Applicants have three options when responding to a s92(1) further information request. They can:
- provide the information
- agree to provide the information
- refuse to provide the information.
Applicants must tell the council what they intend to do in writing within 15 working days from the date of the request. If an applicant agrees to provide the information, the council must set a reasonable date by which the information needs to be received and advise the applicant in writing of this date (s92A(2)).
When setting a reasonable date for applicants to provide information, councils should consider:
- Would the type of information requested require expert input to be obtained? What is the likely availability of persons with that particular expertise?
- How extensive is the further information request? Does it cover a number of matters?
- Would the information requested require some form of testing that may take some time?
- Is there any particular urgency that would necessitate setting a tight time frame? For example, the application may be retrospective for unauthorised works which, unless addressed, could have adverse environmental effects.
When setting the time frame, it is important to remember the duty under s21 to avoid unreasonable delay. Remember that often there are other persons are affected by the application and long delays in its processing can result in uncertainty for them.
It is good practice to discuss the new time frame for providing the information with the applicant, before issuing the extended time frame in writing.
Section 88C states an application comes off hold on the earlier of either:
- the date when the applicant provides the requested information (either within the initial 15 days or by the new date prescribed by council)
- the date when the applicant refuses to provide the requested information
- when the 15 working day time period expires.
At the time the application comes off hold, the processing 'clock' must be re-activated to the statutory day the request was made not reset to zero working days.
The council officer should contact the applicant just before the expiry of the time frame with a reminder of the need to respond and the implications of not responding. The council must continue to process the application if the applicant:
- does not respond to the information request within 15 working days, or refuses to provide further information
- agreed to provide information but it is not received within the time frame set by council.
If the applicant refuses to provide the information, does not respond to the request, or does not provide the information within the prescribed time frame (when they had agreed to do so), the council must publicly notify the application (s95C). The council must then consider the application under s104 and may decline the application on the basis of there being inadequate information to determine it (s104(6)).
If the requested information is provided after the deadline but before the authority has notified the proposal (pursuant to s95C), then it would be good practice to continue to process the application on the basis of the new information provided and to not automatically notify it. Rather than automatically notify the application, it may be appropriate to ask the applicant if they agree to s37A being used to extend the statutory time frame to consider the information provided and then determine if notification is required.
If the further information is provided and a hearing is to be held, this must be made available for public inspection no later than 10 working days before the hearing. A council must give notice to submitters that the information is available as soon as is reasonably practicable to do so.