Altering an existing designation
A requiring authority can serve a notice of requirement on a territorial authority to alter an existing designation in an operative plan. Section 181 sets out the process for altering a designation. The alteration may be to the physical boundaries of the designation, the scope/purpose of the designation, or the conditions on the designation. Refer to the flowchart for the steps to alter an existing designation.
When altering a designation, consideration must also be given to relevant national environmental standards, pursuant to s43D.
The process for altering a designation involves:
- The requiring authority, responsible for a designation, giving notice to the relevant territorial authority of its requirement to alter the designation together with the required fee and information containedForm 18. It is important to note that some designations may extend over different territorial authority jurisdictions and or district plans and a notice of requirement for each district plan is required.
- The territorial authority acknowledging the application and checking that the designation has not lapsed.
Generally, a notice of requirement altering a designation is treated in the same way as a notice of requirement served under ss168 or 168A. That is, the territorial authority is able to request further information, must make a decision on notification, and can only make recommendations to the requiring authority. However, s181(3) provides an exception to this standard process. A territorial authority may, at any time, alter a designation in its district plan or a requirement in a proposed plan if:
- The alteration:
- involves no more than a minor change to the effects on the environment associated with the use or proposed use of land or any water concerned; or
- involves only a minor change or adjustment to the boundaries of the designation or requirement; and
- Written notice of the proposed alteration has been given to every owner or occupier of the land directly affected and they agree with the alteration (in decisions under s181 the Court has relied on a definition of ‘directly affected’ as an appreciable effect that is more than minimal, and is one that is felt by the person in particular not the public in general); and
- The territorial authority and the requiring authority agree with the alteration.
If any of the above requirements are not met, then the standard process for new designations must be followed.
As with new notices of requirement, once the designation has been altered, the district plan or proposed district plan must be amended to reflect the changes.
Section 180 provides for a requiring authority to transfer the rights and responsibilities for designations to another requiring authority.
Where the financial responsibility for a project or work or network utility operation has transferred from one requiring authority to another, the responsibility for any designations is also transferred. This is a straight forward process and involves the requiring authority that is transferring responsibility for the designation to advise the Minister for the Environment and the relevant territorial authority of the transfer. This transfer of responsibility includes financial responsibility.
The territorial authority must then update the district plan and any proposed plans, without using the Schedule 1 process.
If the network utility operator or organisation is not a requiring authority, they must become one under s167 before the transfer of the designation can occur.
Removal of designations
Section 182 provides for a requiring authority, including a territorial authority as a requiring authority, to initiate the removal of a designation from a district plan.
If a requiring authority no longer wants the designation or part of the designation, it must give notice to the territorial authority using Form 23 of the Resource Management Forms Fees and Procedure Regulations 2003 and notify:
- anyone the requiring authority thinks is likely to be affected by the removal of the designation
- anyone the requiring authority knows is the owner or occupier of land the designation relates to.
The designation is then removed from the district plan without using the Schedule 1 process.
Where a territorial authority considers that the effect of the removal of part of a designation on the remaining part of the designation is more than minor, it may, within 20 workings days of receiving notice, decline to remove part of the designation.
A requiring authority can object under s357 of the RMA to a territorial authority’s decision to decline the removal of part of a designation. It can then appeal the territorial authority’s decision on the objection.
Sections 184 and 184A state that designations will lapse if they are not used within a reasonable timeframe. This is important because a designation imposes restrictions on any private owners or occupiers of that property while it is in place.
‘Lapse’ is not defined in the RMA so it has its ordinary meaning in a legal context specific to sections 184 and 184A of the RMA: termination of a right or privilege through disuse.
A lapsed designation is not capable of revival. However, a requiring authority can seek an extension of the time to give effect to a designation in accordance with s184, or it may lodge a new notice of requirement.
A designation lapses five years after the date it is included in the district plan, unless:
- it is ‘given effect to before the end of that period’, or
- the territorial authority determines on an application made within three months of the end of the five-year period, that ‘substantial progress or effort’ has been made, and is continuing to be made toward giving effect to the designation, or
- the designation specifies a different lapse period, at the time it was incorporated into the plan.
If any one of the above provisions is met and lapsing of the designation is avoided, the territorial authority must fix a longer period for the requiring authority to give effect to the designation. The ‘continuing substantial progress or effort’ test is similar to that for resource consents under s125 of the RMA, and does not require completion or near completion of the works. This does not necessarily always mean that physical works must be underway.
The five-year period is calculated from the date the designation is included in the plan. The requiring authority can apply for more than one extension of the five-year period.
For territorial authority designations, the territorial authority itself must resolve that it is making and is continuing to make substantial progress or effort towards giving effect to the designation.
Once given effect to, a designation remains until the requiring authority removes or alters the designation. A designation can also be rolled over into a new district plan. If an existing designation is not ‘rolled over’ into a new district plan it continues to have effect until the proposed district plan is made operative.