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Historical use of designations

Historically, designations served two purposes.

Firstly, they enabled central and local government to get planning authorisation for public works.

For central government, these works included projects in the fields of:

For local government, works were usually for utility services, such as water services and sewerage schemes. However, local authorities also often designated their own roads and other assets, including gravel quarries, cemeteries and domains.

Secondly, designations protected land for a given future activity. It was quite common to see proposed designations for activities such as ‘proposed intermediate school’, ‘proposed motorway’, and ‘proposed telephone exchange’. The proposed designations prevented any incompatible land use on the land until the work was ready to start, and often provided a basis for acquiring land. Property acquisition could be compulsorily undertaken when the work was deemed to be an ‘essential work’.

Most of these works were proposed during the 1970s, at the time of district scheme reviews. Some of the proposed designations were fulfilled, but many were either scaled back in size (such as motorways reduced to roads) or were eventually withdrawn completely (such as proposed schools that were never built).

Historically, proposed designations often served little purpose beyond land acquisition and putting the public on notice of the future use of the land. There are few examples of designations for ‘proposed works’ under the RMA.

The move to state-owned corporations and eventually privatisation in the 1980s and 1990s resulted in fewer proposed designations. Under the RMA, the use of proposed designations has been discontinued by the lapsing requirements of the Act which means that most works are established on designated sites within defined timeframes.

The scope of a designation

The scope of a designation defines the nature of the activity and the works that can be established on the designated site.  The scope of a designation ‘is to be defined by what an ordinary reasonable member of the public, examining the scheme, would have taken from the designation’ (Wakatipu Environmental Society Inc. v Queenstown Lakes District Council 2004 AO71/04). The form and scope of the works can also be controlled through any conditions imposed on the designation.

Operative district plans record a designation in the relevant planning maps, and in a full description of the designated purpose. This description, often called the ‘designation notation’ or the ‘designated purpose’, defines the scope of the designation, and what activities the requiring authority may undertake in accordance with s176.

The scope of a designation is a critical determinant of the nature of the activity and associated works that can be established on a designated site. The scope of a designation may be restricted or controlled by detailed descriptions and conditions, including mitigation measures.

In deciding if a proposed work is within the scope of a designation, the territorial authority should take into account the designation notation and, where there is one, the full description of the designated works. It should also take into account any conditions that could limit the designation, and assess whether a member of the public could get a reasonable understanding of the proposed activity or work from the description in the district plan. Designations inserted into plans under the RMA often include very detailed descriptions and conditions, similar to resource consents.

Network utility operator

A definition of network utility operator is included in section 166 of the RMA.  Network utility operators are defined by what activities they undertake, or in some cases, they propose to undertake.  They include organisations that distribute gas, petroleum, biofuel, geothermal energy, telecommunications, radiocommunications, electricity, water, wastewater, roads, railway lines, and airport authorities (including approach surfaces).

A person or organisation may be both a requiring authority and a network utility operator, as defined in the RMA.  However, for a network utility operator to become a requiring authority, the Minister for the Environment must first approve its application to become a requiring authority (s167 of the RMA).

Becoming a requiring authority

Section 167 of the RMA sets out the procedure for a network utility operator to become a requiring authority. Approval of a requiring authority is at the discretion of the Minister for the Environment, and can include the terms and conditions the Minister considers appropriate (s167(3)).

The network utility operator applies to the Minister for the Environment, using Form 17 or similar.

The Minister may make further inquiries and request any further information (s167(2)). Approval is by way of a notice in the Gazette.

Subsection (4) includes two fundamental tests that the Minister for the Environment must be satisfied with to issue a notice in the Gazette. The tests are that:

  1. The approval of the applicant as a requiring authority is appropriate for the purposes of carrying on the project, work, or network utility operation; and
  2. The applicant is likely to satisfactorily carry out all the responsibilities (including financial responsibilities) of a requiring authority under this Act and will give proper regard to the interests of those affected and to the interests of the environment.

It is the network utility operator’s responsibility to satisfy the Minister that requiring authority status is ‘appropriate’ and that it is likely to satisfactorily carry out all the responsibilities.

The Ministry for the Environment, along with several legal publishers, maintains lists of all approved requiring authorities. These are included in annotated versions of the Act.

Best practice

Territorial authorities should keep an up-to-date list of all requiring authorities.

