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Requesting further information

Abstract

Section 92 of the Resource Management Act 1991 (RMA) allows councils to request further information and/or commission a report, at any reasonable time before the hearing of an application or before the decision to refuse or grant consent if there is no hearing.

Additional information should only be requested where it is required in order to allow a council to make a decision on a proposal. Generally this information is needed to better understand any potential adverse effects.

The applicant has the right to refuse to provide further information or for a report to be commissioned, but in any event, must respond within 15 working days of the request stating what they intend to do. When an applicant does not respond or refuses to provide information or agree to the commissioning of a report, then councils must notify these applications in accordance with s95C and consider them under s104.

Section 88C sets out when further information requests and commissioning of reports stop the processing 'clock ' for resource consents. The clock stops a maximum of twice when further information is requested - once if the application is non-notified and twice if notified. The clock can be stopped any time a report is commissioned.

This guidance note provides good practice advice on requesting further information, commissioning reports and dealing with applicant's responses to such requests.

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Guidance note

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When should further information be asked for?

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 to agree to the commissioning of a report. Section 41C allows these requests to be made at hearings.

Section 92 enables a council to request further information at any reasonable time before the hearing of an application, or before the decision is made on the application (if there is no hearing). However, the earlier in the process the request is made, the better.

It is good practice to make a request for further information within five working days of receiving the application. This allows time for a site visit and allows the statutory time frame for making the decision on notification to be met. Notification must occur within 10 working days of receipt of the application (s95); excluding any days the clock has been stopped for the first further information request.

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 non-notified applications, the clock can only be stopped for the first further information request. For notified applications, the clock may also be stopped a second time after submissions close to address matters raised in submissions. The clock can be stopped any number of times in relation to reports commissioned under s92(2) in the RMA.

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. This will enable all information requirements (eg, traffic, engineering, planning) to be dealt with in one combined written request.

The first request should seek to ensure that sufficient information is available to provide a good understanding of what is proposed and the likely environmental effects that would arise from the proposal. This information should provide the basis for making a decision and, for complex applications, allow a notification decision to be made and the application to be notified or limited notified if appropriate. See Upper Clutha Environmental Society Inc v Queenstown-Lakes District Council and Geotherm Group Ltd v Waikato Regional Council.

While further information can be requested beyond the maximum requests, however the clock does not stop for such requests. Therefore any information requests should be thorough and as complete as possible to enable statutory time frames to be met.

The hearing panel or commissioner(s) can also request further information or reports during the course of a hearing to enable a better understanding of the application, adjourning the hearing if necessary (s41C).

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What should further information requests relate to?

It is important that further information requests are focused on getting all of the information required to make a notification decision and determine the application under s104. Therefore, a request for information should:

Use a standardised staff check list to assess the application in terms of its compliance with the RMA and relevant plan(s). This will highlight any gaps in the information provided that were not picked up in the Receipt of an application. Refer to Example: Checklist for processing officer (MS Word 89KB).

When deciding what further information is requested, the council needs to consider how essential the missing information is to allow a decision to be made. Ideally some agreement should be reached between the council and the applicant to provide the necessary information to determine the application. This process is particularly important for smaller proposals that would not usually require notification. Key aspects to consider include whether:

Any further information sought should not be:

Where information is required on minor matters, the council should contact the applicant directly to see if this information can be provided easily and efficiently without resorting to use of the formal written s92 process. This may help reduce processing time and costs.

How should further information be asked for?

Further information requests under s92 are required to be made in writing and must state the reasons for making the request. However, council officers should contact the applicant first to ensure they are aware of the request, the information required and the reason.

Requests for further information should inform the applicant of how they can respond to the request and the implications of not responding or refusing to respond. In particular, the s92 request should:

It is important that the further information request is worded clearly and unambiguously so that the applicant can understand the information required and their options, and respond accordingly. Refer to Example: Section 92 letter (MS Word 27KB).

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Responses to a request for further information

Applicants have three options when responding to a s92(1) further information request. They can:

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)).

Questions for a council to consider when setting a reasonable date include:

When setting the time frame, keep in mind the duty under s21 to avoid unreasonable delay. Remember that, particularly with notified applications, other persons are affected by the application and long delays in its processing can result in uncertainty.

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:

At the time the application comes off hold, the processing 'clock ' must be re-activated: it can not be reset to zero.

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:

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 in accordance with 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)). This process is detailed in the s92 further information requests flowchart.

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 in accordance with s95C. It may be appropriate to ask the applicant if they agree to s37A being used to extend the statutory time frame.

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 of an application. A council must give notice to submitters that the information is available as soon as is reasonably practicable to do so.

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Commissioning reports from other people

In addition to requests for further information under s92(1), s92(2) allows councils to commission reports on matters relating to an application if:

As with a further information request, the applicant must be notified in writing of the reasons for commissioning a report and advised they have 15 working days to respond and of the implications of refusing the request or not responding. Applicants should also be advised of the estimated cost of commissioning a report and the time needed to prepare it. Refer to Example: Letter to applicant to request the commissioning of a report (MS Word, 28 KB).

