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Notices of requirement and outline plans

Abstract

This note provides guidance on the notice of requirement process for including designations in operative and proposed district plans.  It also provides guidance on the outline plan process for implementing and altering designations. 

To designate land a requiring authority must serve a notice of requirement. The notice of requirement is an interim notice that protects land for the designated purpose until the designation is confirmed. 

An outline plan is a plan or description of works that a requiring authority proposes to carry out works on a designated site.  The outline plan often contains more detailed information that was not available when the notice of requirement was prepared.

Refer to the Designations and requirements in proposed district plans guidance note for guidance on how designations are included as part of the plan review and development process.

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Guidance note

What is a designation?

A designation is a planning technique used by Ministers of the Crown, local authorities and network utility operators approved as requiring authorities under s167 of the RMA.  Only requiring authorities can seek designations for land.  Historically, designations enabled central and local government to get planning authorisation for public works and protected land for future public works.  They were often used in providing for land transport, and telecommunications and electricity transmission networks.  Designations have a number of advantages, including providing for activities that might otherwise be difficult to comprehensively provide for in a district plan.

A designation is a form of ‘spot zoning’ over a site, area or route in a district plan.  The ‘spot zoning’ authorises the requiring authority’s work and activity on the site, area or route without the need for land use consent from the relevant territorial authority (s9(3) of the RMA does not apply).  A designation has a similar effect to a plan change which establishes a permitted activity as it:

The designated area is still subject to any restrictions on land use under s9 (excluding subsection (3)) and in relation to air, water, and the coastal marine area as contained in ss12 – 15 of the RMA. 

A designation restricts anyone other than the requiring authority from carrying out work on the designated land that will prevent or hinder the project or work to which the designation relates, without first obtaining the requiring authority’s permission.  When there is more than one designation on a site, the requiring authority responsible for the later designation must first obtain the written consent of the requiring authority responsible for the earlier designation before undertaking a project or work.

Existing use rights may apply when a designation is removed.

Designations apply to district plans and proposed district plans only.  Relevant regional council resource consents may also be needed in relation to a project or work.  The ‘underlying zone’ of the district plan remains over the site and applies to any other activities undertaken on the land that are for a purpose other than the designation purpose (or activities undertaken by a party other than the requiring authority) under s176 of the RMA.  Therefore, any activity or works outside the scope of a designation may require resource consent unless the activity or works are a permitted activity within the underlying zone.  

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Requiring authorities

‘Requiring authority’ is defined in s166 of the RMA. It includes a Minister of the Crown, a local authority, or a network utility operator approved as a requiring authority under s167 of the RMA.

Specific procedural requirements are set out under s167 of the RMA for a network utility operator to become a requiring authority. The Minister for the Environment needs to approve an application to become a requiring authority. In addition, Section 420 of the RMA provides for certain persons or organisations to be requiring authorities where designations were included in transitional plans that are not yet operative. 

The requiring authority may do anything that is in accordance with the designation, and the usual provisions of the district plan do not apply to activities that fall within the scope of the designation on the designated land. In certain circumstances, the Minister can revoke requiring authority status (s167(5)).    

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Notices of requirement and outline plans

To begin the process of designating land, a requiring authority must serve a NOR on the relevant territorial authority (s168 of the RMA) or lodge it with the Environmental Protection Authority (EPA) (s145(3)).  A notice of requirement is a proposal for a designation. 

The notice of requirement has an interim effect, in that it protects the land for the designated purpose until the designation is confirmed and included in an operative district plan.  If the designation is confirmed it overrides the provisions of the district plan so the project or the works may be implemented in accordance with that designation and any conditions attached to it.  However, plan provisions continue to apply if the land is used for a purpose other than the designated purpose.

Part 8 requires the territorial authority to consider the requirement and any submissions received (if the requirement was notified), and then make a recommendation to the requiring authority.

Note that the territorial authority is only able to make a recommendation to the requiring authority.  The requiring authority has the final decision on the matter. Refer to the flowchart for including a new designation into an operative plan (PDF, 72 KB).

There is an alternative process available under Part 6AA of the RMA for notices of requirement that are for proposals of national significance. 

Sections 198A – 198M of the RMA also provide for the direct referral of notices of requirement to the Environment Court for a decision.  The direct referral provisions under the RMA allow for requiring authorities to request that notified notices of requirement be directly referred to the Environment Court for a decision, instead of a recommendation by a territorial authority and a decision by a requiring authority.  Refer to the Direct referral guidance note for further guidance on the process.

