Extending the timeframes
Sections 37 and 37A of the RMA allow a council to extend the time limits specified in the RMA. Extensions of time only apply to applications for resource consent, changes or cancellations of conditions or reviews of consents (s37A).
Under s37A(4), a council can extend a time limit for up to double the maximum period specified in the RMA when:
- special circumstances apply (including special circumstances existing by the scale and complexity of the matter); or
- the applicant agrees to the extension.
The council must also take into account the matters in s37A(1), which include:
- the interests of any person who may be directly affected by the extension or waiver; and
- the interests of the community in achieving an adequate assessment of effects;
- the duty under s21 to avoid unreasonable delay.
The council must also ensure every person who it considers is directly affected by the extension of the time limit is notified of the extension.
Under s37A(5), a council may extend the time to exceed twice the maximum time period specified in the RMA only if the applicant agrees to the extension and the matters in s37A(1) have been taken into account.
Close communication with the applicant is required when proposing the use of s37A. Applicants need to be contacted as early as possible if there may be a need to extend time frames and given reasons why. Applicants are likely to be more agreeable to an extension of time frames when they understand the reasons why.
When the applicant does not agree to an extension of time, s37 can then only be used where there are special circumstances. Where the applicant's agreement has not been obtained, the use of s37-37A should be supported by clear reasons why special circumstances are considered to exist which require an extension of time. This should only be when the delay is outside the control of the council and may include the scale or complexity of the application. It should not relate to when there is a high workload at the time or other internal resourcing issues.
Time extensions may be appropriate in the following situations:
- to undertake further consultation where there is significant complexity or uncertainty about effects
- to gain agreement on consent conditions if the applicant wishes to discuss these prior to the decision
- for a hearings committee or commissioner to make and compile a decision on an application of large scale or complexity
- to review a complex assessment of environmental effects associated with a large scale proposal.
Determining whether special circumstances exist will need to be done on a case by case base for individual projects. Special circumstances in the context of notification have been defined as circumstances that are unusual or exceptional, but may be less than extraordinary or unique. Refer to the To Notify or Not to Notify guidance note for more information on special circumstances in the context of notification decisions.
When a section 37 extension is made, the reasons for the extension and each timeframe extended need to be recorded. There is no barrier under the RMA to extending all timeframes for a consent application at once, provided all section 37A criteria are met for each extended timeframe.
Where ss37 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 ss37 and 37A have not been exceeded.
