Who is notified?
When an application is publicly or limited notified under ss95A, 95B or 95C of the RMA, the council must notify prescribed persons of the application. The tests and procedures for notified and limited notified applications applies to the following types of applications:
- resource consent
- change or cancellation of condition(s) of resource consent
- review of a resource consent
- a notice of requirement for a designation or heritage order
- a notice of requirement to alter a designation or heritage order
- an application or proposal to vary or cancel an instrument creating an esplanade strip
- a matter of creating an esplanade strip by side agreement
- transfer of certain water permits.
The prescribed persons are noted in Regulation 10 of the Resource Management (Forms, Fees, and Procedure) Regulations 2003. This regulation states that the persons to be served with notice include:
- every person the council thinks may be adversely affected by granting the application or by the review, having regard to any relevant statutory acknowledgement
- owners and occupiers of any land to which the application or review relates
- the regional council or territorial authority for the region or district to which the application or review relates
- any other iwi authority, local authority, and other person or body considered appropriate
- the Minister of Conservation, if the application or review relates to an activity in a coastal marine area or on land adjoining the coastal marine area
- the Minister of Fisheries, the Minister of Conservation, and the relevant Fish and Game Council, if an application relates to fish farming (as defined in the Fisheries Act 1996) other than in the coastal marine area
- the Heritage New Zealand, if the application or review relates to land which is subject to a heritage order or the requirement for one, or is identified as having heritage value in a plan or proposed plan; or affects any historic place, historic area, wāhi tapu, or wāhi tapu area registered under the Heritage New Zealand Pouhere Taonga Act 2014
- a protected customary rights group that may be adversely affected by the grant of a resource consent or the review of consent conditions
- a customary marine title group that may be adversely affected by the grant of a resource consent for an accommodated activity
- Transpower NZ if the application or review may affect the national grid.
For limited notified applications processed under s95B, the council need only serve notice on those persons identified as being adversely affected under s95E. For example, for a garage proposed within the required setback along one side of a property boundary, this may involve only serving notice on the adjoining landowner / occupier where they have not provided their written approval and only that landowner/ occupier would have the ability to lodge a submission.
Those persons who are considered to be adversely affected but have provided their written approval to the application do not need to be served with notice of the application and cannot lodge a submission on the application.
What to send to parties that are notified directly
When notifying any persons adversely affected by an application, the notice must contain sufficient information to enable them to understand the general nature of the application and whether it will affect them, without requiring any reference to other information.
There are no prescribed forms for service of notice. Generally, the higher the standard of the information supplied in the notice, the less time council officers will need to spend answering questions about the application and forwarding information to people.
If the application is relatively short then it may be appropriate to send a copy of the entire application to those people who are required to be notified. For larger applications you may wish to send only a copy of the application form and a site location plan indicating what is proposed and exactly where. The notice should also outline where the application is available for public viewing if it is not being provided to affected parties and it is generally good practice to also make the documentation available on-line. Always ensure you have all the necessary information to understand and assess the application before it is notified.
The public notice
A fully notified resource consent application must be publicly notified. This can be done by publishing a notice in a newspaper, which circulates within the entire area likely to be affected by the proposal to which the notice relates. In addition to the notice in the newspaper, the council may also place the public notice on an internet site which has free public access, and this is generally the relevant council website. Refer to s2 of the RMA for the definition of public notice.
The public notice must be in the prescribed form - Form 12 of the Resource Management (Forms, Fees, and Procedure) Regulations 2003- and include:
- the name of the council who has received the application
- the name of the applicant
- a description of the type of resource consent applied for
- a description of the activity, including the location
- if for a change or cancellation of a resource consent condition: the type and location of the resource consent, the relevant condition and the proposed change
- if for an application for a transfer of a water permit: the site for which the water permit has been granted
- if it is an application to vary or cancel an instrument creating an esplanade strip, a description of the strip and its location and any proposed variation
- a statement that the application includes an assessment of environmental effects (AEE)
- information on where the application and accompanying information may be viewed
- the name of the person to contact with any queries and the contact phone number
- a statement that submissions can be made in writing on a prescribed submission form by any person and sent to the council, from where copies of the appropriate submission from can be obtained (refer to Form 13 or Form 16B if the submission is regarding an application lodged with the Environmental Protection Authority (EPA))
- state the closing date for the receipt of submissions at the council (this must be the 20th working day after the date of the public notice)
- state the address for service for the council and the applicant
- state that a copy of every submission must be served on the applicant as soon as reasonably practicable after serving the submission on the council.