The processing clock is stopped from the date of the request until the date the report is received, where the applicant agrees to the report. If the applicant does not agree, the processing clocks resumes from the earliest date of the following:

If the applicant does not agree to the commissioning of a report under s92(2), then the application will be notified in accordance with s95C and considered under s104. Note that if the council considers that a report is required to adequately assess and evaluate an application, councils may still rely on s42A (Reports to local authorities). However, using s42A would not 'stop the clock ' and the council may need to consider seeking the applicant's permission to extend the time frames under s37 in this circumstance.

The commissioning of reports should be confined to matters that are critical to making an informed decision on a proposal - particularly on aspects that may have significant adverse consequences (eg, exacerbating the risks from natural hazards).

Generally, reports are commissioned for larger-scale or complex projects where specific expertise is required or when council does not have in-house expertise in a particular area. For example, a proposed new mining activity may have significant adverse effects on ground stability on surrounding properties and the council may seek a report by a qualified geologist evaluating the applicant's information provided. Refer to Example: Letter for commissioning report from an expert (MS Word, 25 KB).

Where a proposal may have a significant effect on Māori cultural values, such as those covered in RMA Part 2 matters, a cultural impact assessment (CIA) may be required. See Frequently asked questions about Cultural Impact Assessments (CIAs).

If the request for a report is agreed to and commissioned and a hearing is to be held, the report must be available for public inspection no later than 10 working days before the hearing. A council must as soon as is reasonably practicable after receiving the report, give written or electronic notice to every person who made a submission that the report has been commissioned and is available for public inspection.

Hearing panels or commissioners may also commission a report at a hearing on a matter or may request further information from an applicant or a submitter. Section 41C(4) allows this to occur provided that the applicant agrees and the activity may, in the Council's opinion, have a significant adverse environmental effect. This report must be provided to the applicant and every submitter who wishes to be heard and be made available at council office for submitters who do not wish to be heard.

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What to do when the applicant refuses to provide information, does not meet time frames, or refuses for a report to be commissioned?

Section 95C requires that applications must be publicly notified, if the applicant:

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.

The following means could be used to advise an applicant:

The applicant should be made aware that:

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

Applicants do not have a right to object to s92 further information requests.

Appeal rights on a council decision to decline an application

If the application is declined due to a lack of information, the applicant may appeal the decision under s120. 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).

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Is the further information received adequate?

An application comes off hold on the date the applicant provides the further information and it is deemed to meet the requirements of the request. Therefore it is important that the further information is promptly checked for adequacy upon receipt to ensure it meets the requirements of the request.

The information received should be checked against the s92 request, to ensure all the matters required to be covered have been adequately addressed. Where further clarification and/or minor detail is required, a council should contact the applicant to request the information directly. However, where the information provided is clearly deficient, a more formal approach may be required.

If the applicant has not satisfactorily covered all matters in the request, council should inform the applicant the information does not meet the requirements and outline what additional information and/or clarification is required in order to satisfy the s92 request. The council should provide clear deadlines and advise that, if the information is not provided by the specified date, the application may be subject to notification under s95C and subsequently declined on the basis of insufficient information. The processing clock should not be started again until all information requested is received.

What happens to older applications where further information is outstanding

There is a transitional provision in the RMA for handling applications for resource consent where further information requested prior to the commencement of the Resource Management Amendment Act 2005 has not yet been received. A council must consider a consent application to have lapsed if:

It is good practice for councils to inform applicants in writing of this provision as soon as possible to give them the opportunity to provide the information before the application lapses. Furthermore, once the consent is deemed to have lapsed it is good practice for the council to inform the applicant of the lapsing of the consent. When informing the applicant of the lapsing, the council should also inform the applicant the consent can be re-lodged if they wish to continue with the application, however it will be treated by the council as if it were a new application.

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Forms and checklists

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Case law

The following cases contain discussion on s92 matters. Note: All of these decisions were issued prior to the Resource Management (Simplifying and Streamlining) Act 2009 which, amongst other things made amended s92, s88C and s104. Therefore some aspects of these cases may no longer be entirely relevant:

Central Plains Water Trust v Ngāi Tahu Properties Limited [2008] NZCA 71 - this case is about two competing resource consent applications for taking water from the Waimakariri River. The questions of law are whether priority is given to that application which was ready first for notification, and whether a decision under s91 to defer notification pending application for additional consents meant that the application was not ready for notification until the additional consent applications were made. Both of these questions of law were answered in the affirmative.

Wakatu Inc v Tasman DC CIV-2007-442-205 (HC) -this case relates to competing applications for resource consent to take water and when sufficient information was available to make a decision on notification. The Court decided that the relevant test is "whether submitters had sufficient information to determine the effects on them" not "whether the application contained enough information to enable the assessment of effects on the environment".

Eastcote Developments (2005) Limited v Tauranga City CouncilA013/06 - although this case relates to an appeal under s358(1) against the Council's decision to dismiss an objection to a request for further information, it still has relevant information regarding councils jurisdiction for further information in relation to a restricted discretionary activity. The council sought further information relating to the potential effects on surrounding properties. The council contended that it was entitled to do so under s92, however the appellant argued that the request was outside Council's jurisdiction (restricted discretionary activity status applied). The Court found that the council had acted correctly and within its discretion; the appeal was dismissed.

