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Requesting further information

Abstract

Once applications have been formally received by councils, councils are then required to assess them for completeness in terms of describing the nature of the proposed activity, any effects it will have and how any adverse effects may be avoided, remedied or mitigated. The council will subsequently make an assessment of the relevant objectives and policies of the plan. Section 92 of the Resource Management Act allows councils to request further information or commission a report at any reasonable time before the hearing of an application where additional information is required. In both cases, the applicant has the right to refuse to provide 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 the processing timeframes for resource consents.

This Guidance Note provides some helpful hints about how to ask for further information, when to ask for it, how to deal with situations where the applicant refuses to provide further information or the commissioning of a report, how many times it can be asked for and how to check further information once it is received.

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Guidance note

Further information - what is it and how should it be asked for?

Section 92 - further information

Section 92 of the Resource Management Act (RMA) enables a consent authority to request further information from the applicant or request an applicant to agree to the commissioning of a report if the consent may have a significant adverse environmental effect. While the Act does not specify what things further information may be requested for, a request should generally relate to providing a better understanding of:

Any further information sought should be a reasonable request and not for trivial matters which do not add to the understanding of the application.

From time to time, a council may also need to request further information regarding legal access, the nature of easements, and confirmation of ownership, which will all assist the council to better understand the application.

Any further information sought should not:

The Resource Management Amendment Act (RMAA) 2005 introduced new requirements and a new process for requesting further information. This process is detailed in the section 92 flowchart.

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When should further information be asked for?

The RMA currently enables a consent authority to request further information at any reasonable time before the hearing of an application or before the decision to grant or refuse 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 so that no unreasonable delays are incurred, also taking into account the statutory timeframes that need to be met for notification purposes (i.e. notification should occur within 10 working days of receipt of the application if the clock has not been stopped due to a further information request). This should also allow time for a site visit prior to deciding to request further information.

It is good practice to minimise the number of times further information is requested. Where possible a council officer should require, in the first instance, sufficient information to allow an application to be notified (e.g. 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 prior to a hearing and 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. Applicants have the right of refusal and objection to any request for further information (sections 92(5) and 357).

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 district and/or regional plan/s. This will highlight where there are 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 who receive a request for further information from council must reply within 15 working days of the request. Applicants have three options when responding. They can either:

The applicant must tell the council what they intend to do in writing within the 15 working day timeframe.

If the applicant agrees to provide the information the council must then set a reasonable date by which the information needs to be received and advise the applicant in writing of this date.

Section 88C makes it clear that an application comes off hold when either:

What this means is:

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

Commissioning reports from other people

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 applicant should also be advised of the estimated cost of commissioning a report. See:

Example: Letter to applicant to request the commissioning of a report (MS Word 28 KB).

Note that should the applicant not agree to the commissioning of a report under section 92(2), and the council considers that a report is required to be able to adequately assess and evaluate an application, they may still rely on section 42A. However, using section 42A would not “stop the clock”. The council may need to consider extending timeframes under s37 in this circumstance.

Generally reports are commissioned for larger scale or more complex projects where specific expertise is required. For example a new mining activity may be proposed that may have significant adverse effects on ground stability on surrounding properties and the council may seek a report from the applicant evaluating the information provided from a qualified geologist.

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 Assessment (CIAs) .

Once the applicant receives notification from the council of the intention to commission a report, the applicant has 15 working days to advise the council whether or not they agree to the commissioning of a report. The applicant can object under section 357 to the commissioning of a report upon receiving notification from the council.

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.

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

Make sure 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.

As with requests for further information, Section 88C makes it clear that an application comes off hold when either:

The council must continue to process the application, if the applicant doesn’t respond within 15 working days. They must also continue to process the application if the applicant refuses to agree to the commissioning of a report.

The council could still commission a report under section 42A. This would require careful consideration, as it is a balance between understanding the nature of the application and removing the onus from the applicant to provide sufficient information.

The council may decline the application if it considers that it has insufficient information to make a decision on the application.

The applicant has appeal rights and can appeal a decision to decline the application to the Environment Court. The Environment Court then has the responsibility of deciding whether or not the consent authority had sufficient information available to determine the application. If the Court decides that sufficient information was available it must hear and decide the application.