Revoking requiring authority status

The Minister for the Environment can revoke the requiring authority status of any network utility operator (s167(6)), when a requiring authority (s167(5)):

This revocation occurs by notice in the Gazette. All functions, powers and duties of the former requiring authority under the RMA in relation to any designation or any NOR are deemed to be transferred to the Minister for the Environment (under s180).

Section 167(6) does not expressly state that the designation is revoked along with the requiring authority status. It is unlikely that any designation would be automatically revoked by the Minister.

The Ministry for the Environment maintains a list of revoked requiring authorities.

Designation lapse

Sections 184 and 184A state that designations will lapse if they are not used within a reasonable timeframe. This is important because a designation imposes restrictions on any private owners or occupiers of that property while it is in place.

‘Lapse’ is not defined in the RMA so it has its ordinary meaning in a legal context specific to sections 184 and 184A of the RMA: termination of a right or privilege through disuse.  This definition is also used in the case of Hastings v The Auckland Regional Council (A129/2000, Environment Court).  

A lapsed designation is not capable of revival. However, a requiring authority can seek an extension of the time to give effect to a designation in accordance with s184, or it may lodge a new notice of requirement.

A designation lapses five years after the date it is included in the district plan, unless:

If any one of the above provisions are met and lapsing of the designation is avoided, the territorial authority must fix a longer period for the requiring authority to give effect to the designation. The ‘continuing substantial progress or effort’ test is similar to that for resource consents under s125 of the RMA, and does not require completion or near completion of the works. This does not necessarily always mean that physical works must be underway, as determined in the case of Body Corporate 97010 v Auckland City Council (CA234/00 (2001), High Court).

The five-year period is calculated from the date the designation is included in the plan. The requiring authority can apply for more than one extension of the five-year period.

For territorial authority designations, the territorial authority itself must resolve that it is making and is continuing to make substantial progress or effort towards giving effect to the designation.

Transitional provisions and ‘deemed’ requiring authorities

Section 420 of the RMA is of fundamental importance for designations included in transitional district plans. It is a ‘savings provision’, meaning that it temporarily maintains certain rights or responsibilities from the Town and Country Planning Act 1977. Section 420 is still relevant because there are still a number of first generation plans that are not yet operative.  The key subsections are (2) and (5).

Subsection (2) means that designations that were included in a district scheme at the time of the commencement of the RMA automatically continue as designations in transitional district plans, and “the person responsible for the designation shall be deemed to be a requiring authority for that designation;...”. This means that persons or organisations that were responsible for a designation, but do not fit the s166 criteria to become a requiring authority, are deemed to be requiring authorities for the life of the designations(s) in question.

For example, the multitude of ‘port’ designations included in transitional district plans continue to have effect, and the ‘harbour boards’ or their successors (port companies) are requiring authorities, but only for the purpose of those designations.

Subsection (5) defines when the deemed designation and deemed requiring authority status end. It provides that the deemed designation remains in force until the plan is made operative, and then lapses unless the deemed requiring authority has been approved as a requiring authority under s167.

Do existing designations that are not ‘rolled over’ still have effect?

There is a question around whether existing designations have legal effect if they are not ‘rolled over’ or included in any proposed district plan.

If a designation has not lapsed, it continues to have effect until the proposed district plan (or at least that part of it) is made operative. Designations are ‘deemed’ rules and s86B provides for rules in district plans to only have legal effect once a decision on submissions in relation to the rule is made and publically notified under clause 10(4) of Schedule 1 (note there are also specified instances in s86B where some rules can have effect either immediately or from a different date).

What happens when there is more than one designation on a site?

As a general rule, the designation first included in the district plan takes priority. When the requiring authority responsible for the second designation wishes to undertake designated works on the site, it must obtain written consent from the requiring authority of the earlier designation. However, the requiring authority responsible for the earlier designation may only withhold consent if the thing to be done would prevent or hinder the project of work to which the earlier designation relates.

Financial responsibility for a designation

It is well-established through case law that ‘land should not be designated for a proposed public work unless there is a requiring authority prepared to take financial responsibility for it’ as identified in the case Khyber Properties Ltd v Auckland City Council A012/97 (citing the cases Public Trustee v Wanganui City Council (1978) 6 NZTCPA 481 and Gardner v Auckland City Council A52/80).

In addition, in terms of financial responsibility, this is not just limited to the purchase of the land but also extends to the construction of the proposed work (see the discussion in the case Public Trustee v Wanganui City Council (1978) 6 NZTCPA 481). 

