There are two main ways that a requirement can be processed, depending on whether the requirement is processed alone, or as part of a proposed district plan process.
The process for requirements processed on their own
The process for a notice of requirement that occurs outside a proposed plan process follows a similar path to that required for resource consents.
- the need to provide information to support the notice of requirement, which includes an assessment of environmental effects of the proposed work
- the ability of the territorial authority to request further information
- the notification of a requirement if the territorial authority decides this is necessary and subsequent submission and hearing processes.
1. Processing a notice of requirement
Generally, processing a notice of requirement is similar to processing a resource consent application.
Where a territorial authority serves a notice of requirement on itself, generally an operational section of a council (acting as the requiring authority) would give notice to the planning section (as territorial authority). It may be appropriate for independent consultants to process a council-initiated notice of requirement.
A territorial authority should follow these steps on receipt of a notice of requirement:
- Check the status of the requiring authority against the definition in the RMA (s166). If the requiring authority is a network utility operator, there will be a Gazette notice approving it as a requiring authority. The Ministry for the Environment also holds a list of current requiring authorities. It is common practice for network utility operators to provide a copy of the relevant gazette notice with the notice of requirement. However, if necessary, seek clarification from the requiring authority that they are an approved requiring authority, and are financially responsible for that designation (required for Ministers or local authorities to issue notices of requirement – see s168(1)).
- Check the notice of requirement includes sufficient information to enable the territorial authority and potential submitters to understand the proposal and be able to ascertain the effects that the proposed work or activity will have on the environment and whether it may impact on them or their land.
- Send a letter to the requiring authority acknowledging receipt of the notice of requirement.
A territorial authority (or the EPA) can request further information under s92 of the RMA and may delay processing until the information is received (apart from in respect of s168A applications). Sometimes, to expedite the process, the territorial authority and requiring authority may agree a programme for the delivery of further information. For example, in respect of what information is needed before notification and what might be needed before a hearing.
2. Notification and submissions
A territorial authority (or the EPA) must decide whether to notify the notice of requirement under ss95A to 95F. Time limits for notification (s95) do not apply if a notice of requirement is by a territorial authority to the same authority (s168A application). Alternatively, s170 provides territorial authorities with the ability to include a notice of requirement within its proposed plan provided that this is done within 40 working days of receipt of the notice of requirement.
Where public notification does take place, the procedures for a notice of requirement are the same as for a resource consent under sections 96 to 103 of the RMA, including requiring that notice is served on every person prescribed in Regulation 10 of the Resource Management (Forms, Fees and Procedures) Regulations 2003. As with a resource consent application, notification must be given in accordance with sections 95A to 95F.
The details of the public notices differ depending on the type of requiring authority:
- Form 19 of the Resource Management Forms Fees and Procedure Regulations 2003 is used if the requiring authority is the Minister, local authority or a network utility operator
- Form 20 of the Resource Management Forms Fees and Procedure Regulations 2003 is used when the territorial authority is the requiring authority.
As with notified resource consents, the closing date for serving submissions on the territorial authority is the 20th working day after public notification, in accordance with s97. Submitters are required to serve a copy of their submission on both the territorial authority and the requiring authority. The territorial authority is also required to send a list of all submissions received to the requiring authority.
Given the notice of requirement process is similar to a notified resource consent and results in an amendment to the district plan, it is best practice for an application to be dealt with jointly between resource consent and policy planners, with the resource consent planner taking the lead role.
3. Pre-hearing meetings
While not mandatory, a pre-hearing meeting can be useful to clarify and resolve as many issues as possible before a hearing.
Pre-hearing meetings provide an opportunity to outline the notice of requirement process and decision-making powers to submitters, provide details of the proposed works, and explain how the process differs from the resource consent process, and clarify any submissions received.
As with any notified resource consent application, a territorial authority is not required to hold a hearing unless the territorial authority considers that a hearing is necessary or a hearing is requested by either the requiring authority or a submitter. A territorial authority should consider appointing an independent commissioner or commissioners to sit on the hearing panel, especially when it is making a decision on its own notice of requirement or making a recommendation on a notice of requirement that is particularly controversial.
All the powers and duties in relation to hearings contained in sections 39 – 42A apply to hearings for notices of requirement. Section 103A which provides time limits for completion of adjourned hearings does not apply.