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

The RMA does not specify whether the decision to decline an application on the basis of insufficient information should take place before a decision on notification or after.

When making a decision how to progress with a deficient application, the council should consider whether the application should be notified before determining whether to decline the application. In doing so, the council has to bear in mind that the Courts have also said that there needs to be sufficient information available to come to a reasoned decision on whether or not to notify an application in the first place.

If a decision is made to decline the application for the reason of insufficient information which the Court subsequently overturns and the application should have been notified and was not, then the Court may have to determine the application without any opportunity for submissions by affected persons. The risk of this happening is not great however because the Court can not approve an application if it should have been notified in the first place.

Each case should be judged on its merits, taking into account the amount of information that is available with the application.

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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 consent authority 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 (unless it is a repeated request for the same information or further requests relating the clarity or content of any further information supplied). Sometimes something raised in a submission that was not otherwise apparent 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

As with the initial assessment of the application, the assessment of further information received should be undertaken as soon as possible after the date of receipt of the information.

The information received should be checked against the official section 92 request to ensure that all the matters required to be covered have been adequately addressed. If the applicant has not satisfactorily covered all the matters in the request, then a further request for information may be required. In the least, 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 section 92 request, the RMA allows a consent authority 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. If the applicant responds within the 15 working day timeframe, the application comes off hold when the information is received. At that time the processing 'clock' must be restarted and must not be reset to zero.

If the applicant does not respond to the further information request within 15 working days then the application comes off hold 15 working days from the date of the request. Alternatively, if the applicant agrees to supply further information and it is not received by the date prescribed by the council, the application will come off hold on the prescribed date.

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 either the application comes off hold 15 working days from when they was informed or when the consent authority receives notice from the applicant that they refuse the commissioning of a report, whichever is the earlier.

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Forms and checklists

Example: Checklist for processing officer (MS Word 89KB)

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

Example: Section 92 letter (MS Word 27KB)

Example: Letter to applicant to request the commissioning of a report (MS Word 28 KB)

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Case law

The following cases contain discussion on Section 92 matters:

Geotherm Group Ltd v Waikato Regional Council AP26/03 – this decision provides discussion about the appropriate level of information that should be available in order to allow notification.

Bletchley Developments Ltd v Palmerston North City Council (No 1) [1995] NZRMA 337 (PT) – this decision recognises that a Council cannot utilise Section 92 to buy itself more consent processing time.

AFFCO NZ Ltd v Far North District Council (No 2) [1994] NZRMA 224 (PT) – Consent authorities should refrain from assessing, notifying, hearing or considering applications until all necessary information is received.

Upper Clutha Environmental Society Inc v Queenstown Lakes District Council EnvC C34/2002 - Section 92 does not require all information to be supplied to the consent authority prior to notification, only adequate information.

Aqua King Ltd v Marlborough District Council [1995] NZRMA 314 (PT) - a request for further information may include requesting information on consultation undertaken.

Eastcote Developments (2005) Limited v Tauranga City Council A 013/2006: Considers an objection under section 357 to a section 92 request for further information in relation to a restricted discretionary subdivision.

Wakatu Inc v Tasman DC CIV-2007-442-205 (HC) - the relevant test is "whether the application has sufficient information for submitters to assess the effects on them".

Tuck Western Bay of Plenty DC A044/06 - supplementary information requested under s92 cannot enlarge an application but may limit its scope.

PN Industrial and Residential Developments Ltd v Palmerston North City Council W073/07 - this case highlighted a flaw in the s92 and 92A processes. If a council decides there is insufficient information to determine the application and an applicant appeals this decision, the Court will then be required to determine an appeal where there has been no opportunity for the public or those adversely affected to participate or become involved in the appeal process.

Central Plains Water Trust v Ngāi Tahu Properties Limited [2008] NZCA 71 - an application for resource consent to take water which, although requiring water use applications could not, as filed, be rejected as a nullity, takes priority over a competing application (note: subject to Supreme Court appeal to be heard October 2008.

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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.

Auditing Assessments of Environmental Effects: A Good Practice Guide
Published by Ministry for the Environment - March 1999
This guide outlines good practice for regional and district councils in auditing assessments of environmental effects. The Resource Management Act requires each resource consent application to be accompanied by an assessment of environmental effects. Councils need this information to make informed decisions on granting resource consent and setting conditions to control potential effects.

