Section 92(1) of the RMA enables a council to request further information from the applicant. Section 92(2) enables a council to request an applicant agree to the commissioning of a report. An applicant has the right to agree or refuse either request. Section 41C of the RMA allows these requests to be made at hearings; s41C reports can only be commissioned when the hearing panel or commissioner considers the proposal may have a significant adverse environmental effect, the applicant is notified and does not refuse to agree to the commissioning of the report.
Section 92(1) enables a council to request further information at any reasonable time before the hearing of an application, or if there is no hearing, before the decision is made on the application. However, the earlier in the process the request is made, the better.
It is good practice to make a request for further information within 10 working days of receiving the application (or within 5 working days in the case of a fast track consent). This should allow time for a site visit and allows the statutory time frame for making the decision on notification to be met. The notification decision must be made within 20 working days of the date that the application was lodged (or within 10 working days with respect to fast-track consents (s95), excluding any days the clock has been stopped.
Although there are no limitations on the number of further information requests that can be made, there are limitations on when the processing clock can be stopped (s88C). For both notified and non-notified applications (including fast track applications), the clock can only be stopped once by the council for a further information request and only when the request is made prior to the notification decision. This means that once the notification decision has been made, the processing clock cannot be stopped when/if the council asks for further information (under s92(1)) after this time. This also applies to fast track consents where the (unusual) decision has been made to notify the application (and as such the application ceases to be a fast track application). If an application is a fast-tracked application under section 87AAC and contains only the information as prescribed by any relevant regulations made under s87AAC(1), and s87AAC(2) does not apply, the council may request any of the information referred to in section 88(2)(b) from the applicant under s 92(1). However, due to the fact that this further information request is after the notification decision, the processing clock cannot be stopped.
The clock however can be stopped any number of times in relation to reports commissioned under s92(2) in the RMA. Such reports can only be commissioned before a hearing of an application, or if there is no hearing, any time up until a decision is made on the application, and must meet the criteria in s92(2)(a) to (c).
To minimise the number of times further information is requested, the processing officer should consider all aspects of the proposal and discuss with all relevant internal departments to accurately scope the potential effects of the activity and any potential information gaps. This will enable all information requirements (eg, traffic, engineering, planning) to be dealt with in one combined written request.
The information request should seek to ensure sufficient information is available to provide a good understanding of what is proposed and the likely environmental effects that from the proposal. This information should provide the basis for making a decision on the application. For more complex applications where the effects adverse effects will be minor or more than minor, the information requested should allow a notification decision to be made and the application to be notified or limited notified if appropriate so that submitters can understand the effects of the proposal.
Under the Resource Management (Discount on Administrative Charges) Regulations 2010 (Discount Regulations) councils are required to give a discount on consent fees if an application is not processed within the RMA’s statutory time frames. Therefore any information requests should be thorough and as complete as possible to help the statutory time frames to be met.
For more information on the Discount Regulations and how they are administered refer to the Discount on administrative charges regulations | Ministry for the Environment website.
Further information cannot be requested under s92 in relation to:
- Deemed permitted activities;
- S128 review of consent conditions;
- S125 Extension of lapse period.
In relation to certificates of compliance, and existing use certificates, further information can be requested under s139(4) and s139A(3) respectively and only if the council considers the information is necessary to determine it can issue the relevant certificate.