The receipt of an application is the first important step in the resource consent process, which starts the statutory 'clock' ticking. Section 88 and Schedule 4 of the Resource Management Act 1991 (RMA) state what information an application and supporting Assessment of Environmental Effects (AEE) must contain to be considered complete and therefore acceptable to be processed. The RMA now includes more comprehensive information requirements in Schedule 4 and 10 working day timeframe to assess the application to determine whether it is complete or return it as incomplete. These new requirements reflect the importance of councils only accepting complete applications to avoid delays in the long run.
- Pre-acceptance checks
- Incomplete applications
- Receiving the application
- Advising the applicant of formal receipt and the process from this point
Before an application can be formally 'received' it needs to be checked to ensure it is complete. Checking the applications at the outset will help identify and clarify early on in the process if any necessary information is lacking and help to avoid delays once the application is formally received.
The initial check of an application should ensure it is in the prescribed form and includes an adequate Assessment of Environment Effects (AEE) in accordance with Schedule 4 of the RMA and all information required by regulations (including national environmental standards).
The completeness check needs to be thorough. However, the check should not examine the accuracy of the information, or be an assessment under ss95 or 104 of the RMA. The check is for completeness in terms of the requirements for an application specified in s88(2) of the RMA.
As lodging the application starts the statutory clock ticking, it is critical for councils to only receive applications that are complete and contain all the information that the council requires in order to make a decision. This is particularly important as:
- the 2013 amendments have removed the ability for consent authorities to stop the statutory clock for section 92 requests following submissions on notified applications. While any number of section 92 requests are still able to be made, the authority may only stop the clock for the first section 92 request and only if it is made prior to notification decision being issued
- time frames can only be extended by section 37A if special circumstances apply or if the applicant agrees to the extension
- councils must give a discount on resource consent charges where the consent is not processed within statutory time frames in accordance with the Resource Management (Discount on Administrative Charges) Regulations 2010.
It is therefore important to undertake the pre-acceptance check of the detail in the application against the information requirements in the plan, regulations (including national environmental standards), section 88 and Schedule 4. The check should include a review of the AEE to ensure the detail provided corresponds with the scale and significance of the anticipated environmental effects from the proposed activity, that it provides all the information required for AEE’s in Schedule 4 and that it also meets the particular requirements of a councils plan(s).
It may be helpful to have a checklist that staff can use that outlines all the information that may be required for an application to be considered to be complete and therefore to be accepted by the council. For over-the-counter applications it can be helpful to go through the checklist with the applicant.
It will generally be appropriate to accept an application as being complete if the following information is provided:
- fee to cover fixed charge, or deposit application fee
- completed resource consent application form (Form 9 ) including:
- the applicant's name and contact detail
- a description of the proposed activity which will general include site plan and supporting plans, elevations, cross-sections and any other plans required by council
- the location of the site, including the address and legal description with certificate of title where relevant
- a site description which should assess the natural and physical characteristics of the site and surrounding area
- the site owner/occupier's name and contact details (if different from the applicant details)
- description of any other activities that are part of the proposal, including any permitted activities or activities addressed by other authorities or under other legislation
- details of any other resource consents required and whether they have been applied for
- an AEE in such detail that corresponds to the scale and significance of the effects from the proposed activity and which addresses the matters outlined in clauses 6 and 7 Schedule 4
- an assessment against Part 2 matters
- an assessment against any relevant provisions of a document referred to in section 104(1)(b), which includes NES, other regulations, NPS, NZCPS, RPS and district and regional plans
- date and signature of the applicant or whoever is acting on the applicant's behalf.
There are also specific information requirements for certain types of applications that need to be addressed as follows:
- if the application involves permitted activities, a description of those activities to demonstrate they comply with the relevant requirements and conditions
- if the application is an existing resource consent , an assessment of the value of the investment of the existing consent holder
- if the proposal falls within an area covered by a planning document prepared by a customary marine title group under section 85 of the Marine and Coastal Area (Takutai Moana) Act 2011, an assessment of the activity against the document must be provided
- for subdivision proposals, plans showing: the position of all new and existing boundaries; the area of all new and existing allotments; any new or existing reserves including esplanade strips/reserves; any areas of any part of the bed of any lake or river to be vested in a territorial authority; any land within the coastal marine areas; any land to be set aside as new roads and the existing and proposed services on site such as water and stormwater
- for reclamation proposals, plans showing: the area and location of land proposed to be reclaimed; the position of all new boundaries; the portion of area (if any) to be set aside as an esplanade reserve or strip.