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.

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Relevant websites

The following are a selection of websites that may be of assistance and are relevant to this guidance note:

The Environmental Defence Society has a website with information for applicants on all parts of the resource consent process. This includes a flow diagram of the entire process. It also has information on what happens when an application is received by a consent authority and further information required. Go to Environmental Defence Society's Processing of Resource Consent Applications.

Environment Canterbury's website contains webpages providing information for the applicant on applying for a resource consent, the information that needs to be provided and receipting applications. Go to Environment Canterbury's Applying for a Resource Consent.

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Current challenges in practice

Getting information on Māori cultural values

Often it is difficult to know if a proposed activity will have an affect on Māori cultural values. If in doubt, contact your local tangata whenua.

If no consultation with tangata whenua has been reported in the Assessment of Environmental Effects that accompanies an application, and the activity is in an area, or may affect a resource of known importance to tangata whenua, comissioning a cultural impact assessment (CIA) is good practice. A CIA can identify likely effects of a proposal on Māori cultural values and interests. Early identification of potential effects can enable modification of the proposal to avoid potential effects and assist in identifying how the effects can be remedied or mitigated.

See Frequently asked questions about Cultural Impact Assessments (CIAs) for more information.

Deciding if specialist auditing is required

Often it is difficult to determine if an application warrants specific auditing by someone with a specialised area of expertise. Previously the RMA did not specify that the applicant had to agree to the report being commissioned but rather the applicant be notified that the report will be commissioned.

However, the 2005 amendments to the RMA now require the applicant to be advised in writing of the intention to commission a report and the reasons for it and their agreement to the report being commissioned is also required. An issue arising from this is if the applicant does not agree to the report they run the risk that the consent may be notified and/or declined on the grounds of insufficient information. However appeal rights afforded to the applicant should ensure that the decision to decline is made cautiously by council and on solid grounds.

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

It may also be of assistance to provide an estimate of the likely costs associated with such a report. In some cases it may be appropriate for the costs to be shared between the applicant and the council, if the information would also benefit the council for its own purposes. An example could be a traffic study of a particular intersection which would also benefit the council.

Auditing should only be used when the matter is critical to determining the application and where the consequences of not obtaining accurate information may be significant (for example, traffic safety, cultural impacts). Auditing should only be used when some independent form of verification is needed.

Keeping to timeframes

During heavy workload periods it can be difficult to keep to the timeframes set down in the RMA. Consequently requests for further information may occur some way through the process when ideally they should occur nearer to the time the application is lodged. Further information requests should occur within 5 working days of receiving the application. This is so that all necessary information is available prior to the notification time limit. While the extension of timeframes prescribed by the Act is not encouraged unless there are unusual circumstances or the application is particularly complicated, there is capacity provided in Sections 37 and 37A to extend the timeframes in the RMA by no more than twice the maximum allowed. The recent amendments to s92 should also ensure that further information is received in a more timely manner.

The way in which further information is requested

Again, in times of heavy workload the need to request further information in writing may be over looked with people relying on phoning the applicant with a request. Section 92 specifically requires further information requests to be made in writing which is particularly important as a result of the new timeframes introduced by the RMAA 2005. Where further information requests are not made in writing misunderstandings can easily occur. This can lead to either the wrong information being supplied or more information being requested later in the process in order to further clarify matters. Without a formal written request the applicant may not remember exactly what was requested, or misinterpret what was requested. Providing a written request also allows for a record of what was actually required and on what date for tracking and recording key timeframes. A written request also ensures that the applicant is formally advised that their application is put on hold and that they have objection rights under Section 357A of the Act. The further information request can always be faxed or e-mailed to avoid delays to the applicant.

Timing of site visit

It is sensible to do a site visit before a s92 request, because it is difficult to understand the nature of an application, its effects, and who may be adversely affected without a site visit. If a site visit is carried out after a s92 request it could potentially lead to the need for a further s92 request which could have been avoided.

For example, a site visit may highlight some issues about the proposal that may have not been identified in the application. It is a judgement call made by the processing officer as to the best time to undertake a site visit and this may vary between different applications. It is always a good idea to contact the applicant before doing a site visit to ensure access is available and find out about potential on-site hazards.