Existing use rights and designations

Section 10(1)(b) of the RMA recognises existing use rights when either a designation is removed, or a requiring authority loses requiring authority status, or where a designation lapses. These rights apply only if the effects of the existing use are the same or similar in character, intensity and scale as before the designation was removed.

Two processes under Part 8 of the RMA

There are two processes to follow for notices of requirement set out in Part 8 of the RMA.  One is under s168 for all notices of requirement given to the territorial authority.  The other is under s168A, and s173 to s175 where the notice of requirement is given by the territorial authority for a public work within its district.  These processes are slightly different: s168A does not separate out the territorial authority’s two roles, one as requiring authority and one as ‘recommending authority’.

Notices of requirement for proposals of national significance

If the ‘national significance’ criteria in s142(3) are met, s145(3) of the RMA allows a requiring authority to lodge a notice of requirement for a designation or to alter a designation directly with the Environmental Protection Authority (EPA). The Minister may also, at his/her own initiative, decide to ‘call in’ a proposal of national significance.

The EPA is required to make a recommendation to the Minister within 20 working days of receiving the notice of requirement, requesting a direction from the Minister to either refer the matter to a board of inquiry, the Environment Court, or the local authority. 

In deciding on making a direction, the Minister must have regard to the views of the applicant and the local authority, the capacity of the local authority to process the matter and the recommendations of the EPA.

If the notice of requirement is referred to a board of inquiry or the Environment Court, these bodies make a final decision on the notice of requirement, and not a recommendation to the requiring authority like councils make.

Direct referral and notices of requirement
Sections 198A – 198M allow for requiring authorities to request that notified notices of requirement be directly referred to the Environment Court for a decision, bypassing the territorial authority recommendation.

The RMA also provides for the direct referral of resource consent applications (ss87C to 87I).  The process for the direct referral of resource consent applications is largely the same as the process for notices of requirement.  This process is explained in the Direct referral guidance note.

The Public Works Act and designations

The PWA sets out the process and requirements for the acquisition, including compulsory acquisition, of land by a requiring authority, and the provision of compensation (s186(5) of the RMA).  It should be noted that, where the requiring authority is a network utility operator, these provisions provide for compulsory acquisition by the Crown (Minister of Land Information), on behalf of the requiring authority.

A person who owns or leases land subject to a designation or notice of requirement can apply at any time to the Environment Court using Form 24 or similar for an order that requires the requiring authority to acquire or lease all or part of the land (s185).

The Environment Court may make such an order if it is satisfied that the owner or lessee has tried but has been unable to sell the land or lease it, and either:

Use of commissioners

Section 100A allows a requiring authority or a submitter to request a hearing by an independent commissioner.  The use of commissioners can also be beneficial where:

If using independent commissioners, it is important to ensure that any commissioners have the correct delegated authority to consider notices of requirement and make decisions or recommendations on behalf of the territorial authority. 

See the Use of commissioners guidance note for more information.

Consideration of alternatives

The need to consider alternatives when assessing a designations was a key consideration in Minhinnick, Nganeko v Minister of Corrections [2004] A043/04.  The decision stated that the Court only needed to consider whether the requiring authority had acted arbitrarily or given cursory consideration to alternatives or whether it had carried out sufficient investigations of alternatives to satisfy itself as to the site put forward.  The relative merits of each alternative do not need to be assessed or compared.   

Section 171(1) is ‘subject to Part 2’ of the RMA.  In terms of the consideration of alternatives under s171(1)(b) being subject to Part 2, the Court concluded in the case Beda Family Trust v Transit New Zealand A139/04 that a requiring authority does not have to show it has selected the best of all available alternatives, just that a careful assessment has been made of the relevant proposal to determine whether it achieves the RMA’s purpose.  The ‘subject to Part 2’ does not allow the Court to decide whether some other project alignment or design would better meet Part 2 requirements.

Wording of designations

Requiring authorities should consider the wording of their designations carefully, particularly when they are being rolled over into a proposed district plan, ie, is the purpose of the designation (the nature of the works to which it relates) clearly explained?  See Designations and requirements in proposed district plans.

Changing land uses, technology, and public understanding may gradually make the original wording inadequate.  Territorial authorities should also consider the designation description carefully, particularly when assessing whether a proposed activity or proposed work falls within the designated purpose of a site.  The territorial authority also needs to look at the requiring authority’s decision and any conditions imposed to determine the scope of the designation.

Conditions on designations

Generally conditions on designations are not as specific as those for resource consents, particularly if the detailed design is not yet complete.  In many cases, conditions need to provide management guidance or frameworks for addressing the effects of the final proposal.

