Notifying Fast-Track applications
To be eligible for the fast track process, the resource consent application must be a district land use application having a controlled activity status (s87AAC), and it must have an electronic address for service. A notification decision must be made within 10 working days after lodgement.
The new step-by-step process for determining notification;
- precludes public notification of controlled activity applications (s95A(5)(b)(i)), unless special circumstances exist, and
- precludes limited notification of controlled activity applications (s95B(6)(b)),-unless special circumstances exist.
- Note however there is mandatory limited notification in s95B Step 1 if the application affects protected customary rights groups, customary marine title groups in the case of an accommodated activity, or is on or adjacent to or may affect land subject to a statutory acknowledgement, and the person is affected under s95E. For further information relating to this, refer to the guidance note : “To Notify or Not to Notify”.
If notified, the application will automatically cease to be a fast track application and will be processed via the notification path that has been determined (ie either limited or publicly notified) and the relevant timeframes that apply to this process. The date of lodgement of the original (fast-track) consent remains the same.
For any fast track applications that the council decides to notify, the council officer needs to decide whether to request any of the information contained in s 88(2)(b). The council officer is not required to request this information but can do so if necessary under s 92(1). It should be noted however, that after a notification decision, the processing clock cannot be stopped awaiting further information requests (s 88C(1)).
Informing the applicant that their application has been notified
If an application is to be notified on either a public or limited notified basis, this must be done within 20 working days of the date the application is first lodged or 10 working days for a fast track application (s95). If the council decides that a fast track application needs to be notified, it ceases to continue to be a processed on a fast track basis.
It is good practice to advise the applicant in advance of the intention to notify the application (unless the applicant requests public notification or the application was lodged on a notified basis). This is important to provide them with an opportunity to modify the proposal or withdraw the application to avoid notification should they wish. Although there is no specific provision in the RMA to stop the processing clock while the applicant modifies their proposal prior to notification, the Council could extend the statutory timeframe for notification (or decision) under s37 (if required) if the applicant agrees to the extension or special circumstances exist.
It is also important to advise the applicant about the consequences under s95C of not providing further information or refusing to provide further information. Section 95C requires the council to publicly notify a resource consent application if the applicant does not provide further information under ss92(1) and 92(2)(b) before the deadline, or refuses to provide the information.
If notification is to proceed, the applicant should be informed of this in writing, via their electronic address of service (if provided). The following information should be communicated to the applicant:
- the reasons why the application is to be notified (include the notification report or documentation of the decision and reasons)
- the people to be notified and their addresses (if limited notified)
- a copy of the public notice and a copy of the summary (to be placed in the local newspaper)
- the date the application will be notified (the application must be notified within 20 working days of lodgement)
- the closing date for submissions (20th working day after the date of notification (or less for limited notification subject to s 97(4)))
- where submissions will be received
- advice that the applicant will be sent a copy of each submission by each submitter
- the process the applicant can expect from this point onwards
- the timeframes that must be met (for example the latest date that a decision should be issued by in order to meet statutory timeframes)
- the ability of the applicant to place their application on hold under section 91A once notification has commenced
- the ability for the applicant to request direct referral of the application to the Environment Court if publicly notified
- the ability to request a hearing by one or more independent commissioners (s100A)
- advice regarding any additional fees payable for the application to proceed on a notified basis.
Any pamphlets the council has on notification should be included with the letter, to help the applicant better understand the process.
Under s36AAB(2), if the council decides that an application is to be publicly or limited notified, the council does not have to carry out notification until any relevant fee is paid. In these circumstances the clock does not stop but the days are excluded for the purposes of calculating a discount under the Discount Regulations. Please refer to the 'Resource Management (Discount on Administrative Charges) Regulations 2010: Implementation Guidance" on the MfE website for further details.
Who is served notice on a publicly notified application?