The designation provides for the long-term ‘approval’ of the work. Because details of the work may not be known at the time of lodging the notice of requirement, section 176A of the RMA provides for further detail or subsequent changes and updates to the work through the submission of an outline plan. An outline plan is required to be submitted to the territorial authority, showing details of the work or project to be constructed on the designated land. As for the notice of requirement process, the territorial authority only has a recommendation role for outline plans. The territorial authority is only able to request changes of the requiring authority and cannot turn down an outline plan. 

A notice of requirement and an outline plan describing the works proposed can be served / submitted at the same time. This approach can sometimes be helpful to allow the territorial authority to understand the designation, and can speed up the overall process allowing works to begin sooner. Alternatively, the requirement for an outline plan can be waived by the territorial authority if sufficient information was submitted with the notice of requirement.

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Designations versus resource consents and plan changes

Designations generally provide for longer-term and more flexible protection than a resource consent or plan change.  A designation cannot be altered by anyone else, unlike provisions of a plan (anyone is able to apply for a plan change), and the outline plan process allows for greater flexibility into the future than a granted resource consent does.

Designations are also a way of providing for projects or works that might be difficult to comprehensively provide for in a district plan or through the resource consent process.  Many large scale activities, network utilities or public works may be contrary to the objectives and policies of the plan, or may not comply with the tests of s104D relating to resource consents for non-complying activities. In addition, decisions on designations and outline plans are made by the requiring authority (except in the case of a notice of requirement lodged with the EPA or one which is directly referred to the Environment Court for a decision), rather than the territorial authority (as is the case for plan changes and resource consents), providing long-term certainty for requiring authorities.  

Designations can be used to:

A designation, and the notice of requirement that precedes it, also:

Designations override all provisions of the district plan in order to provide for works, projects and network operations, by recognising that they:

The plan change process could also be used to authorise the project or work.  However, the plan change process is lengthier, with greater uncertainty as to the final result.  There would always be a risk of subsequent plan changes as anyone can apply for a plan change, therefore providing a less reliable outcome for the requiring authority.

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Land ownership and the Public Works Act 1981

A requiring authority is not required to own the land before lodging a notice of requirement for a designation over it.  In some cases it may be very difficult and take a lengthy period of time to obtain ownership of all land required. For example, large network projects such as transmission lines and roading alignments.  However, it is more likely that a requiring authority will own the land for site specific works, before designation (for example, school sites).  As an alternative to owning land, easements can be created where the land owner agrees.

Section 186 of the RMA allows a network utility operator that is a requiring authority to apply to compulsorily acquire land for a project or work from its owners under the Public Works Act 1981 (PWA). The PWA directly applies to the Crown and local authorities.  It should be emphasised that requiring authorities often prefer to negotiate property acquisition rather than use their compulsory acquisition powers.

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Establishing new designations

Once served, the process of a notice of requirement follows a similar path to that required for resource consents, including:

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Preparing a notice of requirement

Section 168 of the RMA provides for a requiring authority to give notice to the relevant territorial authority of its requirement for a designation.  Under section 168A, a territorial authority may give notice of a requirement for a designation for works it wants to undertake within its own district.

Form 18 of the Resource Management Forms, Fees and Procedure Regulations 2003, prescribes the content of a notice of requirement under ss168 and 168A of the RMA, and includes the following information:

When preparing a notice of requirement, the requiring authority should address all matters in ss168A and 171 of the RMA that the territorial authority is required to consider when making a recommendation to ensure the matters have been adequately included from the outset.  Form 18 relating to a notice of requirement does not strictly require an assessment of environmental effects in accordance with the Fourth Schedule but this is common practice.  If an AEE is included, it should also provide information to address the matters under ss168A and 171. 

Although Form 18 requires the inclusion of details of any consultation undertaken, and although generally accepted as good practice, the requiring authority has no duty to consult (s36A).  See the Consultation for resource consents guidance note for more information.  The first opportunity for public comment is if the notice of requirement is notified by the territorial authority. 

A meeting between the territorial authority (or the Environmental Protection Authority) and the requiring authority at the pre-lodgement phase can assist to:

It is also useful to provide the required information in electronic format which is compatible with council software, particularly for maps of the designated land.  This makes incorporating designation boundaries into planning maps much easier.  It also assists understanding of the notice of requirement when it is publicly notified.

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Processing a notice of requirement

Generally, processing a notice of requirement is similar to processing a resource consent application. 

Where a territorial authority serves a notice of requirement on itself, generally an operational section of a council (acting as the requiring authority) would give notice to the planning section (as territorial authority).  As notices of requirement involve modifications to the district plan, the ‘policy planners’ should be involved in it’s processing.  It may be appropriate for independent consultants to process a council-initiated notice of requirement.