There are a variety of ways to present this information in a public notice. However, it is important to keep in mind the audience is the general public who may not be familiar with the jargon and technicalities of the RMA.
To help the public interpret and understand the public notice, it is recommended the notice include:
- a brief explanation about why some applications are publicly notified. For example, "because of their possible environmental effects, many activities need resource consent from council..."
- a statement about where submission forms can be obtained from (ie, council offices and/or council website)
- information from the council website to assist the public in making submissions (eg, information from the plan) - the website address could be included at the bottom of the notice
- plain and simple text and wording - make it descriptive so people can easily form a visual picture of what is proposed; avoid the overuse of technical jargon and 'legal speak '
- reference the RMA only where necessary and avoid quoting large sections of it
- use of an easily read font: avoid extremely small and hard to read fonts
- the address of the website in bold font.
Regulation 10A of the Resource Management (Forms, Fees and Procedure) Regulations 2003 provides the council with the discretion to require a notice to be affixed in a conspicuous place within the site or adjacent to the site to which the application relates. It is good practice to erect a sign displaying the public notice, especially if the proposed activity takes place in an area with widespread effects or will affect people who are not directly notified.
Informing the applicant their application has been notified
If an application is to be notified on either a public or limited notified basis, the application must be notified within 20 working days of the date the application is first lodged (s95).
It is good practice to advise the applicant in advance of the intention to notify the application (unless the applicant requests public notification or the application was lodged on a notified basis). This is important to provide them with an opportunity to modify the proposal or withdraw the application to avoid notification should they wish. Any additional processing fees required should be obtained at this time.
Advising the applicant about the consequences of not providing further information or refusing to provide further information under s95C is also important. Section 95C requires the council to publicly notify a resource consent application if the applicant does not provide further information under ss92(1) and 92(2)(b) before the deadline or refuses to provide the information.
If notification is to proceed, the applicant should be informed of this in writing. The following should be communicated to the applicant:
- the reasons why the application is to be notified (include the notification report or documentation of the decision and reasons)
- the people to be notified and their addresses (if limited notified)
- a copy of the advertisement (if publicly notified)
- the date the application will be notified
- the closing date for submissions
- where submissions will be received
- advice that the applicant will be sent a copy of each submission by each submitter
- the process the applicant can expect from this point onwards
- the timeframes that must be met (for example the latest date that a decision should be issued by in order to meet statutory timeframes)
- the ability of the applicant to place their application on hold under section 91A once notification has commenced
- the ability for the applicant to request direct referral of the application to the Environment Court if publicly notified
- the ability to request a hearing by one or more independent commissioners (s100A)
- advice regarding any additional fees payable for the application to proceed on a notified basis.
Any pamphlets the council has on notification should be included with the letter, to help the applicant better understand the process.
The applicant can place the application on hold (sections 91A-91C)
Fully notified and limited notified applications can be placed on hold by the applicant any time between notification and the close of the hearing. After a total of 130 working days on hold (including any on periods on hold under sections 91, 92(1) or 92(2)), the consent authority must return the application or continue processing.
The council must suspend the application when a request is received from an applicant under section 91A. If a hearing is held, such requests can be made between the date of the decision to notify and the close of the hearing. If a hearing is not held, such requests can be made between the date of the decision to notify and the final decision being issued.
The applicant must make the request by written or electronic notice. In response, the council must give written or electronic notice to the applicant specifying the date on which the suspension started. It is good practice to also state the date at which the on hold period will expire in this notice, as is sending a reminder letter or speaking to the applicant towards the end of the on hold period to remind them that the suspension period is about to expire.
The council must resume processing of a suspended application at the applicant’s request.