When an application is publicly notified under section 95A, of the RMA, the council must notify prescribed persons of the application as required by Regulation 10 of the Resource Management (Forms, Fees, and Procedure) Regulations 2003. This applies to the following types of applications:
- an application for a resource consent (s88)
- an application to change or cancel condition(s) of resource consent (s127)
- a review of a consent conditions (s128)
- an application for a transfer of a water permit or a discharge permit (s136)
- a notice of requirement for a designation or heritage order (s168A and 189A)
- a notice of requirement to alter a designation or heritage order (s181 and s195A
- an application or proposal to vary or cancel an instrument creating an esplanade strip
- a matter of creating an esplanade strip by agreement (s234)
Regulation 10 of the Resource Management (Forms, Fees, and Procedure) Regulations 2003 states that the persons to be served notice include:
- every person who the consent authority decides is an affected person under section 95B of the Act in relation to the activity that is the subject of the application or review:
- every person, other than the applicant, who the consent authority knows is an owner or occupier of land to which the application or review relates:
- the regional council or territorial authority for the region or district to which the application or review relates:
- any other iwi authorities, local authorities, persons with a relevant statutory acknowledgement persons, or bodies that the consent authority considers should have notice of the application or review:
- the Minister of Conservation, if the application or review relates to an activity in a coastal marine area or on land that adjoins a coastal marine area:
- the Minister of Fisheries, the Minister of Conservation, and the relevant Fish and Game Council, if an application relates to fish farming (as defined in the Fisheries Act 1996) other than in the coastal marine area:
- Heritage New Zealand Pouhere Taonga, if the application or review:
- relates to land that is subject to a heritage order or a requirement for a heritage order or that is otherwise identified in the plan or proposed plan as having heritage value; or
- affects any historic place, historic area, wāhi tūpuna, wahi tapu, or wahi tapu area entered on the New Zealand Heritage List/Rārangi Kōrero under the Heritage New Zealand Pouhere Taonga Act 2014:
- a protected customary rights group that, in the opinion of the consent authority, may be adversely affected by the grant of a resource consent or the review of consent conditions:
- a customary marine title group that, in the opinion of the consent authority, may be adversely affected by the grant of a resource consent for an accommodated activity:
- Transpower New Zealand, if the application or review may affect the national grid.
Who is served notice on a limited notified application?
When an application is limited notified under s95B, the council need only serve notice on those persons or groups identified as being adversely affected under ss 95B(2) or (3), 95E, 95F and 95G.
A council cannot consider a person (or group) to be an affected party if they have given their written approval to an application. Accordingly those persons (or groups) are not entitled to be served with notice of the application and therefore cannot lodge a submission on the application.
What to serve on parties that are notified directly
When notifying any persons or groups adversely affected by an application, the notice must contain sufficient information to enable them to understand the general nature of the application and whether it will affect them, without requiring any reference to other information.
There are no prescribed forms for service of notice. Generally, the higher the standard of the information supplied in the notice, the less time council officers will need to spend answering questions about the application and forwarding information to people.
S 352 (service of documents) makes electronic delivery the default method of service (if the person/party has specified an electronic address as an address for service for the matter to which the document relates). If a person has not provided an electronic address or requests a non-electronic method of service, the sender may use any of the alternative methods listed in section 352(1)(b).
If the method of service is not electronic, and the application is relatively short, then it may be appropriate to send a copy of the entire application to those people who are required to be notified. For larger applications a copy of the application form and a site location plan indicating what is proposed and exactly where may be appropriate. The notice should also outline where the full application is available for public viewing if it is not being provided to affected parties.
The public notice
The public notice for a fully notified resource consent application must be published (along with any relevant information) on a freely accessible internet site (which is generally the relevant council website). In addition to this, a short summary of this notice is to be published in at least one newspaper that circulates within the entire area likely to be affected by the proposal to which the notice relates, and it must direct readers to the internet site where the full notice can be viewed.
Refer to s2AB of the RMA for the definition of public notice.
