than 10 working days before the hearing of an application.

If the requested information is provided slightly after the deadline, it would be good practice to continue to process the application on the basis of the new information. However, s37 could be used to ensure timeframes are met.

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Commissioning reports from other people

Section 92(2) allows councils to commission reports on matters relating to an application if:

As with general further information requests, the applicant must be notified in writing of the request and the reasons for it. The estimated cost of commissioning a report should also be advised. See: Example: Letter to applicant to request the commissioning of a report (MS Word 28 KB).

Note that if the applicant does not agree to the commissioning of a report under s92(2), and the council considers that a report is required to adequately assess and evaluate an application, councils may still rely on s42A (Reports to local authorities). However, using s42A would not ‘stop the clock’ and the council may need to consider extending timeframes under s37 in this circumstance.

The commissioning of reports should be confined to matters that are critical to making an informed decision on a proposal – particularly on aspects that may have significant adverse consequences, eg, exacerbating the risks from natural hazards.

Generally, reports are commissioned for larger-scale or complex projects where specific expertise is required. For example, a proposed new mining activity may have significant adverse effects on ground stability on surrounding properties; the council may seek a report by a qualified geologist evaluating the applicant’s information provided.

Where a proposal may have a significant effect on Māori cultural values, such as those covered in RMA Part 2 matters, a cultural impact assessment (CIA) may be required. See Frequently asked questions about Cultural Impact Assessments (CIAs).

Upon receipt of notification from the council of the intention to commission a report, the applicant has 15 working days to advise the council whether or not the commissioning of a report is agreed to. The applicant can object under s357.

Example: Letter for commissioning report from an expert (MS Word 27KB) .

If the request for a report is agreed to and commissioned, the report must be available for public inspection no later than 10 working days before the hearing. It is advisable to ensure all the parties interested in the application (for example any submitters or people to be served notice) are aware that a report has been commissioned and is available for public inspection.

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What to do when the applicant refuses to provide information, does not meet timeframes, or refuses for a report to be commissioned?

A council may decline an application, in accordance with s92A(3) if the applicant:

This also applies where a council wants to commission a report (s92B(2)).

The applicant needs to be made aware of the consequences of not providing the requested information or agreeing to a report being commissioned. The following means could be used to advise an applicant:

The applicant should be made aware that the application will continue to be processed on the basis of the information that has been provided; and that, if the application is so deficient that the effects can not be adequately determined, it is likely to be declined.

Declining an application on the basis of insufficient information should be undertaken with caution and only where there are very obvious deficiencies in information. Before taking this step, consider who may be affected by the application and whether notification is appropriate. These findings should be clearly documented.

When deciding how to progress an application that is deficient of information, the council needs to consider how essential the missing information really is.
Key aspects to consider include whether:

If there is insufficient information in an application for the council to make a notification decision, then the default presumption in the RMA is for notification to occur.

If the application is to be notified, then the applicant should be advised that this is so, and that without the requested information or expert report that the application may subsequently be declined on the basis of having insufficient information; further, that any hearings commissioners might also request that further information be provided during the hearing, with hearing adjournment and consequential delays the likely result.

If the application is declined due to a lack of information and the decision is appealed, the Environment Court must decide whether or not the council had sufficient information to determine the application. If the Court decides there was sufficient information, then the Court must hear and decide the application.

If the application should have been notified and was not, then the Court may have to determine the application without any opportunity for submissions or other involvement by affected persons. See PN Industrial and Residential Developments Ltd v Palmerston North City Council [2007] W73/2007

Applicant objection and appeal rights to a further information request and/or the commissioning of a report

An applicant may lodge an objection to formally challenge the validity of a further information request or a request to commission a report, in accordance with S357A(1)(b) and (c), following procedures set out in 357C. The applicant also has a right of appeal on the council’s decision on that narrow issue (s358).

Hearing the resource consent application where further information has not been provided

Whether a hearing is required to make a decision under s92A(3) will depend on the council’s delegations. If a hearing is needed, the applicant should be made aware of the following: despite exercising a legal right under the RMA not to provide information, it is possible that during the course of the hearing:

Either alternative, or a combination of both, may apply.

Appeal rights on a council decision to decline an application under s92A(3)

If the council declines an application under s92A(3), the applicant may appeal this decision; in that case the full application will go before the Court (see PN Industrial and Residential Developments Ltd v Palmerston North City Council [2007] W73/2007). Provided the application was notified, any submitter may become a party to the court proceedings under s274.

In hearing the appeal, the Court will firstly decide if the council did in fact have sufficient information to enable it to determine the application. Should this be the case, the Court will then hear and decide the appeal in accordance with s92A(6).

If the Court decides that the council did not have sufficient information to enable it to determine the application, it must decline the appeal (s92(A)(5)).

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How many times can further information be asked for?

The RMA does not specify a limit on the number of times a council can ask for further information. However, it is good practice to keep requests to a minimum and to make only one request for further information per application (except repeated requests for the same information, or further requests relating to the clarity or content of any further information supplied). Sometimes a submission raises an issue that was not previously apparent; this may also may trigger a request for further information.

Further information requests should not be used as a method to stall or buy time in the resource consent process.

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Check the further information received

An application comes off hold on the date the applicant provides the further information. Therefore it is important that the further information is checked for adequacy upon receipt.

The information received should be checked against the official s92 request, to ensure all the matters required to be covered have been adequately addressed. If the applicant has not satisfactorily covered all matters in the request, a further request for information may be required. As a minimum, adequate information must be provided to allow an application to proceed to notification (see Upper Clutha Environmental Society Inc v Queenstown-Lakes District Council and Geotherm Group Ltd v Waikato Regional Council).

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What happens to the processing timeframes if a section 92 request is made?

In making a s92 request, the RMA allows a council to postpone:

If the council has requested an applicant to supply further information, the application is placed on hold from the date the request was made. The applicant then has 15 working days to reply. The application comes off hold when:

At the time the application comes off hold, the processing ‘clock’ must be re-activated: it must not be reset to zero.
If the council has notified an applicant of its intention to commission a report and the applicant agrees to this, the application is placed on hold from the date the applicant is notified and when the report is received. However if the applicant does not agree to the commissioning of a report, then the application comes off hold either (whichever is the earlier):