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Consent processing - administration

Abstract

Administering the processing of resource consent applications in an efficient and cost effective way is an important part of the overall management of applications once they are lodged with the council. This guidance note provides good practice tips for keeping records, tracking and charging throughout the resource consent process.

The Resource Management Act 1991 (RMA) limits the times the processing 'clock ' can be stopped for further information requests and when s37A can be used to extend time frames. These changes, in combination with the introduction of a discount policy under s36AA, makes tracking key consent processing milestones particularly important.

Section 310 also introduces the requirement for councils to provide information under ss35 and 35A to the Minister for the Environment within specified time frames.

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Guidance note

This note provides guidance on:

Duty to keep records

Sections 35 and 35A of the RMA require every council to gather sufficient information and undertake research as necessary to carry out its functions or regulations under the RMA.

Section 35(2) requires councils to monitor matters such as the efficiency and effectiveness of policies and rules in its policy statement or plan. This reinforces the fact that councils are responsible for their performance.

Section 35(3) requires every council to keep records of certain information so the public is better informed of the duties, functions and powers of the council and are able to participate effectively under the RMA. Section 35(5) requires councils to include records of all:

In addition to performing an important audit function, this information can also be used to:

Section 35A requires councils to keep and maintain records about each iwi and hapū within its region or district. This includes:

This information is important to facilitate consultation with tāngata whenua and ensure that Māori interests are taken into account. Refer to the Facilitating consultation with tāngata whenua guidance note.

Keeping a record of information on resource consent processing activities helps a council respond to the Ministry for the Environment's RMA Two-Yearly Survey of Local Authorities. The information recorded in this survey is used to monitor council's implementation of the RMA, to highlight trends in practice, and to promote council best practice and improved performance.

Section 360(1)(hk) provides for a regulation requiring councils to provide information under ss35 and 35A to the Minister for the Environment within a specified time limit. It is intended that such a regulation will be used to make it mandatory for councils to supply the above mentioned survey information to the Ministry within a set time frame. It is therefore important that councils gather, monitor and keep the records they are required to as set out in ss35 and 35A.

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Setting up the consent file

The most common way to contain and keep track of resource consents is to use a separate file for each consent, with an allocated and individual consent application number recorded on the file. However, some councils may prefer to record consent applications on the property file rather than making a new separate file.

If a new file is being created, it is important that an easily understood and logical file numbering system is used. There are many variations of this, but suggestions include incorporating the type of consent (eg, LU for land use, SU for subdivision, and DP for discharge permit), and the date of the application (eg, 01 for 2001), followed by a unique consent application number (identifier).

It is important that the council has a system whereby all the consents associated with a particular property address can be readily identified or cross-referenced. Therefore, a property file system may be more logical to use with an area within it sectioned off for resource consent matters.

Keep an overall register of all resource consents including relevant numbers, dates and other critical data.

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Allocating the application to a staff member for processing

Every application should be allocated to one council officer who is then responsible for its processing (including compliance with time frames and coordinating specialists). They should have suitable experience to process the particular proposal.

Applications should ideally be allocated according to their perceived complexity, staff skills and expertise, and any previous involvement, such as pre-application meeting(s) or involvement in prior consent(s) relating to the site or locality.

When allocating a more complicated application to new staff or less experienced staff, make sure an experienced staff member provides coaching and mentoring to the processing officer and regularly checks with the person regarding how the processing of the application is going and if they have any concerns about how it should be managed or reported on. This will ensure the system runs as smoothly as possible and will provide the processing planner with greater confidence. Also, have another staff member available for questions.

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Circulating the application internally to other council departments

Communication with other parts of the council about applications is highly recommended. Depending on the specific application, internal circulation can help with coordinating aspects of the applicant's overall proposal, or seeking specialist advice on an aspect of the application.

If comments are sought from another department, a work brief should be prepared that clearly specifies the nature of the advice required and the date by which it must be provided. This will help to ensure advice is provided within the required time frames. Note that circulating applications to other departments does not mean that the processing clock can be stopped. Time frames set for reporting on applications within the council must still allow the statutory time frames to be met.

Recording and filing key information

The information to be recorded specified by ss35 and 35A should be considered as a minimum requirement only. For example, it is important that councils record all key information and milestones relating to the resource consent process (whether in paper files or in an electronic document management system or both). This information is particularly vital to monitor consent processing time frames and also supports a council's decisions on key stages in the process such as notification and whether to grant the consent.

The information is also important if an external party has to review the evidence on file to support the decisions made or if there are complaints relating to delays in the consent processing time frame which need to be addressed.

All correspondence relating to a resource consent application should be placed on the file relevant to the application in chronological order. Once a consent has been processed, all correspondence about that consent should also be retained on the same file.