If the requiring authority also requires resource consents from the regional council, a joint hearing can be held. However, a territorial authority cannot delay the processing of a notice of requirement while waiting for the outcome of any resource consent applications.
The process for requirements processed as part of a proposed district plan
Schedule 1 of the RMA specifies how requirements and designations are dealt with in proposed plans. This includes roll-over designations and requirements that are intended to be notified through the proposed district plan in accordance with s170. Refer to guidance for including notices of requirement in a proposed plan.
A rolled-over designation is a designation that was in the operative district plan and that the requiring authority requests to have included (rolled over) into the proposed district plan.
As with any plan review or preparation process, there can be considerable delays until a requirement is included in a proposed district plan through the 1st Schedule process. A requirement can only be relied upon once it is included in an operative district plan as a designation. However, s178 provides for a proposed designation to have interim effect so that no person may do anything that would prevent or hinder the public work, project, or work to which the designation relates unless that person has the prior written consent of the requiring authority.
1. Plan early
Rolling over designations and requirements that are intended to be notified through the proposed district plan requires early and thorough forward planning in the plan preparation process.
Requiring authorities should be provided with an extended period of time to prepare and ensure better planning outcomes are achieved. This helps to avoid the council dealing with a flood of requests from requiring authorities at the last minute and to enable better planning through adequate review.
Requiring authorities should also be provided guidance about what the council expects, including:
- the council's process and time frames
- any additional steps the council will take (such as getting requiring authorities to check their designations in the proposed plan schedules before notification)
- the level of detail required in the notice, including any proposed conditions
- details of the size, scope, precision, and format required for maps.
2. Establishing a process and time frames
Sufficient time and council resources should be allocated to allow for including designations as a separate process component of the overall plan review process.
The following steps may help to manage the process as part of the plan review:
Appoint one person as a 'Designations Project Manager' or with overall responsibility for managing the roll over of existing designations and introducing new requirements. The Designations Project Manager should be part of the plan review project team or have input into that team so that overall plan review time frames are achieved.
The plan review project team will need to provide advice and assistance to the Designations Project Manager. They should be experienced in processing notices of requirement and roll overs.
Legal overview and input can also be critically important during this process, particularly when dealing with the adequacy of information or the notification process.
Clearly define the process, timelines, responsibilities, and resources of the plan review project team required throughout the process. Consider contracting work out to consultants if the resources are not available within the council. The council will still retain responsibility for the outcome.
A good administration and filing system from the outset is essential. Set up an appropriate file management system so that the multitude of requests can be safely handled. Many councils set up master files for each requiring authority, and a second tier of files for each rollover request or new requirement.
It is important to ensure that the decision makers and council officers are fully informed on the differences between new, rolled over and modified designations, what the council makes decisions on and what it makes a recommendation on. This should occur early on in the process, as it will help to avoid any problems or issues raised throughout the process.
3. Calling for existing designations to be rolled over
Before notifying a proposed district plan, clause 4(1) of Schedule 1 of the RMA requires a council to invite all requiring authorities that have designations in the operative district plan (which have not expired) to give written notice stating whether they require the designation to be included in the proposed plan, with or without modification. This letter must state a final date by which the requiring authority is to provide its written notice to the council. The council must give the requiring authorities at least 30 working days to respond. However, this time frame may not be a realistic time frame for larger councils and requiring authorities to achieve quality results.
If a requiring authority wishes to roll over an existing designation into a proposed district plan it must send the council a notice of this within the specified time frame. At this stage the requiring authority's notice must also specify whether any modifications to the designation are proposed. If modifications are sought, the requiring authority is to include in its notice the nature of and reasons for the modifications.
If the requiring authority fails to notify the council within the specified time, the designation must not be included in the proposed plan. However, where appropriate, the council could choose to waive the time frame under s37(1)(b) to provide for a longer period of time, up until when the plan is notified. Once the proposed plan is notified, no further designations can be rolled over. A new notice of requirement would have to be issued by the requiring authority (essentially, starting the designation process from scratch).