The public notice itself must be in the prescribed form - Form 12 of the Resource Management (Forms, Fees, and Procedure) Regulations 2003 - and include:
- the name of the council who has received the application
- the name of the applicant
- a description of the type of resource consent applied for
- a description of the activity, including the location
- if for a change or cancellation of a resource consent condition: the type and location of the resource consent, the relevant condition and the proposed change
- if for an application for a transfer of a water permit: the site for which the water permit has been granted
- if it is an application to vary or cancel an instrument creating an esplanade strip, a description of the strip and its location and any proposed variation
- a statement that the application includes an assessment of environmental effects (AEE)
- information on where the application and accompanying information may be inspected or purchased (web address or place)
- the name of the person to contact with any queries and the contact details
- a statement that submissions can be made in writing on a prescribed submission form by any person and sent to the council, from where copies of the appropriate submission form can be obtained (refer to Form 13 or Form 16B if the submission is regarding an application lodged with the Environmental Protection Authority (EPA))
- state the closing date for the receipt of submissions at the council (this must be the 20th working day after the date of the public notice or date where extension of time is granted by council)
- state the address for service for the council and the applicant
- state that a copy of every submission must be served on the applicant as soon as reasonably practicable after serving the submission on the council.
There are a variety of ways to present this information in a public notice. However, it is important to keep in mind the audience is the general public who may not be familiar with the jargon and technicalities of the RMA. Section 2AB(2) requires any public notice on the internet to be worded in such a way that is clear and concise. To help the public interpret and understand the public notice, it is recommended the notice include:
- a brief explanation about why the application was publicly notified.
- reference the RMA only where necessary and avoid quoting large sections of it
- use of an easily read font: avoid extremely small and hard to read fonts
- the address of the website in bold font.
- It is good practice to allow the applicant and/or their agent to view the public notice prior to it being published
Summary of public notice
A short summary of the online public notice is to be published in at least one newspaper circulated in the entire area affected by the topic of the notice, and needs to refer the reader to the freely available web address where full notice can be viewed. The summary is to be worded in a way that is clear and concise, using plain and simple text and wording and should cover the following information:
- The name of the relevant consent authority
- The name of the applicant
- A clear and concise description of the proposal
- A clear and concise description of the location
- The closing date of submissions (if applicable)
- Weblink to the full public notice.
Regulation 10A of the Resource Management (Forms, Fees and Procedure) Regulations 2003 provides the council with the discretion to affix the summary of the public notice in a conspicuous place within the site or adjacent to the site to which the application relates. It is good practice to erect a sign displaying the summary of the public notice, especially if the proposed activity takes place in an area with widespread effects or will affect people who are not directly notified.
Suspension of the application by the applicant (sections 91A-91F)
Fully notified and limited notified applications can be placed on suspend by the applicant under s91A any time between notification (under s95) and the close of the hearing (if a hearing is to be held) or between notification and the date that the final decision is issued (if no hearing is held). Non-notified applications can also be suspended at the request of the applicant (s91D).
When a request is received from an applicant (by written or electronic notice), the council must suspend the processing of the application under section 91A or 91D.
The applicant can only request that a notified application be suspended under s 91A if there have been less than 130 working days that the application has already been on hold for (ie for s 91 (awaiting additional consents), s 92(1) (further information), s92(2) (report commissioning), s95E (awaiting written approvals of affected persons), or s99 (referral to mediation). A non-notified application may only be suspended if there have been less than 20 days previously excluded from the time limits for the reasons set out in s88B.
The council must give written or electronic notice (electronic if they have provided an electronic address for service) to the applicant specifying the date on which the suspension started. It is good practice to also state the date at which the suspension will expire in this notice, as is sending a reminder letter or speaking to the applicant towards the end of the suspension period to remind them that the suspension period is about to expire.
The council must resume processing of a suspended application at the applicant’s request.
If the application remains suspended for longer than the specified time period (including all other periods when the application was suspended), the council must either return the application to the applicant, or continue to process it. The intent of this deadline is to avoid situations where applications are suspended for long period of time as this can create uncertainty for affected communities and prevent others seeking access to resources.