Alternatively, if the application remains on hold for 130 working days in total (including all other periods when the application was on hold), the council must either return the application to the applicant, or continue to process it. The other on-hold periods include (as per sections 88C–F) deferrals of timeframes because sections 91, 92(1) or 92(2) have been applied. The intent of this deadline is to avoid situations where applications are suspended for long period of time as this can create uncertainty for affected communities and prevent others seeking access to allocatable resources.
There are no criteria in the RMA that the council must take into account when deciding whether to return the application. However, some possible considerations include:
- whether there has been any communication from the applicant during the period the application was suspended
- what is known about the reasons the application has been on hold
- whether the applicant has made progress in further developing their application
- whether the applicant is likely to provide adequate information
- whether the applicant appears interested in proceeding with the application or resolving any issues
- whether the costs of processing the application to date have been recovered
- if there are other parties involved in the process, whether negotiations with them are known to be occurring and progressing
- whether the applicant can be contacted
- the level of investment that has been made in the process to date by the applicant, submitters, the council and any other parties
- whether the application is being made to replace a resource consent that will expire. In these circumstances, consider whether sections 124 to 124C apply to the application.
A decision to return the application means that, if the applicant still wants to obtain resource consent, they will need to re-apply and their application will be treated as new.
An alternative option is for the consent authority to extend the timeframe of the on hold period using section 37.
Under 357(3A), applicants may object to an application being returned but they cannot object to the consent authority’s decision to continue processing the application.
The process for making submissions
Sections 96(1) and 96(2) of the RMA provide for any person to make a submission to a council on an application for a resource consent that is publicly notified in accordance with ss95A or 95C, unless they are a trade competitor and are submitting on trade competition grounds (as outlined in s308B).
If an application is limited notified in accordance with s95B, only those persons who were served with notice of the application may make a submission under ss96(3) and 96(4), unless they are a trade competitor and are submitting on trade competition grounds (as outlined in s308B).
A submission can be in support or in opposition to the application, or neutral in its stance.
The submission may be written or electronic and must be in the prescribed form, Form 13 (or Form 16B if the submission is regarding an application being processed by the EPA). Form 13 requires the following information:
- the name of the council the submission is lodged with
- the name and contact details of the submitter
- the application to which the submission applies
- a brief description of the type of application applied for, the proposed activity and the location of it
- the specific parts of the application to which the submission relates
- whether the submitter supports, opposes or is neutral to specific parts of the application and/or the entire application
- the reasons for making the submission
- the decision the submitter wishes the council to make, including any amendments, and the general nature of any conditions that the submitter believes should be imposed if the consent is granted
- whether the submitter wishes to speak to the submission at the hearing
- whether the submitter wishes to consider presenting a joint case with others making a similar submission
- whether the submitter requests pursuant to s100A that the hearing be heard by one or more hearings commissioners who are not members of the local authority.
- a note to submitters stating that if they request the use of hearings commissioners under s100A they may be liable to meet or contribute to the costs of the hearings commissioner or commissioners.
The closing date for making submissions must be specified in the public notice. Section 97 of the RMA prescribes that submissions will close on the 20th working day after public or limited notification of the application. This period may only be extended by using ss37 and 37A if there are special circumstances, or the applicant agrees.
Closing the limited notification period early
Under s97 councils may choose to close the submission period for limited notified applications early if all affected persons have provided the consent authority with a submission, written approval, or notice that they will not be making a submission.
If the council decides to close the submission period early, it must do so on the last day that it receives the final submission, written approval, or notice that a submission will not be made from the final affected persons.
If the submission period is closed early, the time period after which a discount is payable under the Discount Regulations remains 100 working days from lodgement. This means that by closing the submission period early and beginning the hearing sooner, the consent authority reduces the likelihood that it will be required to pay a discount if the hearing or the preparation of the decision take longer than anticipated.
Common problems with submissions
Below are common problems experienced with submissions and some suggested solutions.
Sections 37 and 37A(1) and (2) of the RMA allow a council to accept late submissions. If a council does so, it must be careful to adopt a consistent approach to ensure that applicants and submitters are not disadvantaged or advantaged in any way.