In addition, the following should be filed in the same place as the application:

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Monitoring processing time and discount policy

It is important that the processing time frame is closely monitored as part of the administration of the application to help ensure the statutory time frames prescribed in the RMA are met.

This will be particularly important for consent processing charges when the council is responsible for delays in the consent processing time when the discount policy comes into effect.

The discount policy will be introduced by July 2010 by regulation following recommendations from the Minister for the Environment and consultation with local authorities. S36AA provides for councils to adopt their own discount policy provided it is more generous than the discount set in the regulations.

Processing sheets

A number of councils have created their own cover sheets for recording information about a particular application. These are usually copied and kept at the front of any file set up for an application. Alternatively, they can be printed on the actual cover face of the file for easy reference.

Including a processing sheet at the front of a consent file is an effective way of recording key information and monitoring compliance with statutory time frames. These sheets should be updated to reflect consent processing time frames  in terms of when the statutory clock is able to be stopped, and to record the reasons and responsibility for any delays. The following section on Time frame milestones has more information on the key dates to record.  

The information recorded in this processing sheet should correspond to the information requirements of a council's consent records database.  

A checklist can be used as a basic template and developed according to a council's specific practices. The following are recommended matters for recording:

For limited notified/notified consents, additional time frame milestones need to be recorded. Refer to the time frame milestones section below for further details.

It is important to remember that any information recorded about a particular consent application must be clear and accurate, and relatively easy to extract. Information should also be recorded as it happens, not once the consent has been granted or refused.

Fill out the cover sheet information at the same time the council database is updated. It may be more appropriate to have administration people doing this work so that planners can focus on assessing and reporting on applications.

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The time frame milestones

Processing an application within the time frames set by the RMA is vital. The time taken to process an application is often the biggest complaint about the resource consent process.

The onus is on councils to make sure time limits are met, which is particularly important in light of the discount policy. In addition, there is also a requirement under s21 of the RMA to 'avoid unreasonable delay'.

The key time frame milestones in the RMA for processing a consent application are:

  1. The date the application was lodged.
  2. The date an incomplete application is returned to the applicant - ­ maximum of five working days from the date the application was lodged (s88C(3)).
  3. The date the application is formally received - this is the same date as the lodgement date if the application is not returned because it is incomplete. The clock starts from the date the application is formally received and a letter is sent to the applicant.
  4. The date further information/commissioning of report requests are made and received (assuming requests are agreed to) and the clock is stopped and started. While the RMA does not specify when requests for further information need to be made by, it is good practice to limit this to within five working days of receiving the application so that the 10 working day time frame for notification can be met should the application be notified. If the application is notified then a further information request can be made following the close of submissions. Any further information requested in addition to one request for non-notified and two for notified applications does not stop the statutory clock.
  5. The date of notification (public or limited)/non-notification -
    1. Where it is decided to notify the application, this decision must be made and the application publicly notified or notice served (limited notification), within 10 working days of receiving the application (excluding the period when the clock has been stopped due to the first further information request).
    2. Where it is decided not to notify the application, there is a maximum of 20 working days from the date the application was formally received, to issue a decision on the application (excluding the period when the clock has been stopped due to the first further information request ).
  6. The revised dates if section 37A was used to extend the statutory time frames.
  7. Close of submissions - 20 working days after the date of public notification/service of notice.
  8. Advice of submissions to applicant - as soon as reasonably practical after the closing date of submissions.
  9. The date of any request to delegate the decision making to independent commissioners (s100A).
  10. The hearing date (if a hearing is required):
    1. It is best practice to make this decision and advise the applicant and submitters as soon as is reasonably practical.
    2. The date of the hearing must be set no more than 25 working days from the date submissions closed for notified applications. For non-notified applications the hearing date must be within 25 working days from lodgement.
  11. The date of any pre-hearing meeting or mediation
  12. The date for the provision of evidence before the hearing:
    1. If directed, the applicant must provide the council with the briefs of evidence at least 10 working days before the hearing begins.
    2. If directed, a submitter who is intending to call expert evidence must provide the council with the briefs of evidence at least five working days before the hearing. There is no requirement for these briefs of evidence to be circulated to other parties; however, it may be best practice to do so.
  13. The date(s) the hearing was held and closed.
    1. When the hearing is adjourned and the applicant's right of reply has been exercised, the hearing date must conclude no later than 10 working days after the right of reply has been exercised.
  14. The date the notice of decision served on the applicant:
    1. Where a hearing was held, no later than 15 working days after the conclusion of the hearing.
    2. Where there was no hearing, no later than 20 working days from the date of formally receiving the application (excluding any period when the clock has been stopped due to a further information request or the applicant seeking written approval from affected parties) for non-notified applications.
  15. The date of any objections received - an objection must be lodged with the council within 15 working days of notice of the decision being received by the applicant.
  16. The date of any objection hearing (if necessary) and the date of the decision.
  17. The closing date for appeals - a notice of appeal must be lodged with the Environment Court within 15 working days of notice of the decision being received by the applicant and submitters.
  18. The date the resource consent commences.