A territorial authority should follow these steps on receipt of a notice of requirement:

  1. Check the status of the requiring authority against the definition in the RMA (s166). If the requiring authority is a network utility operator, there will be a Gazette notice approving it as a requiring authority.  The Ministry for the Environment also holds a list of current requiring authorities.  It is common practice for network utility operators to provide a copy of the relevant gazette notice with the notice of requirement.  However, if necessary, seek clarification from the requiring authority that they are an approved requiring authority, and are financially responsible for that designation (required for Ministers or local authorities to issue notices of requirement – see s168(1) of the RMA).
  2. Check the notice of requirement includes sufficient information to enable the territorial authority and potential submitters to understand the proposal and be able to ascertain the effects that the proposed work or activity will have on the environment and whether it may impact on them or their land.
  3. Send a letter to the requiring authority acknowledging receipt of the notice of requirement.

A territorial authority (or the EPA) can request further information under s92 of the RMA and may delay processing until the information is received (apart from in respect of s168A applications).  Sometimes, to expedite the process, the territorial authority and requiring authority may agree a programme for the delivery of further information; especially in respect of what information is needed before notification and what might be needed before a hearing.  See the Requesting further information guidance note for more information.

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Notification and submissions

A territorial authority (or the EPA) must decide whether to notify the notice of requirement under ss95A to 95F.  Time limits for notification (s95) do not apply if a notice of requirement is by a territorial authority to the same authority (s168A application).  See ‘To notify or not to notify? That is the question!’  Alternatively, s170 provides territorial authorities with the ability to include a notice of requirement within its proposed plan provided that this is done within 40 working days of receipt of the notice of requirement.

Where public notification does take place, the procedures for a notice of requirement are the same as for a resource consent under ss96 to 103 of the RMA, including requiring that notice is served on every person prescribed in Regulation 10 of the Resource Management (Forms, Fees and Procedures) Regulations 2003.  As with a resource consent application, notification must be given in accordance with ss95A to 95F. 

The details of the public notices differ depending on the type of requiring authority: 

As with notified resource consents, the closing date for serving submissions on the territorial authority is the 20th working day after public notification, in accordance with s97 of the RMA.  Submitters are required to serve a copy of their submission on both the territorial authority and the requiring authority (including the operational arm of the council if the territorial authority is the requiring authority).  The territorial authority is also required to send a list of all submissions received to the requiring authority.

Given the notice of requirement process is similar to a notified resource consent and results in an amendment to the district plan, it is best practice for an application to be dealt with jointly between resource consent and policy planners, with the resource consent planner taking the lead role.

See the Notified and limited notified resource consent applications guidance note for more information on the notification and submission process.

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Pre-hearing meetings

While not mandatory, a pre-hearing meeting can be useful to clarify and resolve as many issues as possible before a hearing.  This can be formally or informally arranged.

It provides an opportunity to outline the notice of requirement process and decision-making powers to submitters, provide details of the proposed works, and explain how the process differs from the resource consent process, and clarify any submissions received.

See Pre-Hearing meetings in the Notified and Limited Notified Resource Consent Applications guidance note for more information on pre-hearing meetings.

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Hearings

As with any notified resource consent application, a territorial authority is not required to hold a hearing unless the territorial authority considers that a hearing is necessary or either the requiring authority or a submitter requests a hearing.  A territorial authority should consider appointing an independent commissioner or commissioners to sit on the hearing panel, especially when it is making a decision on its own notice of requirement or making a recommendation on a notice of requirement that is particularly controversial.  Section 100A allows a requiring authority or a submitter to request a hearing by an independent commissioner.  Further information is contained in the Use of commissioners guidance note. 

All the powers and duties in relation to hearings contained in ss39 – 42A of the RMA apply to hearings for notices of requirement.  Section 103A which provides time limits for completion of adjourned hearings does not apply.

If the requiring authority also requires resource consents from the regional council, a joint hearing can be held.  However, a territorial authority cannot delay the processing of a notice of requirement while waiting for the outcome of any resource consent applications.

For more information on the hearings process, see the:

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Recommendations and decisions

Under s171 of the RMA a territorial authority can only make a recommendation on a s168 notice of requirement (where the notice of requirement is not council initiated) to a requiring authority to:

Where a territorial authority serves a notice of requirement on itself (s168A) the territorial authority decides on the application, on the basis listed above (as the territorial authority is also the requiring authority in this case). 

When making the recommendation (or a decision in the case of s168A notices of requirement), a territorial authority must have regard to matters listed in s171(1) (for s168 notices of requirement) and s168A(3) (for s168A notices of requirement).  Unlike resource consents, a territorial authority is not specifically required to consider the matters in s104 of the RMA.