While rolling over of designations does not oblige a requiring authority (including a council) to review its designations, it is timely for reviewing them for accuracy, relevance, and the appropriateness of any conditions. It also opens designations to public submissions through the plan notification process. This is important as a designation, once confirmed has essentially the same effect as a rule in the Plan.
Requiring authorities should review the wording of their designations carefully, and where necessary request modifications to address inadequate wording. The need for modifications may arise from changing land uses, technology, and public understanding.
It is also possible that the purpose of historical designations is described by a single phrase such as 'defence purposes'. Such designations contain little guidance to the requiring authority, council or public as to what activities are authorised and how they are to be regulated. The clarity of the wording describing the 'designated purpose' should provide sufficient clarity for the potential uses of the land. When dealing with a rolled-over designation, the council may consider liaising with the requiring authority to seek conditions that provide more certainty. If necessary, councils have the option of making a submission on the designation through the plan review process which may seek clarification of designated purpose or further conditions.
When calling for existing designations to be rolled over the council should:
- Ensure designations to be rolled over have not lapsed (although this should have already been done).
- Check the status of the requiring authority and seek clarification if necessary.
- Refer the list of current requiring authorities
- Ensure requiring authorities are responsible for specific designations.
- Remind requiring authorities of the five-year expiry timeframe under s184. Requiring authorities need to specify and justify a longer timeframe for a rolled over, modified, or new designation, if they do not envisage 'giving effect to the designation' within five years of the plan becoming operative.
The plan review process sets out the steps involved, including calling for existing designations to be rolled over, notification of the proposed plan, submissions, hearings, decisions and recommendations and appeals.
4. New requirements
Where a council has received a notice of requirement under s168 and proposes to notify a proposed plan under clause 5 of the Schedule 1 of the RMA within the following 40 working days, the council may, with the consent of the requiring authority, include the requirement within its proposed plan instead of using the process under s169.
A requiring authority must submit a notice of requirement to the council for any new designation to be incorporated into the proposed plan.
The council should advise requiring authorities who have lodged new notices of requirement of any likely changes to the date of public notification of the proposed district plan, so that they can choose whether to re-lodge them for inclusion within the proposed district plan.
5. Assessing new notices of requirement and rolled-over and modified designations
Councils should ensure that new notices of requirement received at the time of plan review are subject to the same robust assessment that they would receive if lodged at any other time. Any requests for further information on new notices of requirement must be made prior to the notification of the proposed district plan. While a council can not lawfully request any further information on rolled over or modified designations, if necessary, the council should negotiate with the requiring authority to provide additional information prior to notification of the proposed district plan. This may avoid the need for the council, and other parties, to subsequently make submissions on these.
Receiving adequate information from the requiring authority for rolled-over designations and new requirements is necessary for robust review and assessment. The public needs good information on which to base submissions, and the council or commissioner needs good information on which to base any recommendation.
6. Notifications and submissions
Until this point, the process for rolled-over designations and inclusion of (new) requirements in a proposed plan should have run as a separate (often parallel) process to the overall plan review. The two processes integrate when the roll-over designations and requirements are put into the proposed plan for public notification.
In addition to the general notification of the proposed district plan, councils are required under clause 5(1B) of the Schedule 1 to individually notify landowners or occupiers who are likely to be 'directly affected' by the requirement. The term 'directly affected' is unique to notification of notices of requirement (and Heritage Orders). It contrasts with the term 'adversely affected' used in relation to resource consent notification.
Public notices must include:
- where the proposed policy statement or plan may be inspected
- a statement that any person may make a submission on the proposed plan
- the process for public participation in consideration of the proposed plan
- the closing date for submissions
- the address for service of the local authority.
A council may lodge submissions on any rolled-over designation or new requirement contained in its own plan. This can occur where the council considers that a designation is insufficiently described or requires (more) conditions.
Councils should carefully consider whether to make a submission on a rolled-over designation or new requirement. It may be the only opportunity to request changes to a designation as part of the plan making process. It also provides the basis for any subsequent issues to be raised and arbitrated through the Environment Court. If no submissions are made then the council must, at the request of a requiring authority, include the designation as is, in its plan at the end of the plan review process. Refer to guidance for including notices of requirement in a proposed plan.
The council will then summarise any submissions on designations, along with submissions on other provisions of the proposed district plan, and publicly notify the availability of the submission summary and the closing date for further submissions.