It is also useful to record information on any appeals that may be made. For example consider recording:

Where direct referral has been requested, there are a number of other important milestones. These include:

  1. The date any request for direct referral is received.
  2. The date when council makes a decision on direct referral - within 15 working days of notification decision or the direct referral request (whichever is the earlier).
  3. If direct referral declined:
    1. the date which the council advises the applicant and provides reasons
    2. the date for any objection to the council decision to decline the request for direct referral and the outcome of the objection
    3. if the objection is upheld and the application is processed by council, the dates in the process (hearing etc.)
  4. If direct referral granted:
    1. the date which the council advises the applicant and provides reasons
    2. the date the council report is provided to the applicant and all submitters - 20 working days after submissions close or 20 working days after council grants the direct referral request (whichever is longer)
    3. the date the council provides the Court with all information relating to the application (application, report, submissions etc.)
    4. the date of the decision on whether to be a party to the Environment Court proceedings - notice to be given to Court and all other parties within 15 working days from lodging the direct referral notice at Court.
    5. the date of the Environment Court decision on the consent

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Meeting the milestones

Processing a consent application within the statutory time frames should be the responsibility of the person allocated the consent. Refer to the section Using processing sheets for help with using processing sheets to record the dates of key milestones.

In addition to processing sheets, councils use a range of other effective mechanisms to help them meet the statutory time frames for consent processing. The extent of the system required will depend on the number of consents processed and the number of officers involved in processing them. Some councils use the following methods to ensure milestones are met:

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Using sections 37-37B to extend the time frames

Sections 37 and 37A of the RMA allow a council to extend the time limits specified in the RMA. Extensions of time only apply to applications for resource consent, changes or cancellations of conditions or reviews of consents (s37A).

Under s37A(4), a council can extend a time limit for up to double the the maximum period specified in the RMA when:

The council must also take into account the matters in s37A(1), which include:

The council must also ensure every person who it considers is directly affected by the extension of the time limit is notified of the extension.  

Under s37A(5), a council may extend the time to exceed twice the maximum time period specified in the RMA only if the applicant agrees to the extension and the matters in s37A(1) have been taken into account.

Close communication with the applicant is required when proposing the use of s37A. Applicants need to be contacted as early as possible if there may be a need to extend time frames and given reasons why. Applicants are likely to be more agreeable to an extension of time frames when they understand the reasons why.

When the applicant does not agree to an extension of time, s37 can then only be used where there are special circumstances. Where the applicant's agreement has not been obtained, the use of s37-37A should be supported by clear reasons why special circumstances are considered to exist which require an extension of time. This should only be when the delay is outside the control of the council and may include the scale or complexity of the application. It should not relate to when there is a high workload at the time or other internal resourcing issues.  

Time extensions may be appropriate in the following situations:

Determining whether special circumstances exist will need to be done on a case by case base for individual projects. Special circumstances in the context of notification have been defined as circumstances that are unusual or exceptional, but may be less than extraordinary or unique (Peninsula Watchdog Group (Inc.) v Minister of Energy [1996] 2 NZLR 529 (Court of Appeal)). Refer to the To Notify or Not to Notify guidance note for more information on special circumstances in the context of notification decisions.

Where ss37 and 37A have been used to extend time periods, applications should be recorded as having been processed within time, provided the limits set for processing through the use of ss37 and 37A have not been exceeded.

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Forms and checklists

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Case law

The following cases contain discussion on time frame and administration matters:

Bletchley Developments Ltd v Palmerston North City Council (No 1) [1995] NZRMA 337 (PT) - This decision recognises that a council can not utilise s92 to put pressure on applicants who ultimately meet the costs of any delays in processing.

Golden Bay Marine Farmers Consortium v Tasman District Council 19/12/00 HC AP252/00 - A consent may commence before any appeals are determined if the Court makes an order under s116(1). Temporary commencement may be allowed where adverse effects are reversible.

Johnston v Waikato Regional Council A92/92(PT) - A notice of appeal transmitted by fax and received by the Registrar after office hours is not deemed to be lodged with the Registrar until the next working day.

Withers Family Trust v Auckland Regional Council EnvC A101/2002 - The day on which service of a decision is effected (the day of receipt) must be excluded from the calculation. That is, the 15 day period commences on the first minute of the next day.

