To begin the process of designating land, a requiring authority must serve a notice of requirement on the relevant territorial authority (s168 of the RMA) or lodge it with the Environmental Protection Authority (EPA) (s145(3)). A notice of requirement is a proposal for a designation.
The notice of requirement has an interim effect, in that it protects the land for the designated purpose until the designation is confirmed and included in an operative district plan (s178). If the designation is confirmed it overrides the provisions of the district plan so the project or the works may be implemented by the requiring authority in accordance with that designation and any conditions attached to it. However, the underlying plan provisions continue to apply if the land is used for a purpose other than the designated purpose.
When processing a notice of requirement Part 8 of the RMA requires the territorial authority to consider the requirement and any submissions received (if the requirement was notified), and then make a recommendation to the requiring authority. The territorial authority is only able to make a recommendation to the requiring authority and the requiring authority has the final decision on the matter.
An alternative process is available under Part 6AA of the RMA for notices of requirement that are for proposals of national significance. Sections 198A – 198M of the RMA also provide for the direct referral of notices of requirement to the Environment Court for a decision. The direct referral provisions under the RMA allow for requiring authorities to request that notified notices of requirement be directly referred to the Environment Court for a decision, instead of a recommendation by a territorial authority and a decision by a requiring authority.
The designation provides for the long-term ‘approval’ of the work. Because details of the work may not be known at the time of lodging the notice of requirement, s176A provides for further detail or subsequent changes and updates to the work through an outline plan. An outline plan is required to be submitted to the territorial authority, showing details of the work or project to be constructed on the designated land.
As for the notice of requirement process, the territorial authority only has a recommendation role for outline plans. The territorial authority is only able to request changes of the requiring authority and cannot turn down an outline plan.
A notice of requirement and an outline plan describing the works proposed can be served/submitted at the same time. This approach can be helpful to allow the territorial authority to understand the designation, and can speed up the overall process allowing works to begin sooner. Alternatively, the requirement for an outline plan can be waived by the territorial authority if sufficient information was submitted with the notice of requirement.
What is a requiring authority?
‘Requiring authority’ is defined in s166 of the RMA. It includes a Minister of the Crown, a local authority, or a network utility operator approved as a requiring authority under s167.
A definition of network utility operator is included in s166. Network utility operators are defined by what activities they undertake, or in some cases, they propose to undertake. They include organisations that distribute gas, petroleum, biofuel, geothermal energy, telecommunications, radiocommunications, electricity, water, wastewater, roads, railway lines, and airport authorities (including approach surfaces). Specific procedural requirements are set out under s167 for a network utility operator to become a requiring authority.
The requiring authority may do anything that is in accordance with the designation, and the usual provisions of the district plan do not apply to activities that fall within the scope of the designation on the designated land. In certain circumstances, the Minister can revoke requiring authority status (s167(5)).
Becoming a requiring authority
Section 167 of the RMA sets out the procedure for a network utility operator to become a requiring authority. Approval of a requiring authority is at the discretion of the Minister for the Environment, and can include the terms and conditions the Minister considers appropriate (s167(3)).
To become a requiring authority, the network utility operator applies to the Minister for the Environment, using Form 17 or similar.
The Minister may make further inquiries and request any further information (s167(2)). Approval is by way of a notice in the Gazette.
Subsection (4) includes two fundamental tests that the Minister for the Environment must be satisfied with to issue a notice in the Gazette. The tests are that:
- The approval of the applicant as a requiring authority is appropriate for the purposes of carrying on the project, work, or network utility operation; and
- The applicant is likely to satisfactorily carry out all the responsibilities (including financial responsibilities) of a requiring authority under this Act and will give proper regard to the interests of those affected and to the interests of the environment.
It is the network utility operator’s responsibility to satisfy the Minister that requiring authority status is ‘appropriate’ and that it is likely to satisfactorily carry out all the responsibilities.
The Ministry for the Environment maintains a list of all approved requiring authorities on their website.
Revoking requiring authority status
The Minister for the Environment can revoke the requiring authority status of any network utility operator under s167(6). Revocation can occur when a requiring authority (s167(5)):
- is unlikely to undertake or complete a project, work or network utility operation, or
- is unlikely to satisfactorily carry out any responsibility as a requiring authority under the Act, or
- is no longer a network utility operator.
This revocation occurs by notice in the Gazette. All functions, powers and duties of the former requiring authority under the RMA in relation to any designation or any notice of requirement are deemed to be transferred to the Minister for the Environment (under s180).
Section 167(6) does not expressly state that the designation is revoked along with the requiring authority status. It is unlikely that any designation would be automatically revoked by the Minister.
The Ministry for the Environment maintains a list of all revoked requiring authorities on their website.
Effect of a notice of requirement
Under s178, a notice of requirement has an interim effect of protecting the land for the purposes of the designation, the public work or project, from the time that a requiring authority gives notice to a territorial authority under s168. A notice of requirement from a territorial authority has interim effect on the date a territorial authority resolves to publicly notify its own requirement under s168A. However, the work or project cannot be implemented until after the designation is confirmed and included in an operative plan.
The interim effect of a requirement ends on the earliest of the following days:
- the day on which the requirement is withdrawn by the requiring authority
- the day on which the requirement is cancelled by the Environment Court
- the day on which the designation is included in the district plan.
During this interim period, the land is protected from other activities that may hinder or prevent the works intended under the designation, unless consent for the works is obtained from the requiring authority. It is an offence to undertake work within the proposed designation that would prevent or hinder the use of the land for the designated purpose without the written approval of the requiring authority, unless the person did not know or could not have been reasonably expected to have known of the existence of the notice of requirement.
It is good practice for the requiring authority to liaise with affected land owners at an early stage which will ensure that they are well aware of the notice of requirement.