Territorial authority recommendation

Section 171 of the RMA sets out what a territorial authority must and must not have regard to when considering a requirement and any submissions, and making a recommendation on the requirement.

Section 171(1A) requires territorial authorities to not have regard to trade competition or the effects of trade competition.

Section 171(1) requires the territorial authority to, subject to Part 2, consider the effects on the environment of allowing the requirement, having particular regard to:

  1. any relevant provisions of a national policy statement, the New Zealand Coastal Policy Statement, a regional policy statement or proposed regional policy statement and a plan or proposed plan. 
  2. whether adequate consideration has been given to alternative sites, routes, or  methods of undertaking the work if the requiring authority does not have an interest in the land (ie, does not own or lease the land) or it is likely that the work will have a significant adverse effect on the environment. 
  3. whether the work or designation is reasonably necessary for achieving the objectives of the requiring authority for which the designation is sought. 
  4. any other matter it considers necessary to make a recommendation on the requirement.

Territorial authorities also need to carefully consider the wording of the recommendation and any recommendation on a notice of requirement must be accompanied by reasons for that recommendation (s171(3)).

Territorial authorities must also take national environmental standards into account when making a decision on a notice of requirement.  Section 43D(4) states that national environmental standards prevail over a designation where the standard exists before the designation is made.

Requiring authority decision

Within 30 working days of receiving the territorial authority’s recommendation, the requiring authority must advise the territorial authority of whether it accepts or rejects the recommendation, in whole or in part. The requiring authority can only modify a requirement if the territorial authority has recommended the modification, or if the modification is not inconsistent with the notice of requirement as notified. 

If the requiring authority rejects the territorial authority’s recommendation in whole or in part, or modifies the requirement, the requiring authority must give reasons for its decision and must advise the territorial authority of its decision. 

Notification of decision

When a territorial authority has received the decision of a requiring authority, or made a decision on its own notice of requirement, it must notify the decision as follows:

Alternatively, the territorial authority can give notice summarising a decision (for example if the decision is lengthy) and state where copies of the decision are available for inspection (electronically or physically).  The decision should be provided within three working days of receipt of a request for provision of a copy.

The notice must include a statement of the time (15 working days after the date on which the notice of the decision is given) within which an appeal against the decision may be lodged.

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Appeals

The territorial authority or any submitter may lodge an appeal of the requiring authority’s decision to the Environment Court (s174).  Lodging of such an appeal must be done within 15 working days of the territorial authority notifying the decision.

Practice has shown that good relationships between territorial authorities and requiring authorities are key to reducing misunderstandings and the potential for appeals. Discussions between territorial authorities and requiring authorities, and/or with submitters, following release of the territorial authority’s recommendation are beneficial.  

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Conditions on designations

The territorial authority can recommend that conditions be imposed on a designation, where it considers that conditions are necessary (or impose conditions where it is both the requiring authority and ‘recommending authority’).  Conditions provide clarity and certainty in setting the parameters within which a designation may give effect to the public work or project to which it relates.  If accepted by the requiring authority, conditions become an integral part of the designation and cannot be severed from it.  Where conditions are attached to a designation, it is appropriate that those specific conditions are listed in the relevant plan, alongside the designation reference.

When recommending a condition, the territorial authority should have regard to the potential effect of the condition on the designation’s future operation.  There is no restriction on the type of conditions that can be imposed on a designation, unlike the restrictions placed on resource consent conditions in s108 of the RMA.  However, placing conditions on a designation that cannot be met and require a (land use) consent can thwart the intent of the designation process (and are therefore unlikely to be accepted by the requiring authority).

For more detailed information, including case law, see Conditions on designations.

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Updating the plan

Once the time for appealing a requiring authority’s decision has passed without appeal, or any appeal has been withdrawn by the territorial authority, or dismissed or resolved by the Environment Court, a territorial authority must update its district plan to include the designation.  The district plan must specify the name of the requiring authority which has the benefit of the designation.  This is usually included in the schedule of designations as an appendix to the plan.  Territorial authorities need to look at the form of inclusion of the designation in the planning documents, assessing the risks and benefits of including the designation in appendices and making references to old plan documents, to keep all documents up to date.

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Altering an existing designation

A requiring authority can serve a notice of requirement on a territorial authority to alter an existing designation in an operative plan.  Section 181 of the RMA sets out the process for altering a designation and/or its conditions.  The alteration may be to the physical boundaries of the designation, the scope/purpose of the designation, or the conditions on the designation.  Refer to the flowchart setting out the steps in altering an existing designation (PDF, 30 KB).