The council will then hold a hearing if requested or necessary. Hearings are required on any submissions received on notices of requirement notified in the proposed district plan. If no submitters wish to be heard, or requests to be heard are withdrawn, a hearing may not be required.
Notices of requirement for proposals of national significance
If the ‘national significance’ criteria in s142(3) are met, s145(3) allows a requiring authority to lodge a notice of requirement for a designation or to alter a designation directly with the Environmental Protection Authority (EPA). The Minister may also, at his/her own initiative, decide to ‘call in’ a proposal of national significance.
The EPA is required to make a recommendation to the Minister within 20 working days of receiving the notice of requirement, requesting a direction from the Minister to either refer the matter to a board of inquiry, the Environment Court, or the local authority.
In deciding on making a direction, the Minister must have regard to the views of the applicant and the local authority, the capacity of the local authority to process the matter and the recommendations of the EPA.
If the notice of requirement is referred to a board of inquiry or the Environment Court, these bodies make a final decision on the notice of requirement, and not a recommendation to the requiring authority, as would be the case if the local authority processed the designation and they were not the requiring authority.
Independent commissioners may be used to make decisions for a territorial authorities recommendations on a notice of requirement. An independent commissioner must also be delegated the decision-making duties where requested by the applicant or a submitter under section 100A of the RMA.
The use of commissioners can also be beneficial where:
- the notice of requirement raises matters that are very complex and/or technical in nature
- a territorial authority may be perceived as having a conflict of interest (such as considering its own notice of requirement)
- a territorial authority has other commitments (such as the review of the long term plan or district plan)
- the requiring authority requests the use of commissioners.
If using independent commissioners, it is important to ensure that any commissioners have the correct delegated authority to consider notices of requirement and make decisions or recommendations on behalf of the territorial authority. Delegation of functions under section 34 can not extend to the final approval of a plan or change to a plan.
Recommendations and decisions
Under s171 a territorial authority can only make a recommendation on a notice of requirement (where the notice of requirement is not council initiated) to a requiring authority to:
- confirm the requirement
- modify the requirement
- impose conditions
- withdraw the requirement.
Where a territorial authority serves a notice of requirement on itself (s168A) the territorial authority decides on the application, on the basis listed above (as the territorial authority is also the requiring authority).
When making the recommendation (or a decision in the case of s168A notices of requirement), a territorial authority must have regard to matters listed in s171(1) (for s168 notices of requirement) and s168A(3) (for s168A notices of requirement). Unlike resource consents, a territorial authority is not required to consider the matters in s104.
Territorial authority recommendation
Section 171 sets out what a territorial authority must and must not have regard to when considering a requirement and any submissions, and making a recommendation on the requirement.
Section 171(1A) requires territorial authorities to not have regard to trade competition or the effects of trade competition.
Section 171(1) requires the territorial authority to, subject to Part 2, consider the effects on the environment of allowing the requirement, having particular regard to:
- any relevant provisions of a national policy statement, the New Zealand Coastal Policy Statement, a regional policy statement or proposed regional policy statement and a plan or proposed plan
- whether adequate consideration has been given to alternative sites (discussed further below), routes, or methods of undertaking the work if the requiring authority does not have an interest in the land (i.e. does not own or lease the land) or it is likely that the work will have a significant adverse effect on the environment
- whether the work or designation is reasonably necessary for achieving the objectives of the requiring authority for which the designation is sought
- any other matter it considers necessary to make a recommendation on the requirement.
Territorial authorities also need to carefully consider the wording of the recommendation. Any recommendation on a notice of requirement must be accompanied by reasons for that recommendation as required by s171(3).
Territorial authorities must also take into account relevant national environmental standards when making a decision on a notice of requirement. Section 43D(4) states that national environmental standards prevail over a designation where the standard exists before the designation is made.
Consideration of alternatives
The Environment Court has determined that the Court only needed to consider whether the requiring authority had acted arbitrarily or given cursory consideration to alternatives or whether it had carried out sufficient investigations of alternatives to satisfy itself as to the site put forward. The relative merits of each alternative do not need to be assessed or compared.