Butel Park Homeowners' Assn v Queenstown Lakes DC C142/06 - Addresses whether a decision to grant a waiver under s37 need to be explicit or whether a waiver can be granted implicitly.

Oruawharo Marae Trust v Auckland RC [2007] NZRMA 487 - There is no jurisdiction under s116 to order early commencement of coastal permits for restricted coastal activities.

Porpoise Bay Limited v Southland DC C089/06 - Deals with the fixed and additional charging regime under s36(1) to (5). For a charge to be a fixed charge it must be able to be determined in advance. All other charges are additional charges and open to challenge.

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Relevant publications

Resource Consent Processing: Showcasing Best Practice Case Studies
Published by Ministry for the Environment - June 2010
This series of case studies showcases best practice in council Resource Management Act consent processing performance, including the pre-application phase.

Your Guide to the Resource Management Act: An essential reference for people affected by or interested in the RMA
Published by Ministry for the Environment - August 2006
This guide for the public presents a simple explanation of the RMA legislation, the processes it has established, and how people can use it to pursue their interests.

RMA Survey of Local Authorities
Published by Ministry for the Environment
Every two years, the Ministry for the Environment carries out a survey of resource management processes in local authorities.

A Review of Council RMA Resource Consent Processing: Round One
Published by Ministry for the Environment - January 2008
This report provides information on council processing administration from a review of councils following a decline in the performance of councils meeting statutory time frames.

A Review of Council RMA Resource Consent Processing: Round Two
Published by Ministry for the Environment - January 2008
This report provides information on council processing administration from a review of councils following a decline in the performance of councils meeting statutory time frames.

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Current challenges in practice

Developing a discount policy

A default discount policy for resource consent charges where processing time frames have not been met and the council is responsible for delays, is to be recommended by the Minister for the Environment as a regulation by July 2010. Councils may also develop their own discount policy provided it is more generous than that set out in regulation.

Councils will need to stay informed of the development of the discount policy regulation so that they can adapt consent administration systems accordingly.

Diligently tracking resource consent applications throughout the process

It is often challenging tracking resource consent applications throughout their processing. This is particularly the case when there are heavy workloads and the pressure to assess applications far outweighs ensuring the necessary administration protocols are undertaken. This can lead to specific milestones not being met.

This task has become more complex through the introduction of direct referral, which has introduced new milestones, and limits on the number of further information requests that can stop the clock and when section 37 can be used to extend time frames.

To combat this, processing teams should ideally be helped by staff whose job it is to only undertake consent administration work. This will create a consistent approach and ensure milestones are documented. It may also help if planners track their own application workload through a spreadsheet arrangement so they know well ahead of time what their workload and deadlines will be in any given week.

Obtaining sufficient information from other council departments

Most council's diligently circulate applications to other departments to gain advice about more specialised parts of the application, for example environmental health aspects or traffic engineering matters.

Sometimes the level of information gained from them may not be of sufficient detail or is of little relevance under the RMA. In addition, the information required from them may not be received within the required time frames. These types of challenges can lead to decisions being issued late.

To avoid such problems, identify soon after the receipt of the application what technical advice is required, and distribute information to technical experts early in the process. The processing planner should specifically outline what the particular advice sought is, particularly when applications may be more complex or out of the norm.

Setting time frames for responses is also crucial and where they are not met the administration officers should remind the relevant staff of the time limits that need to be met.

It may be a good idea to get agreements with other sections of the council, and/or implement performance measures. Some council's either have experts attend lodgement meetings, or get all applications vetted by experts so it is clear whether the application is adequate for their purposes.

Confidential document management

Some documents received by the council will be sensitive and should remain confidential. Generally these tend to be legal opinions about specific resource consent applications and relate to the position of the council. These should be kept on the consent file but separately divided from the other non-confidential material, so they can be removed easily from the file should someone from the public wish to view the file at any time. The cover of the file should also identify if there is confidential material on the file that should be removed before being made available to the public.

Meeting milestones and using sections 37 and 37A correctly

During periods of high workload and/or dealing with complicated or large applications, it may be difficult to meet the statutory time frames set in the RMA. It can then become challenging for officers to recognise when processing time milestones may not be met and when it may be appropriate to apply ss37 and37A.

An extension up to twice the maximum period specified in the RMA, must only occur with the applicant's permission or when special circumstances apply. To extend the time frame beyond double the time frame requires the applicant's agreement.

Councils should set up protocols on when special circumstances might apply under s37A. These should include the scale and complexity of the issue but not internal resource issues such as workload or staff resources. These protocols should also outline what actions should be taken to communicate with the applicant about a proposed extension of time and the reasons for it.

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This Guidance Note was updated in November 2009 by Jerome Wyeth of Hill Young Cooper Ltd and MfE.