When altering a designation, consideration must also be given to relevant national environmental standards, pursuant to s43D. 

The process for altering a designation involves:

  1. The requiring authority, responsible for a designation, giving notice to the relevant territorial authority of its requirement to alter the designation together with the required fee and information contained within Form 18. It is important to note that some designations may extend over different territorial authority jurisdictions and or district plans and a notice of requirement for each district plan is required. 
  2. The territorial authority acknowledging the application and checking that the designation has not lapsed.

Generally, a notice of requirement altering a designation is treated in the same way as a notice of requirement served under ss168 or 168A.  That is, the territorial authority is able to request further information, must make a decision on notification, and can only make recommendations to the requiring authority.  However, s181(3) provides an exception to this standard process. A territorial authority may, at any time, alter a designation in its district plan or a requirement in a proposed plan if:

If any of the above requirements are not met, then the standard process for new designations must be followed.     

As with new notices of requirement, once the designation has been altered, the district plan or proposed district plan must be amended to reflect the changes.

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Transferring designations

Section 180 of the RMA provides for a requiring authority to transfer the rights and responsibilities for designations to another requiring authority , where the financial responsibility for a project or work or network utility operation has transferred from one requiring authority to another, the responsibility for any designations is also transferred. 

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Removal of designations

Section 182 provides for a requiring authority, including a territorial authority as a requiring authority, to initiate the removal of a designation from a district plan.  For more information on this process, see Process for removing designations. 

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Timing of designations

A designation that has not been ‘given effect to’ lapses five years after the date it is included in the district plan, unless the lapsing period has been extended.  A requiring authority can apply to the territorial authority to extend the lapsing period under certain conditions.

Once given effect to, a designation remains until the requiring authority removes or alters the designation. A designation can also be rolled over into a new district plan.  If an existing designation is not ‘rolled over ’ into a new district plan it continues to have effect until the proposed district plan is made operative.

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Effect of a notice of requirement

Under s178, a notice of requirement has an interim effect of protecting the land for the purposes of the designation, the public work or project, from the time that a requiring authority gives notice to a territorial authority under s168, or the date a territorial authority resolves to publicly notify its own requirement under s168A.  However, the work or project cannot be given effect to or implemented until after the designation is confirmed and included in an operative plan.    

The interim effect of a requirement ends on the earliest of the following days:

During this interim period, the land is protected from other activities that may hinder or prevent the works intended under the designation, unless prior consent for the works is obtained from the requiring authority.  It is an offence to undertake work within the proposed designation that would prevent or hinder the use of the land for the designated purpose without the written approval of the requiring authority, unless the person knew or could reasonably have been expected to have known of the existence of the notice of requirement.

Best practice is that the requiring authority should liaise with affected land owners at an early stage.

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Outline plans

The designation provides the ‘approval’ for the work or the project, but often the details of the project or work are not available at the time of the notice of requirement.  For instance, many projects take several years before construction begins due to funding procedures or land acquisition processes.  Designations are intended as a long-term planning tool.  The outline plan stage allows details of the project or work to be provided to the territorial authority at a later stage, rather than with the notice of requirement. 

Where considered necessary, the territorial authority can request the requiring authority make changes to the outline plan.  When requesting changes the territorial authority cannot exceed the scope of the confirmed designation and the designation itself cannot be revisited.

Section 176A(3) requires that an outline plan must show:

  1. the height, shape, and bulk of the public work, project, or work; and
  2. the location on the site of the public work, project or work; and
  3. the likely finished contour of the site; and
  4. the vehicular access, circulation, and the provision for parking; and
  5. the landscaping proposed; and
  6. any other matters to avoid, remedy, or mitigate any adverse effects on the environment.

Subsection (f) provides for a territorial authority to consider other unspecified matters such as noise, dust, lighting, glare and odour as necessary.  These ‘other matters’ will be limited if the requiring authority provided details on mitigation of effects as part of the notice of requirement, or relevant conditions were imposed on the notice of requirement.  Mitigation measures should not frustrate the reasonable implementation of the proposed works (the requiring authority is likely to reject any such conditions).

When preparing an outline plan, a requiring authority should also consider:

An emerging approach to effective use of the outline plan stage is an ‘effects envelope’ approach – see Envelope effects approach to notices of requirement and outline plans. 

Territorial authorities should encourage requiring authorities to consult closely with them in preparation of outline plans, including providing drafts of a proposed outline plan for a significant development for comment.  From a territorial authority perspective, the time allowed for processing outline plans (20 working days) is very short, particularly for assessing what can be a highly complex, technical document.  From a requiring authority perspective, the potential for a territorial authority to appeal a requiring authority’s refusal to make changes to an outline plan provides a significant incentive to ‘get it right first time’.