Section 171(1) is ‘subject to Part 2’ of the RMA. In terms of the consideration of alternatives under s171(1)(b) being subject to Part 2, a requiring authority does not have to show it has selected the best of all available alternatives, just that a careful assessment has been made of the relevant proposal to determine whether it achieves the RMA’s purpose. The consideration of a notice of requirement being ‘subject to Part 2’ does not allow the Court on appeal to decide whether some other project alignment or design would better meet Part 2 requirements.
If a rolled-over designation is included in the proposed plan without modification and no submissions are received, the council cannot make a recommendation or decision. The council must simply include the rolled-over designation in the proposed district plan.
Requiring authority decision
Within 30 working days of receiving the territorial authority’s recommendation, the requiring authority must advise the territorial authority of whether it accepts or rejects the recommendation, in whole or in part. The requiring authority can only modify a requirement if the territorial authority has recommended the modification, or if the modification is not inconsistent with the notice of requirement as notified.
If the requiring authority rejects the territorial authority’s recommendation in whole or in part, or modifies the requirement, the requiring authority must give reasons for its decision and must advise the territorial authority of its decision.
Wording of designations
Requiring authorities should consider the wording of their designations carefully, particularly when they are being rolled over into a proposed district plan, i.e. is the purpose of the designation (the nature of the works to which it relates) clearly explained? Changing land uses, technology, and public understanding may gradually make the original wording inadequate.
Territorial authorities should also consider the designation description carefully, particularly when assessing whether a proposed activity or proposed work falls within the designated purpose of a site. The territorial authority also needs to look at the requiring authority’s decision and any conditions imposed to determine the scope of the designation.
Conditions on designations
The territorial authority can recommend that conditions be imposed on a new requirement or a rolled over designation, where it considers that conditions are necessary (or impose conditions where it is both the requiring authority and ‘recommending authority’).
Conditions cannot be imposed on rolled-over designations where these are not being modified and no submissions have been made.
Conditions provide clarity and certainty in setting the parameters within which a designation may give effect to the public work or project to which it relates. If accepted by the requiring authority, conditions become an integral part of the designation and cannot be removed from the activities undertaken on it. When recommending a condition, the territorial authority should have regard to the potential effect of the condition on the designations future operation. Generally, there is no restriction on the type of conditions that can be imposed on a designation, unlike the restrictions placed on resource consent conditions in s108. The exception to this is that financial contribution conditions cannot be recommended or imposed on notices of requirement lodged by the Minister of Education or Minister of Defence. Placing conditions on a designation that cannot be met and require a (land use) consent can compromise the intent of the designation process is not appropriate (and are therefore unlikely to be accepted by the requiring authority).
A valid condition for a designation should:
- be for a resource management purpose
- be fairly and reasonably related to the proposed work
- not be so unreasonable that a reasonable territorial authority could not have be certain
- be enforceable
- not require third party action
- not be discretionary and/or delegate power to make or colour further recommendations
- not defeat the designation.
If the requiring authority wishes to undertake works that are within the scope of a designation, but are in conflict with a condition, it can seek to remove or modify the condition by lodging a notice of requirement to alter the designation. This situation should be avoided if the condition are in accordance with the purpose of the designation.
If a territorial authority recommends that conditions be imposed or modifications made to a rolled-over designation or a new requirement, it should set out full reasons in the recommendation. The recommendation should be clear and transparent. This is important to reduce the risk of the requiring authority rejecting the recommendation, and any subsequent appeals by the territorial authority.
When proposing to recommend conditions on the notice of requirement, it is useful to discuss these with the requiring authority before the hearing (if the notice of requirement is notified). Many conditions can be mutually acceptable in the interests of providing clarity or certainty for the territorial authority, the public and requiring authority.
Conditions may need to be revised to take into account matters raised during the hearing. The hearings panel may add additional conditions or depart from the recommended conditions in the officer’s report or those offered by the requiring authority.
In some cases, designations may have no conditions or it may not be appropriate to impose conditions. Instead, s176A provides for an outline plan to be provided at the construction stage, when additional information is available. However, it must be understood that territorial authorities cannot impose conditions on an outline plan. A territorial authority can only request changes to the outline plan. Thus, it is normally more appropriate to attach conditions to a designation to provide a framework for preparing and considering an outline plan of works.