Using a set of criteria can assist in determining whether a late submission is able to be accepted or not in a consistent way. However, late submissions still need to be addressed on a case-by-case basis. An extension can be no more than twice the maximum time period specified in the RMA (eg, 40 working days in case of a submission period), unless the applicant or requiring authority requests or agrees.
Incomplete information in the submission. For example, the submitter has not provided:
It is very important that submitters understand the importance of fully completing their submission. This can be helped by developing clear, user-friendly submission forms and supporting information and guidance.
It is good practice to review submissions as they are received. Where a submission is incomplete, contact the submitter to explain why it is thought to be incomplete and invite the submitter to complete it. This is particularly important if the missing information relate to reasons, decision sought and conditions.
If the missing information is not provided, submitters need to understand that their submission may not be fully understood or may be disallowed.
Submitter has not indicated if they want to be heard or not.
It is good practice for a council officer to phone submitters and clarify whether or not they want to be heard. They need to understand that by not ticking the "I wish to be heard" box, they will not be notified of the date, time and place of any hearing (s101(3)(b)), nor will they be able to participate in a hearing.
Conversely, if submitters initially indicate they wish to be heard and then decide to forfeit this right, it is recommended the withdrawal be received in writing and that these submitters be informed of the implications as stated above.
Submission has not been served on the applicant.
It is good practice for a council officer to phone submitters and advise they are required to serve a copy of their submission on the applicant (according to s96(6)(b) of the RMA). The council may also choose to send copies to the applicant itself.
Receipt of submissions
When all submissions are received, it is good practice to:
- Acknowledge the receipt of each submission in writing. This gives submitters certainty their submission has been received.
- Provide information in the acknowledgement letter on any pre-hearing meeting to be held; a summary of other submitters' concerns could also be included
- Let the submitter know that if a hearing is to be held they can request independent commissioner(s) to hear and decide the application instead of the council (s100A). However, the submitter should be informed that they may be liable for all or part of the costs.
- Combine the notice of hearing with the acknowledgement of the submission, if a hearing date has already been set.
- State that latest date that a decision can be issued in order to meet statutory timeframes. This will be either 90 days after the close of submissions for notified applications or 60 days after the close of submissions for limited notified applications.
- Inform the submitters that the applicant has the ability to place the application on hold under s91A for up to 130 working days (or the remaining relevant time once other excluded days have been taken into consideration).
Receiving submissions electronically (such as by e-mail or through a council website) can save time by:
- Receiving and automatic date stamping submissions at any time without the need for staff on duty
- Being able to copy and paste text when summarising submissions
- Enabling submissions to be easily forwarded to the applicant electronically
- Having mandatory fields in online submission forms to ensure all boxes are filled in
- Less copying and posting of paper submission forms
- Avoiding the time for submissions to be delivered via post and submissions being lost in the mail.
Submissions lodged electronically do not require a signature.
Submissions and trade competition
Part 11A of the RMA makes it clear the RMA is not to be used by trade competitors to oppose applications on trade competition grounds. A trade competitor can only submit on an application if they are directly affected by the adverse environmental effects of the application. If a trade competitor is considered to be adversely affected by the application, their submission must only relate to the effects on them and cannot consider trade competition or the effects of trade competition.
For more information on submissions and trade competition refer to the Trade competition fact sheet on the Ministry for the Environment’s website.
Advising the applicant
A council must provide the applicant with a list of all submissions received as soon as reasonably practicable after the close of submissions (s98).
Although the RMA requires all submitters to serve a copy of their submission on the applicant, this does not always happen. Therefore the council list is important to ensure the applicant is aware of all of the submissions.
Withdrawal of submission or request to be heard
There is no specific section of the RMA that deals with the withdrawal of a submission or the request to be heard. However, for any withdrawal, it is good practice to require the submitter to do so in writing.
Where submitters choose to withdraw a submission or the right to be heard, it is also good practice to clarify their legal status relating to the application. A submitter who no longer wishes to be heard will retain the right to appeal any decision made by the council. However, if the submission is withdrawn, the submitter loses the right to appeal.