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Waiver of outline plans

An outline plan is not always necessary for works within a designation.  Under s176A(2) an outline plan is not necessary if:

  1. the proposed public work, project, or work has been otherwise approved under the RMA, or
  2. the details of the proposed public work, project or work, are already incorporated into the designation, or
  3. the territorial authority waives the requirement for an outline plan.

While there are no criteria within s176A(2)(c) for determining whether to waive the need for an outline plan, a territorial authority should consider:

Compliance with the performance standards of the underlying zone was a relevant consideration in Queenstown Lakes District Council v Telecom New Zealand Ltd [2001] C117/01).

Where a territorial authority determines that it is appropriate to waive the requirement for an outline plan, it should advise the requiring authority in writing.  See Porirua City Council’s (PDF, 81 KB) best practice example of an outline plan waiver. 

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Processing an outline plan

On receipt of an outline plan, a territorial authority should check:

A territorial authority has 20 working days to assess an outline plan and to make any requests for changes.  If no changes are requested within 20 working days, the requiring authority can legally start work. 

Unlike a notice of requirement, the resource consent processes in Part 6 of the RMA do not apply to outline plans.  In particular, a territorial authority:

The only parties legally involved in the outline plan process are the requiring authority and the territorial authority.

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Requesting changes to outline plans

Where a territorial authority is proposing to request changes to an outline plan, it is good practice to discuss these changes with the requiring authority as soon as practical within the 20 working day period.  This provides an opportunity for the requiring authority to comment informally on the proposed changes, before they are issued as a formal request for change. This process may minimise the risk of the requiring authority rejecting the territorial authority’s requested changes and any potential appeals by the territorial authority to the Environment Court.

Where the territorial authority does request changes, it is good practice for such requests to be made in writing and be supported by clear reasons; for example, the territorial authority could include a copy of any relevant report that sets out the evaluation of the outline plan.

The requiring authority then decides whether to accept or reject the changes requested by the territorial authority and advises the territorial authority of its decision.   There is no specified timeframe for the requiring authority to make its decision. 

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Accepting an outline plan without changes

Even when a territorial authority does not wish to request changes to an outline plan, it should advise the requiring authority in writing of this, and that the outline plan is accepted.   See for example Hutt City Council’s letter advising the requiring authority that the Council requests no changes to the submitted outline plan. 

A territorial authority could also include a copy of its assessment report with the letter advising that the outline plan has been accepted without changes. 

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Appeals on outline plans

If the requiring authority rejects a territorial authority request for changes, the territorial authority can appeal the requiring authority’s decision to the Environment Court within 15 working days of being notified of the requiring authority’s decision (s176A).  When considering such an appeal, s176A(5) of the RMA states that the Environment Court must consider whether the changes requested by the territorial authority will give effect to the purpose of the Act. 

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Enforcement

The general duty under s17 to avoid, remedy or mitigate any adverse effects on the environment applies to any activity carried out by or on behalf of a requiring authority under a designation.  Section 322 of the RMA provides for an enforcement officer to serve an abatement notice on persons who undertake unauthorised works on designated land.  Alternatively, under s316 of the RMA any person may apply to the Environment Court for an enforcement order to be made against persons who are undertaking unauthorised works on designated land.  See RMA enforcement manual. 

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Best practice examples

Waiver of outline plan requirements

Porirua City Council uses a standard letter to send to a requiring authority in response to a request to waive an outline plan, when it has decided to grant the waiver.  The letter clearly states that the Council has determined that it would be appropriate to waive the requirement for an outline plan and sets out the reasons for the waiver.  

Officer report on a notice of requirement

Rodney District Council’s report on a notice of requirement provides an example of the assessment of a notice of requirement.  It recommends that the notice of requirement be modified and made subject to conditions.  The recommended modifications are specified and reasons are set out for the recommendation. 

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RMA provisions

The following sections of the RMA have relevance to notices of requirement and outline plans.  For more detail on these sections click on the following link:

Part 8 Designations and heritage orders:

Section 166 – Meaning of ‘designation’, ‘network utility operator’ and ‘requiring authority’
Section 167 – Application to become requiring authority
Section 168 – Notice of requirement to territorial authority
Section 168A – Notice of requirement by territorial authority
Section 169 – Further information, public notification, submissions and hearing
Section 171 – Recommendation by territorial authority
Section 172 – Decision by requiring authority
Section 173 – Notification of decision on designation
Section 174 – Appeals
Section 175 – Designations to be provided for in district plan
Section 176 – Effect of designation
Section 176A – Outline plan
Section 178 – Interim effect of requirement
Section 179 – Appeals relating to sections 176 –178
Section 180 – Transfer of rights and responsibilities for designations
Section 181 – Alteration of designation
Section 182 – Removal of designation
Section 184 – Lapsing of designations which have not been given effect to
Section 184A – Lapsing of designations of territory authority in its own district
Sections 198A – 198M – Streamlining decision-making on designations and heritage orders.

