After receiving all the necessary information, the council has 30 working days to decide whether to adopt or accept the request in whole or in part, convert the request to a resource consent, or reject the request.
There are two situations where the Council does not have as much choice in how it deals with a request. One is where the request for a private plan change relates to aquaculture, in this case the council may not adopt the request (s165ZS). The other is when the a private plan change is requested that includes a customary marine title area in respect of which a planning document has been lodged, in this case the council can only either reject or adopt the request (s93(12)).
At this stage, the council must decide how the request will be dealt with. The decision can be made to process it as a resource consent, or to accept or reject all or part of the request, and if proceeding, determine whether it will continue as a private plan change or adopt it as a council plan change.
1. Accept request
Council has the option of accepting the request in whole or in part and proceeding to notify the request or part of the request.
If the council accepts a private plan change, it agrees that the private plan change can proceed to notification. It remains a private plan change with council administering the legal process and the costs generally borne by the applicant. Once all the submissions and further submissions have been received the council hears the matter and issues a decision.
As a private plan change can only be made to an operative plan, it will not have effect until the plan is operative.
2. Adopt request
If the council adopts a private plan change, it continues through the process as if it was a council initiated plan change. This implies that the council generally supports the change proposal and it will bear the cost of managing the plan change from the date that it adopts it. If the council adopts the plan change, it is notified, heard and decided in the same way as a plan change.
The request must be notified within four months of the local authority adopting the request.
Rules in proposed plans do not have legal effect until after decisions have been made on submission (s86B). The exception to this, where rules have legal effect as soon as the proposed plan is notified, is when:
- an Environment Court order allows a rule in a plan to have legal effect on a different date
- the local authority resolves that a plan rule will have no legal effect until it becomes operative
- the rule protects or relates to water, air, soil (or soil conservation purposes); protects areas of significant indigenous vegetation or significant habitats of indigenous fauna; protects historic heritage or relates to aquaculture activities.
Adopting the plan change proposal:
- gives the council greater control over what is notified
- recognises the extensive work already undertaken by the applicant
- allows the council to work with the applicant to achieve the best outcome
- implies that the council generally supports the proposal
- implies the council will bear the cost of managing the plan change from the date that it adopts it.
Adopting the request can have both advantages and disadvantages associated with it. For example, an advantage is that people may be able to get the council to adopt the change and thereby become responsible for the processing costs. One disadvantage is that if the council adopts the change it then gains complete control of the process, and it is possible that the council could modify or withdraw the request at a later stage without the original applicant having any say in the matter.
Table illustrating differences between adopting and accepting the request
|Adopting the Request||Accepting the Request|
The council 'adopts ' the plan change, in whole or in part, as if plan made by local authority
The council accepts the plan change, in whole or in part, as a private plan change
The council bears the costs, although some agreement about cost-sharing may occur
The applicant bears the costs, although there may be some agreement (or council policy) about cost sharing where there is a public benefit/interest
The change is publicly notified, and the procedures set out in Part I of the First Schedule of the RMA are followed
The change is publicly notified, and the procedures set out in Part II of the First Schedule of the RMA are followed
the council is not required to:
send the applicant a copy of its final decision.
The council is required to:
send the applicant a copy of the final decision.
3. Convert Request to a resource Consent
This means that the application goes through the usual resource consent procedures of notification, submissions, hearing, decision, and appeal.
4. Reject request
This decision means that the application does not go ahead in any form. This decision can be appealed to the Environment Court. Furthermore, if the council rejects the notification of the plan change request the applicant could separately make an application for a resource consent. The applicant can also appeal the council's decision if the council converts or rejects the request, or adopts or accepts only a part of the change.
Councils can reject a request for a private plan change, in whole or in part, if:
- the request is frivolous or vexatious
- the council or the Environment Court has dealt with the substance of the change within the last two years
- the change is not in accordance with sound resource management practice, or would make the plan inconsistent with Part 5 of the RMA
- services can't be provided in a sustainable manner
- the plan to which the change is being made has been operative for less than two years.
Case law illustrates that a private plan change request can also be rejected if services cannot be provided at a rate that the community can physically and economically cope with.
5. Withdrawal of request
The applicant can withdraw the request any time before the council makes its final decision. If there is a withdrawal, this must be publicly notified and the reasons for the withdrawal sent out.