There are no criteria in the RMA that the council must take into account when deciding whether to return the application. However, some possible considerations include:
- whether there has been any communication from the applicant during the period the application was suspended
- what is known about the reasons the application has been on hold
- whether the applicant has made progress in further developing their application
- whether the applicant is likely to provide adequate information
- whether the applicant appears interested in proceeding with the application or resolving any issues
- whether the costs of processing the application to date have been recovered
- if there are other parties involved in the process, whether negotiations with them are known to be occurring and progressing
- whether the applicant can be contacted
- the level of investment that has been made in the process to date by the applicant, submitters, the council and any other parties
- whether the application is being made to replace a resource consent that will expire. In these circumstances, consider whether sections 124 to 124C apply to the application.
A decision to return the application means that, if the applicant still wants to obtain resource consent, they will need to re-apply and their application will be treated as new.
An alternative option is for the consent authority to extend the timeframe of the suspension period using section 37.
Under 357(3A), applicants may object to an application being returned but they cannot object to the consent authority’s decision to continue processing the application.
Further information about how to implement sections 91A to 91C can be found in the Ministry for the Environment’s publication: “A guide to the six month process for notified resource consent applications”
The process for making submissions
Sections 96(1) and 96(2) of the RMA provide for any person to make a submission to a council on an application for a resource consent that is publicly notified in accordance with ss95A or 95C, unless they are a trade competitor and are submitting on trade competition grounds (as outlined in s308B).
If an application is limited notified in accordance with s95B, only those persons who were served with notice of the application may make a submission under ss96(3) and 96(4), unless they are a trade competitor and are submitting on trade competition grounds (as outlined in s308B).
A submission can be in support or in opposition to the application, or neutral in its stance. It is desirable however that the submission specify clearly whether the submitter wants the application declined, approved, or subject to identified conditions.
The submission may be written or electronic and must be in the prescribed form, Form 13 (or Form 16B if the submission is regarding an application being processed by the EPA). Form 13 requires the following information:
- the name of the council the submission is lodged with
- the name and contact details and electronic address for service of the submitter
- the application to which the submission applies
- a brief description of the type of application applied for, the proposed activity and the location of it
- the specific parts of the application to which the submission relates
- whether the submitter supports, opposes or is neutral to specific parts of the application and/or the entire application
- the reasons for making the submission
- the decision the submitter wishes the council to make, including any amendments, and the general nature of any conditions that the submitter believes should be imposed if the consent is granted
- whether the submitter wishes to speak to the submission at the hearing
- whether the submitter wishes to consider presenting a joint case with others making a similar submission
- whether the submitter requests pursuant to s100A that the hearing be heard by one or more hearings commissioners who are not members of the local authority.
- a note to submitters stating that if they request the use of hearings commissioners under s100A they may be liable to meet or contribute to the costs of the hearings commissioner or commissioners.
- A note to submitters outlining the submission strike-out provisions (s41D).
Closing the limited notification period early
Under s97 councils may choose to close the submission period for limited notified applications early if all affected persons have provided the consent authority with a submission, written approval, or notice that they will not be making a submission.
If the council decides to close the submission period early, it must do so on the last day that it receives the final submission, written approval, or notice that a submission will not be made from the final affected persons.
If the submission period is closed early, the time period after which a discount is payable under the Discount Regulations remains 100 working days from lodgement. This means that by closing the submission period early and beginning the hearing sooner, the consent authority reduces the likelihood that it will be required to pay a discount if the hearing or the preparation of the decision take longer than anticipated.
Common problems with submissions
Below are common problems experienced with submissions and some suggested solutions.
Sections 37(1)(b) allows a consent authority to waive any failure to comply with a time limit provided that it takes into account: The interests of any person who, in its opinion may be directly affected by the extension or waiver; and the interests of the community in achieving adequate assessment of the effects of a proposal, and its duty under section 21 to avoid unreasonable delay.
Using a set of criteria can assist in determining whether a late submission is able to be accepted or not in a consistent way. However, late submissions still need to be addressed on a case-by-case basis.
Incomplete information in the submission.
For example, the submitter has not provided:
It is very important that submitters understand the importance of fully completing their submission. This can be helped by developing clear, user-friendly submission forms and supporting information and guidance.