Part 8 includes cross-references to the following sections within Part 6 Resource consents:

Sections 92, 92A, 95B – Further information provisions
Sections 95, 95A to 95F – Notification provisions
Sections 96 to 98 – Provisions relating to submissions
Sections 99 to 103A – Provisions relating to pre-hearing and hearing processes.

Other relevant provisions:

Part 6AA – Matters of national significance
Section 37, 37A – Extension and waiver of time limits
Section 43D – Relationship between national environmental standards and designations
Sections 314 – 321 – Enforcement orders
Section 420 –Transitional provision for designations. 

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Relevant case law

The following cases contain discussion on designation matters which are applicable to works on a designated site and the outline plan process:

Auckland Regional Council v Transit New Zealand [2007] A043/07) This was an appeal relating to decisions by Transit NZ as a requiring authority, in connection with its proposed alteration of the existing motorway designation in the Auckland City District Plan Isthmus Section, to allow for significant construction, and subsequent operation and maintenance of the Newmarket Viaduct and related infrastructure. The appeal concerned the interrelationship of the proposed new viaduct and related infrastructure, with the protection of volcanic view shafts as identified in the Auckland Regional Policy Statement.  The parties subsequently reached agreement and proposed certain amendments to the proposed designation conditions.

Minhinnick, Nganeko v Minister of Corrections [2004] A043/04, Horahora Marae v Minister of Corrections [2004] A085/04) This was an appeal against a decision of the Minister of Corrections requiring the Manukau City Council to designate land for the Auckland Regional Women’s Corrections facility.  The Appeal related to a number of matters including the site selection process.  The decision stated that, under section 171(1)(b), ‘the Court is required to have regard to whether adequate consideration has been given to alternative sites’ and that it must consider ‘whether the requiring authority has acted arbitrarily, or given only cursory consideration to alternatives’ (citing the case Transit New Zealand v Auckland Regional Council A100/00).  The decision also states that the Court does not have to assess the merits of each alternative and make a choice as to the preferable alternative or to test each alternative against Part II of the RMA (citing the case Auckland Volcanic Cones Society v Transit New Zealand [2003] NZRMA 316).  In this case, the Court found that adequate consideration was given to alternative sites and that it would be unreasonable to expect the requiring authority to use an alternative site, route or method. 

Queenstown Lakes District Council v Telecom New Zealand Ltd [2001] C117/01)  The Environment Court determined that it is appropriate to waive the outline plan requirements when the proposed works are a permitted activity under the underlying zone provisions.  This case also determined that where the proposal is not a permitted activity, an outline plan is to be submitted in accordance with s176A.

Dunedin City Council v Airways Corporation of New Zealand Ltd [2000] C210/00) In this case, the Council sought to modify the conditions attached to various designations throughout the district permitting land use for airways installations.  The Airways Corporation rejected some of the conditions which the Council recommended.  The Corporation’s designation requirements were for a number of sites in the vicinity of the Dunedin Airport.  Each of these sites had a range of structures located on them for navigation purposes.  Agreement was reached that the height, bulk and location of the structures would not be prescribed by conditions but could be dealt with through the outline plan process.  This allowed the Council to consider the structures on a case-by-case basis, rather than placing blanket provisions over the details of the structures.  The Court considered this was the best approach to balance the various interests and statutory provisions available.

Watercare Services v Minhinnick [1998] 1NZLR294; [1998] NZRMA 113
The Court held that those acting in accordance with a designation are not exempt from enforcement action.

The following cases provide guidance on the meaning of the terms ‘designation’, ‘designation notation’, and ‘designated purpose’:

Ngataringa Bay 2000 Inc v Minister of Defence and North Shore City Council ((3) (1992) 2 NZRMA 318, Planning Tribunal).In this case, the designation was simply for ‘defence purposes’ and the question was whether a replacement Navy Damage Control School for training service personnel was authorised by the designation.  The Tribunal stated that “the scope of the designation is to be defined by what an ordinary reasonable member of the public, examining the scheme, would have taken from the designation”. In the Tribunal’s opinion “a thoughtful member of the public, considering the designation Defence Purposes in the context of the document listing the range of activities given in that paragraph (including Naval training), might reasonably expect that it would include a facility for training Naval personnel in damage control on ships”.  The tribunal therefore held that the activity is in accordance with the designation.The Tribunal also decided that an explanatory statement to the designation was not a part of the designation, and did not restrict the buildings and facilities that could be undertaken.