Geotherm Group Ltd v Waikato Regional CouncilAP26/03 - in this case the appellant sought a ruling that priority should be accorded to whichever application was ready first for a hearing. The Court noted that until the time of notification the readiness of an application is in the hands of an applicant; however, after notification the need for further information may arise from a number of causes outside the control of the applicant. For this and other reasons the Court held that the application ready first for notification should have priority.

Upper Clutha Environmental Society Inc v Queenstown Lakes District CouncilC034/02 - the Court held that s93 does not require all relevant information to be supplied to the council before notification, only "adequate" information. Section 92 enables the council to require further information at any reasonable time before a hearing.

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Relevant publications

Getting in On the Act
Published by Ministry for the Environment June 2006 - updated June 2009
A short and, simple guide on how the RMA works and how it might affect users.

Auditing Assessments of Environmental Effects: A Good Practice Guide
Published by Ministry for the Environment - March 1999
This guide outlines good practice for regional and district councils in auditing assessments of environmental effects. The RMA requires each resource consent application to be accompanied by an assessment of environmental effects. Councils need this information to make informed decisions on granting resource consent and setting conditions to control potential effects.

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.

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Relevant websites

The following website may be of assistance and is relevant to this guidance note:

Environment Canterbury's website contains information for the applicant on applying for resource consent, the information that needs to be provided, and receipting applications. Go to Environment Canterbury's Forms and Booklets.

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Current challenges in practice

Getting information on Māori cultural values

Often it is difficult to know if a proposed activity will have an effect on Māori cultural values. If in doubt, contact the local tāngata whenua to discuss how the proposed activity may affect them or be of interest to them. Refer to the Facilitating consultation with tāngata whenua and Consultation for resource consents guidance notes.

If no consultation with tāngata whenua has been reported in the Assessment of Environmental Effects (AEE) and the activity is in an area, or may affect a resource of known importance to tāngata whenua, it may be appropriate to commission a cultural impact assessment. A CIA can identify likely effects of a proposal on Māori cultural values and interests. Early identification of potential effects can enable modification of the proposal to avoid potential effects and assist in identifying how the effects can be remedied or mitigated.

See Frequently asked questions about Cultural Impact Assessments (CIAs) for more information.

Deciding if specialist reports are required

It may be difficult to determine if an application warrants specific reports by someone with specialist expertise.

The RMA requires applicants to be advised in writing of the intention to commission a report and the reasons for it; their agreement to the report being commissioned is also required. If applicants do not agree to the report they run the risk that the consent may be notified and declined on the grounds of insufficient information.

Refer to What to do when the applicant refuses to provide information, does not meet time frames, or refuses for a report to be commissioned for more information.

It may be helpful to provide an estimate of the likely costs of an expert report. Some cases may warrant the costs to be shared between the applicant and the council if the information would also benefit the council for its own purposes. An example could be a traffic study of a particular intersection which would also benefit the council.

External reports should only be commissioned when the matter is critical to determining the application and where the consequences of not obtaining accurate information may be significant (for example, traffic safety, cultural impacts). Use external reports for peer review only when some independent form of verification is needed.

Keeping to time frames

During heavy workload periods, it can be difficult to keep to the time frames set down in the RMA. Consequently, further information may be requested some way through the process whereas ideally such requests should be made nearer to the time the application is lodged where possible.

As there are now limits to when a further information request will put the processing clock on hold, a council should make a maximum of one request in association with non-notified applications or two maximum with respect to notified applications. Before an initial request is made, a site visit should be undertaken and the application should be circulated internally to the appropriate specialists (eg. engineers). This should ensure the written request covers all the information needed to enable the proposal to be determined and for complex applications, to enable a notification decision to be made. It is only when new matters are raised in submissions that a second further request should be made.

Any additional s92 request(s) will not stop the clock and a council is required to continue to process the application as far as practicable whilst waiting for the further information to be received. In this instance communication with the applicant becomes critical to facilitate provision of the required information.

The way in which further information is requested

In times of heavy workload, the need to request further information in writing may be overlooked with people relying on phoning the applicant with a request. Section 92 specifically requires further information requests to be made in writing, which avoids misunderstandings occurring.

Providing a written request allows for a record of what was actually required, and on what date, for tracking and recording key time frames. A written request also ensures that the applicant is formally advised of the application being put on hold and their options for responding.

The further information request should be e-mailed or faxed to avoid delays to the applicant.

Timing of site visit

A site visit should be undertaken in advance of a s92 request being prepared to ensure the nature of an application, its effects, and who may be adversely affected is understood. A site visit carried out before the initial s92 request is a critical step in scoping the effects that might occur and need to be considered to determine the application and is likely to avoid the need for any further s92 request.

For example, a site visit may highlight some issues about the proposal that may have been unidentified in the application. Always contact the applicant before a site visit to ensure access and to find out about potential on-site hazards.

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This guidance note was updated in October 2009 by Jerome Wyeth of Hill Young Cooper Ltd, Greg Lee of Beca and MfE.