The applicant, not the council officer, is responsible for providing complete, accurate and appropriate information with an application.
Section 88(3) of the RMA states that, if an application does not include the information required by Schedule 4 or the information required by regulations, a council may determine that the application is incomplete. This determination must be made within ten working days of the lodgement of the application. If it is considered that an application is incomplete, the application must be be immediately returned to the applicant with written reasons for the decision. This reflects the fact that applications should be fit for purpose at lodgment and incomplete applications should not be accepted under any circumstances.
Under s357(3) of the RMA the applicant can object to a determination made under s88(3) that an application is incomplete. Therefore it is important to use practical judgment to determine whether the information supplied is complete and to explain that judgment in writing to the applicant.
It is important to remember that accepting incomplete applications does not promote efficient consenting, as costs and delays are incurred later on due to extensive additional information requests. This is not in the consent authority’s best interests, as applications are on their books for longer and require more resources to be processed through to completion. It is also not in the applicants best interests to accept inadequate applications as by doing so, consent authorities send a signal to applicants that their applications are ‘in-train’, even though further (and perhaps significant) additional information is needed before the application can proceed. This can be a source of frustration for applicants, emphasised by a perception that the process is fully in the consent authority’s hands at that point and any delays are due to the consent authority’s actions.
If there is a minor information deficiency only, it is good practice to contact the applicant and provide an opportunity for providing the missing information as soon as possible. This can avoid the administrative burden and time delay involved in returning the application.
Ways to ensure that adequate information is provided in the application include:
- clearly specifying information requirements in the relevant plan
- having a checklist or other guidance available for applicants and ensuring that any checklists have been completed by the applicant
- providing different forms for different consent types (eg, subdivision, stormwater discharge) so that the specific information required for that type of consent is known to the applicant
- using support structures such as internal guidelines, group discussions, meetings and independent auditing to ensure a consistent approach to checking for completeness
- arranging a pre-lodgment or pre-application meeting with the applicant to assist both the planner and applicant's understanding of the application and information requirements
- ensuring the applicant understands the pre-acceptance check does not assess the merit of the application but ensures the required information is provided and the AEE is adequate
- giving the pre-acceptance check an appropriate amount of resourcing and priority in the resource consent process as the pre-acceptance check is often likely to save time later on once the application is received
- providing a written statement of what is missing so the pre-application check does not have to be repeated when the application is re-lodged.
In some instances an applicant may lodge more than one resource consent application concurrently in a 'bundle '. If one or more of the applications is incomplete this may present an issue for council about how to treat the other applications that are complete.
Once the application has been lodged, checked and determined to contain adequate information, it is formally 'received'. The first statutory working day for an application should be the first full day after the application is lodged. For example, if a consent application is lodged at any time after 9.00am on a Monday, the first statutory day will be the Tuesday.
If the application is deemed incomplete, then it should be returned to the applicant within ten working days of lodgement with written reasons for the rejection. Should the application be lodged again with the additional information then it is treated as a new application.
The RMA allows ten working days to check an application for completeness and adequacy. However, it is best practice to check the application as soon as practicable and ideally within one full working day of it arriving at the council office because the time taken to check the application is fully included in the total working days allowed to determine the application. It may not be possible for more complex and detailed applications to be checked in one working day but it should be sufficient with respect to most minor applications.
It is good practice to advise the applicant the consent application has been formally received and that processing has commenced as soon as possible and no later than ten working days after lodgment. This should be in writing and include the date on which the application was formally received. Note that the statutory clock begins ticking from the first full day after the information enters the local authority building. This may not be the day it is received by the councils consent department.
The letter could also inform the applicant of the process from this point, in particular stating the difference in processing times between an application that is publicly notified, limited notified and non-notified. This letter could also advise the applicant that:
- further information may be required and that the processing clock will stop for the first request (if it is made prior to the notification decision)
- council may decide to commission a report on any matter relating to an activity which the council considers may have a significant adverse environmental effect
- if a further information request or request to commission a report is ignored or refused then the application may be publically notified
- when additional fees may be charged and how this will be calculated
- in the event of the application not being processed within statutory time frames, what discount on administrative charges will be given
- if the application is notified, a request for the application to be directly referred to the Environment Court can be made from the date the application is received up to five working days after submissions close. The process and time frames for the council decision on such a request should also be outlined.
Finally, it is helpful to give the applicant a council contact name and telephone number should there be any questions. Where possible, the contact details provided should be of the council officer processing the application.