Olsen v Minister of Social Welfare (W32/95, Planning Tribunal). Regarding the Epuni Boys’ Home in Lower Hutt, the Tribunal stated that “The legislation requires the authority responsible for the designation and/or requirement to use words which indicate to the average member of the public the nature of the activity upon site”. The Tribunal concluded that the description ‘boys’ home’ was seen as misleading and intended to ‘pacify’ the public.

Marlborough District Council v Regal Salmon Limited (W117/95, Planning Tribunal). This case determined that the section 184A lapsing provisions did not apply to designations in transitional district plans. 

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Related guidance notes

The following guidance notes are related:

Resource consent conditions
Designations and requirements in proposed district plans
To notify or not to notify? That is the question!
Notified and limited notified resource consent applications
Requesting further information
Use of commissioners
Direct referral 

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Relevant publications

The Designation Process
Ministry for the Environment
Date: June 2006
This guide is part of the Everyday Guide to the Resource Management Act series.  It provides information for people whose land may be affected by a designation and want to know how they can be involved in the process. 

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Challenges in practice

Conditions on designations

All conditions should be carefully written to ensure they are clear.  Any conditions on a designation should be included in the designation schedule of the district plan to ensure they are accessible and easy to refer to.

Another challenge is to ensure that conditions on notices of requirement are at an appropriate level to control effects, particularly for proposed works that have not been designed in detail.

Conditions on designations which have been rolled over from previous plans can become dated and difficult to implement.  Many historic designations do not have conditions at all, which creates a whole set of issues and potential conflicts. 

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Outline plans

There is often confusion about the differences between notices of requirement and outline plans.  A notice of requirement and the subsequent designation are a long-term planning tool, providing a general approval and protection of a site into the future, and the outline plan is the later stage of the approval that provides the detail of the project. As another example, territorial authorities may try to impose conditions on an outline plan, rather than request changes to it. 

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The use of designations to serve future developments 

There are a number of challenges involved with designations for works that are not proposed to be given effect for many years.  For example, some territorial authorities use designations (as the requiring authority) for road widening and public utilities infrastructure to serve future greenfield urban development with 10–20 year timeframes.  Such designations may not be given effect until many years in the future.

Section 171 of the RMA requires the territorial authority to, subject to Part 2 of the RMA, consider the effects of the environment of allowing the requirement. There is some uncertainty as to what level of detail is required when assessing the environmental effects on individual land owners, particularly as the majority of the works are permitted land-use activities.  It is considered that affected land owners should be given as much detail as possible about the extent and effects of the proposal to lessen uncertainty.  Requiring authorities should also take a proactive approach to consulting with land owners regarding compensation for loss of land under the Public Works Act.

If a designated project or work has a 10–20 year timeframe, any agreed mitigation measures are likely to face challenges over what certainty there is that they will still be applicable or relevant in 10–20 years time and how any changes to the mitigation measures will be managed in the future. This includes whether this would trigger a requirement to alter the designation. 

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Consideration of alternative sites, routes or methods of undertaking the work (168A(3)(b) and s171(b))

In assessing a notice of requirement, both section 168A(3)(b) and section 171(1)(b) of the RMA requires the territorial authority, when considering the effects on the environment of allowing the requirement, to have regard to whether adequate consideration has been given to alternative sites, routes or methods of undertaking the project or work. However, this consideration is not needed if the requiring authority has an interest in the land sufficient for undertaking the work and it is likely the project or work will not have a significant adverse effect on the environment.

There is some uncertainty as to what level of analysis of alternatives is required for a notice of requirement, and how a territorial authority should determine whether “adequate consideration” has been undertaken by the requiring authority. Some form of consideration of alternatives needs to be included within a notice of requirement to allow the territorial authority to undertake this assessment. The generally accepted approach is to consider the robustness of the evaluation to ensure that it is not cursory or arbitrary and that the evaluation has adequately addressed the relevant matters in Part 2 RMA. In some cases, s168A(3)(b) and s171(1)(b) have been interpreted as requiring a comprehensive analysis of alternatives to be considered for every notice of requirement, even though this is not expressly required by the Act. 

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Acknowledgements and editorial comments

This guidance note was prepared by Gen Hewett and reviewed by Andrew Guerin and Sylvia Allan of MWH New Zealand Ltd, and Vicki Barker of the Ministry for the Environment.  

The Ministry for the Environment would also like to thank the following people involved in the peer review of this material: