Section 95C requires that applications must be publicly notified, if the applicant:
- fails to respond to a further information request within the time specified
- agrees to provide the information, but then does not supply the information within the time limit
- refuses to provide the information.
This also applies where a council wants to commission a report (s92(2)). Councils must then continue to process the application and consider it under s104.
The applicant needs to be made aware of the consequences of not providing the requested information or agreeing to a report being commissioned. This is important as there is likely to be additional costs and time for the applicant associated with public notification that could be avoided. Some applicants may wish to withdraw their application rather than have it notified and potentially declined because they failed to respond or refused to provide information. It is therefore, good practice to clearly communicate the options to the applicant before notifying the application.
Under s36AAB(2) the council does not have to perform an action until a charge related to that action is paid in full. So if an application must be notified because further information has not been provided, the council does not have to carry out the 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.
The following means could be used to advise an applicant about the further information provisions in the RMA and their options for responding:
- application information packs
- pre-lodgement and lodgement meetings
- information sheets that outline the notification and decision making processes and provide an indication of the additional costs and time involved
- follow-up phone calls and/or a letter before the deadline expiry, or after the applicant advises of refusing the request.
Where an applicant has been informed of their options but chooses to refuse or not respond to a request for further information or a report, the applicant should be made aware that:
- the application will be publicly notified and that this will involve additional costs and time
- any hearings panel/commissioners might also request that further information be provided during the hearing, with hearing adjournment and consequential delays the likely result
- if the information in the application is so deficient that the effects cannot be adequately determined, then it is likely to be declined
- that council must have regard to the applicant's response to requests for information or reports when assessing the adequacy of information.
Where there is inadequate information to determine the application then the application may be declined. When taking this step, it is important to take into account the applicant's response to requests for further information and to consider who may be affected by the application. These findings should be clearly documented.
Objection rights (s357 to s357B)
Applicants do not have a right to object to the council in relation to s92 further information requests, however if the application is subsequently declined due to lack of information (in accordance with an assessment under 104(6)), the applicant may make an objection in relation to the council’s decision (under and subject to s357A(2)) refer to “Issuing a decision” for further guidance in relation to objections.
Appeal rights on a council decision to decline an application (s120)
In addition to the objection rights noted above, the applicant may also appeal the decision (under s120) to decline the application on the basis of lack of information under s104(6) (as long as the decision does not relate to a boundary activity or a subdivision or a residential activity (unless they are non-complying activities) (s120(1A) refers). The Environment Court will hear and decide the application and may also decline the application on the grounds that it has inadequate information under s104(6).