It is good practice to review submissions as they are received. Where a submission is incomplete, contact the submitter to explain why it is thought to be incomplete and invite the submitter to complete it. This is particularly important if the missing information relate to reasons, decision sought and conditions.
If the missing information is not provided, submitters need to understand that their submission may not be fully understood or may be disallowed.
Submitter has not indicated if they want to be heard or not
It is good practice for a council officer to phone submitters and clarify whether or not they want to be heard. They need to understand that by not ticking the "I wish to be heard" box, they will not be notified of the date, time and place of any hearing (s101(3)(b)), nor will they be able to participate in a hearing.
Conversely, if submitters initially indicate they wish to be heard and then decide to forfeit this right, it is recommended the withdrawal be received in writing and that these submitters be informed of the implications as stated above.
Submission has not been served on the applicant
It is good practice for a council officer to phone submitters and advise they are required to serve a copy of their submission on the applicant (according to s96(6)(b) of the RMA). The council may also choose to send copies to the applicant itself.
Receipt of submissions
- Acknowledge the receipt of each submission via their electronic address for service if provided or in writing. This gives submitters certainty their submission has been received.
- Provide information in the acknowledgement letter on any pre-hearing meeting to be held; a summary of other submitters' concerns could also be included
- Let the submitter know that if a hearing is to be held they can request independent commissioner(s) to hear and decide the application instead of the council (s100A). However, the submitter should be informed that they may be liable for all or part of the costs.
- Combine the notice of hearing with the acknowledgement of the submission, if a hearing date has already been set.
- State that latest date that a decision can be issued in order to meet statutory timeframes. This will be either 90 days after the close of submissions for notified applications or 60 days after the close of submissions for limited notified applications.
- Inform the submitters that the applicant has the ability to place the application on hold under s91A for up to 130 working days (or the remaining relevant time once other excluded days have been taken into consideration).
Receiving submissions electronically (such as by e-mail or through a council website) can save time by:
- Receiving and automatic date stamping submissions at any time without the need for staff on duty
- Being able to copy and paste text when summarising submissions
- Enabling submissions to be easily forwarded to the applicant electronically
- Having mandatory fields in online submission forms to ensure all boxes are filled in
- Less copying and posting of paper submission forms
- Avoiding the time for submissions to be delivered via post and submissions being lost in the mail.
Submissions lodged electronically do not require a signature.
Submissions and trade competition
Section 308B of the RMA makes it clear the RMA is not to be used by trade competitors to oppose applications on trade competition grounds. A trade competitor can only submit on an application if they are directly affected by the adverse environmental effects of the application. If a trade competitor is considered to be adversely affected by the application, their submission must only relate to the effects on them and cannot consider trade competition or the effects of trade competition.
For more information on submissions and trade competition refer to the Trade competition fact sheet on the Ministry for the Environment’s website.
Advising the applicant
A council must provide the applicant with a list of all submissions received as soon as reasonably practicable after the close of submissions (s98). If the applicant has provided an electronic address for service, this list must be provided to that electronic address (unless they have requested another method of service).
Although the RMA requires all submitters to serve a copy of their submission on the applicant, in practice, this does not always happen. Therefore the council list is important to ensure the applicant is aware of all of the submissions.
Withdrawal of submission or request to be heard
There is no specific section of the RMA that deals with the withdrawal of a submission or the request to be heard. However, for any withdrawal, it is good practice to require the submitter to do so in writing.
Where submitters choose to withdraw a submission or the right to be heard, it is also good practice to clarify their legal status relating to the application. A submitter who no longer wishes to be heard will retain the right to appeal any decision made by the council (if the appeal relates to a matter raised in their submission and the application was not for a boundary activity (defined in s 87AAB),
However, if the submission is withdrawn, the submitter has no right to appeal.
Affected parties written approvals
A person is not an affected person for the purpose of giving limited notification if that person has given approval for the proposed activity by written notice ((s 95E(3)(a)) When these are provided to the consent authority by an applicant, they should be checked to ensure that any accompanying plans have also been provided (and signed) and have not been superseded by more recent amendments or plans. Written approvals to an application cannot be conditional.