Case law on the validity of consent conditions provides a useful guide for recommended conditions on designations.  The Newbury tests for conditions were laid down in the English decision Newbury District Council v Secretary of State for the Environment [1981] AC 578.  New Zealand’s Court of Appeal held that the Newbury tests remain of general application and that New Zealand courts should continue to apply them in relation to RMA provisions.  According to the ‘Newbury tests’, a valid condition should:

In addition to the Newbury tests, a valid condition should also:

If the requiring authority wishes to undertake works that are within the scope of a designation, but are in conflict with a condition, it can seek to remove or modify the condition by lodging a notice of requirement to alter the designation.

If a territorial authority is proposing to recommend conditions on the notice of requirement, it is useful to discuss these with the requiring authority before the hearing (if the notice of requirement is notified).  Many conditions can be mutually acceptable in the interests of providing clarity or certainty for the territorial authority or the public and requiring authority.

Any proposed recommended conditions should be clearly specified within the officer’s report and made clear during the hearing.  These conditions may then need to be revised taking into account any developments at the hearing.  The hearings panel may add additional conditions or depart from the recommended conditions in the officer’s report or those offered by the requiring authority. See the Resource consent conditions guidance note for more guidance on drafting conditions. 

As designations are a mechanism for protecting land needed for a public work or project they may not be implemented for several years.  The RMA provides for the submission of outline plans at the time detailed design is known (see Outline plans).

In some cases, designations may have no conditions or it may not be appropriate to impose conditions.  Instead, s176A provides for an outline plan to be provided at the construction stage, when additional information is available.  This was a relevant consideration in Dunedin City Council v Airways Corporation of New Zealand Ltd [2000] C210/00).  However, it must be understood that territorial authorities cannot impose conditions on an outline plan.  A territorial authority can only request changes to the outline plan.  Thus, it is normally more appropriate to attach conditions to a designation to provide a framework for preparing and considering an outline plan of works.

Transferring designations

This is a straight forward process and involves the requiring authority that is transferring responsibility for the designation to advise the Minister for the Environment and the relevant territorial authority of the transfer.  This transfer of responsibility includes financial responsibility (s180).

The territorial authority must then update the district plan and any proposed plans, without using the Schedule 1 process.

If the network utility operator or organisation is not a requiring authority, they must become one under s167 before the transfer of the designation can occur.

Process for removing designations

If a requiring authority no longer wants the designation or part of the designation, it must give notice to the territorial authority using Form 23 of the Resource Management Forms Fees and Procedure Regulations 2003 and notify:

The designation is then removed from the district plan without using the Schedule 1 process.

Where a territorial authority considers that the effect of the removal of part of a designation on the remaining part of the designation is more than minor, it may, within 20 workings days of receiving notice, decline to remove part of the designation. 

A requiring authority can object under s357 of the RMA to a territorial authority’s decision to decline the removal of part of a designation.  It can then appeal the territorial authority’s decision on the objection.

Envelope effects approach to notices of requirement and outline plans

To make better use of the outline plan stage, an effects envelope can be set through the use of conditions on the notice of requirement.  These conditions require the mitigation of effects through the use of management plans, which are supplied at the outline plan stage, when construction details are known.  In some circumstances, the territorial authority may agree to waive the requirement for an outline plan if a management plan is submitted instead.  Such an approach was used by the Auckland City Council for the Victoria Park Tunnel designation.

Section 176A(2) and waiving outline plans

Other than waiving the requirement for an outline plan, a territorial authority does not have any decision-making power under s176A(2) of the RMA.  The decision that an outline plan is not necessary under sub-clauses (a) and (b), rests with the requiring authority (subject to potential judicial review).  Waiving the outline plan requirement removes any right to a subsequent appeal by a territorial authority.

A requiring authority should request that the territorial authority waive the requirement for an outline plan if it does not believe one to be necessary.  It is good practice to discuss the potential for a waiver with the territorial authority initially, then make the request in writing.

Extending timeframes

As with all timeframes stipulated by the RMA, where a territorial authority cannot meet the 20 working day time period, but does wish to request changes, s37 allows the territorial authority to extend the time limit in certain circumstances.  If doing so, this extension should be communicated to the requiring authority at the earliest opportunity and within the initial 20 working days.  With particularly complex projects, it is possible that a longer timeframe can be mutually agreed between the requiring authority and the territorial authority (s37A).