What is a designation?
A designation is a planning technique used by Ministers of the Crown, local authorities and network utility operators approved as requiring authorities under s167 of the RMA. Only requiring authorities can seek designations for land.
Historically, designations enabled central and local government to get planning authorisation for public works and protected land for future public works. Requiring authorities can only make a designation where they are financially responsible for the project, work, or operation on the designated land.
A designation is a form of ‘spot zoning’ over a site, area or route in a district plan. The ‘spot zoning’ authorises the requiring authority’s work and activity on the site, area or route without the need for land use consent from the relevant territorial authority (i.e. s9(3) of the RMA does not apply). A designation has a similar effect to a plan change establishing a permitted activity as it:
- identifies the land affected in the district plan
- enables a requiring authority to undertake the works within the designated area without the need for a land use consent
- sets the parameters under which the activity can occur.
Designations are also similar to a comprehensive land-use resource consent as they enable a requiring authority to undertake the works within the designated area (subject to any conditions applied to it).
The designated area is still subject to any restrictions on land use under s9 (excluding subsection (3)) and in relation to air, water, and the coastal marine area as contained in ss 12 – 15. Relevant regional council resource consents may also be needed in relation to a project or work.
A designation restricts anyone other than the requiring authority from carrying out work on the designated land that will prevent or hinder the project or work to which the designation relates, without first obtaining the requiring authority’s permission (refer s176(b)).
Designations have a number of advantages, including providing for activities that might otherwise be difficult to comprehensively provide for in a district plan For example, designations are often used to provide for networks such as land transport, telecommunications and electricity transmission.
When there is more than one designation on a site, the requiring authority responsible for the later designation must first obtain the written consent of the requiring authority responsible for the earlier designation before undertaking a project or work. However, the requiring authority responsible for the earlier designation may only withhold consent if the proposed activity would prevent or hinder the project of work to which the earlier designation relates.
Designations apply to district plans and proposed district plans only. The ‘underlying zone’ of the district plan remains over the site and applies to any other activities that are for a purpose different to the designation purpose (or activities undertaken by a party other than the requiring authority) under s176. Therefore, any activity or works outside the scope of a designation will require resource consent unless the activity or works are a permitted activity within the underlying zone.
Notices of requirement (notices for new designations) can be processed in two main ways, either by themselves in a way similar to a comprehensive resource consent or as part of a proposed district plan. These processes vary different timeframes and requirements. Guidance on both of these processes is provided in this note.
Existing use rights may apply when a designation is removed. Section 10(1)(b) of the RMA recognises existing use rights when either a designation is removed, or a requiring authority loses requiring authority status, or where a designation lapses. These rights apply only if the effects of the existing use are the same or similar in character, intensity and scale as before the designation was removed.
The scope of a designation
The scope of a designation defines the nature of the activity and the works that can be established on the designated site. The scope of a designation is generally what an ordinary reasonable member of the public, examining the scheme, would have taken from the designation. The form and scope of the works can also be controlled through any conditions imposed on the designation.
Operative district plans record a designation in the relevant planning maps, and in a full description of the designated purpose. This description, often called the ‘designation notation’ or the ‘designated purpose’, defines the scope of the designation, and what activities the requiring authority may undertake in accordance with s176.
The scope of a designation is a critical determinant of the nature of the activity and associated works that can be established on a designated site. The scope of a designation may be restricted or controlled by detailed descriptions and conditions, including mitigation measures.
Do existing designations that are not ‘rolled over’ still have effect?
There is a question around whether existing designations have legal effect if they are not ‘rolled over’ or included in any proposed district plan.
If a designation has not lapsed, it continues to have effect until the proposed district plan (or at least that part of it) is made operative. Designations are ‘deemed’ rules and s86B provides for rules in district plans to only have legal effect once a decision on submissions in relation to the rule is made and publically notified under clause 10(4) of Schedule 1 (note there are also specified instances in s86B where some rules can have effect either immediately or from a different date).
Financial responsibility for a designation
It is well-established through case law that land should not be designated for a proposed public work unless there is a requiring authority prepared to take financial responsibility for it.
In addition, in terms of financial responsibility, this is not just limited to the purchase of the land but also extends to the construction of the proposed work.
Transitional provisions and ‘deemed’ requiring authorities
Section 420 of the RMA is of fundamental importance for designations included in transitional district plans. It is a ‘savings provision’, meaning that it temporarily maintains certain rights or responsibilities from the Town and Country Planning Act 1977. Section 420 is still relevant because there are still a number of first generation plans that are not yet operative. The key subsections are (2) and (5).
Subsection (2) means that designations that were included in a district scheme at the time of the commencement of the RMA automatically continue as designations in transitional district plans, and “the person responsible for the designation shall be deemed to be a requiring authority for that designation;...”. This means that persons or organisations that were responsible for a designation, but do not fit the s166 criteria to become a requiring authority, are deemed to be requiring authorities for the life of the designations(s) in question.
For example, the multitude of ‘port’ designations included in transitional district plans continue to have effect, and the ‘harbour boards’ or their successors (port companies) are requiring authorities, but only for the purpose of those designations.
Subsection (5) defines when the deemed designation and deemed requiring authority status end. It provides that the deemed designation remains in force until the plan is made operative, and then lapses unless the deemed requiring authority has been approved as a requiring authority under s167.
Historical use of designations
Historically, designations served two purposes. Firstly, they enabled central and local government to get planning authorisation for public works.
For central government, these works included projects in the fields of:
- education (schools)
- defence (army bases, airfields and ammunition depots)
- law and order and emergency services (prisons, police and fire stations, court houses and periodic detention centres)
- energy (power stations, dams and high voltage power lines)
- transportation (state highways, rail corridors and airports)
- communications (post offices, telephone exchanges and radio transmitters/receivers).
For local government, works were usually for utility services, such as water services and sewerage schemes. However, local authorities also often designated their own roads and other assets, including gravel quarries, cemeteries and domains.
Secondly, designations protected land for a given future activity. It was quite common to see proposed designations for activities such as ‘proposed intermediate school’, ‘proposed motorway’, and ‘proposed telephone exchange’. The proposed designations prevented any incompatible land use on the land until the work was ready to start, and often provided a basis for acquiring land. Property acquisition could be compulsorily undertaken when the work was deemed to be an ‘essential work’.
Most of these works were proposed during the 1970s, at the time of district scheme reviews. Some of the proposed designations were fulfilled, but many were either scaled back in size (such as motorways reduced to roads) or were eventually withdrawn completely (such as proposed schools that were never built).
Historically, proposed designations often served little purpose beyond land acquisition and putting the public on notice of the future use of the land. There are few examples of designations for ‘proposed works’ under the RMA.
The move to state-owned corporations and eventually privatisation in the 1980s and 1990s resulted in fewer proposed designations. Under the RMA, the use of proposed designations has been discontinued by the lapsing requirements of the Act which means that most works are established on designated sites within defined timeframes.