The designation process

You can provide input during the notice of requirement process, if it is notified publicly, or if you have been identified as an affected party. This might relate to the proposed development, or the completed project. For example, you may generally support a proposal, but you may request added conditions to address a concern, such as the hours of construction. You can oppose a notice outright.

Once a designation is included in a district plan, a district land-use consent will not be required as long as the work meets the relevant designation.

If you want to use or subdivide land that is subject to a designation you would have to get the prior written consent of the requiring authority. A regional consent will still be required if the work does not meet regional rules.

1.  Before a notice of requirement is lodged

Before a requiring authority gives notice of its requirement for a designation (lodges the application with the council), they must do their background work and prepare the application. This includes considering policies and plans, and the environmental effects, including alternative sites, routes or methods.

Public consultation

During this process, the authority may consult with the community to gain feedback on the proposal, and to help identify any environmental effects. People who may be consulted include: those whose land is directly affected by the designation, neighbours, local iwi, and possibly other organisations such as the Department of Conservation, Heritage New Zealand Pouhere Taonga, and the New Zealand Fish and Game Council – depending on the site, the issues arising and the likely effects.

2.  During the process for notices of requirement

There are three pathways for processing a notice under the RMA: standard, nationally significant proposals, and direct referral. There may be opportunities for public input (submissions) during each.

Standard process

There are two options for the standard pathway: for an operative district plan, and for proposed plans about to be notified.

When the notice is for inclusion in an operative plan

Submissions

If the notice is publicly notified, anyone can lodge a submission.

If the notice is limited notified, only those people notified (affected persons) can lodge a submission.

If the application is non-notified, no one can make a submission. The council will make a recommendation to the requiring authority.

Hearing

If submitters wish to be heard, the council will hold a hearing to determine their recommendations on the notice, which can be heard by the council or independent commissioners.

After the hearing, the council makes a recommendation to the requiring authority. This can include putting conditions on the designation, to manage any potential effects of the proposed work or project. The requiring authority will decide whether to accept the recommendation, and make their final decision.

Decision

If no appeals are received, the council publicly notifies the requiring authority’s decision, and makes the designation operative in the district plan.

Appealing a decision

The council, and any submitters, may appeal a decision to the Environment Court. Appeals for an operative plan must be served within 15 working days of when the decision was issued.

Environment Court decisions can be appealed to the High Court, but on points of law only.

When the notice is for inclusion in a proposed plan

If the council receives a notice of requirement and is about to publicly notify its proposed plan, it can ask the requiring authority if it wants to include the notice in the plan.

In that case, the notice can follow the standard plan-making process rather than the process above.

Submissions

This process will still allow for submissions, and depending on the plan-making process, could include a hearing.

In most cases, the proposed plan, including the notice of requirement, will be publicly notified. Anyone can lodge a submission within a minimum of 40 working days.

Hearing

If you wish to be heard and have submitted on the notice of requirement, the council will hold a hearing to determine a recommendation. The hearing can be held by the councillors or independent commissioners.

After the hearing, the council makes a recommendation to the requiring authority. The authority has 30 working days to decide whether to accept it, and make their final decision.

Decision

If no appeals are received, the council notifies the requiring authority’s decision, and makes the designation operative when they make the proposed plan operative.

Appealing a decision

The council, and any submitters can appeal the requiring authority’s decision to the Environment Court. Appeals must be served within 30 working days of when the decision was issued.

Nationally significant proposals (NSPs)

If the Minister for the Environment considers a notice of requirement part of an NSP, he/she can refer it to a board of inquiry or the Environment Court for a decision.

This process below applies if the Minister considers a notice of requirement meets the statutory criteria to be an NSP. The Minister could make this determination following a request from a council, requiring authority; or at their own initiative; or if the requiring authority lodges the notice of requirement directly with the Environmental Protection Authority (EPA)

Submissions

In all cases, the notice will be publicly notified, and you will have the opportunity to be involved by making a submission.

Hearing

The Environment Court or board of inquiry will hold a hearing on the NSP. If you have made a submission, you can speak at that hearing. It will usually be held near the site of the proposal.

The board of inquiry or Environment Court will make the decision on the notice of requirement, rather than the requiring authority.

Decision

If no appeals are received, the requiring authority is notified of the decision, and the council makes the designation operative in the district plan.

Appealing a decision

Submitters, the council, and the requiring authority can only appeal the decision to the High Court on points of law. This is to determine whether the Environment Court acted within its powers, such as applying the correct legal test and taking into account matters which should have been considered.

Direct referral to Environment Court

A notice of requirement may be directly referred to the Environment Court if the requiring authority and the council agree.

In these cases, the notice application is lodged with council, which assesses it and checks if there is enough information. If necessary, the authority will be asked to provide more information.

Submissions

The council then publicly notifies the notice of requirement. This is where the public have the opportunity to be involved, and can make a submission. The council then prepares a report on the submissions.

Hearing

The council hands over the application to the Environment Court, which at this stage takes over the processing. The court holds a hearing for the notice of requirement. If you have made a submission, you can speak at that hearing. It will usually be held near the site of the proposal.

Decision

The court makes the decision on the notice of requirement. If no appeals are received, the requiring authority is notified of the decision, and the council makes the designation operative in the district plan.

Appeals

The decision can only be appealed to the High Court on points of law.

Once the designation is put in place, the requiring authority can use the designated land for the ‘designation notation’ or ‘designated purpose’ as set out in the district plan. This is also known as the ‘scope’ of the designation.

This means the requiring authority can do anything allowed by the designation without applying for resource consent or meeting any district plan requirements, although approval of the outline plan approval may be required (see What is outline plan approval?).

The council may still require approval of the outline plan for the project, before work begins. Approval is limited to assessing whether the works are within the scope of the designation.

If an outline plan is required, the council has 20 working days to assess it and request any changes by the requiring authority. If no requests are made, it is assumed that work can start on the site.

If the authority does not accept the council’s changes, the council may appeal to the Environment Court.

If the requiring authority wants to use the land for something not identified in the scope of the designation, normal district plan provisions apply. In other words, the requiring authority would need a resource consent if the district plan does not permit the proposed activity.

Designations only apply to district plans. The requiring authority will still need to get any resource consents that may be required by a regional plan.

A designation also limits what anyone other than the requiring authority can do on the designated land.

Designations can trigger acquisition powers

Once the designation is finalised, the requiring authority can apply to compulsorily acquire land that is designated under the Public Works Act 1981.

At the same time, someone who owns designated land can ask the Environment Court to direct the requiring authority to acquire or lease (often through easements) all or part of the land if they have tried and are unable to sell it, and either:

• the designation prevents the reasonable use of the land, or
• the person was the owner of the land (or in a legally accepted relationship with the owner) when the designation was created.

Each designation has a lapse date. A designation has been deemed to be ‘given effect to’ once work is largely completed. If the work is not largely completed before the lapse date, the designation ceases to exist.

A requiring authority can apply to the council to extend the lapse period under certain conditions. The authority can also lodge an objection if the council refuses to extend the period.

Once ‘given effect to’, a designation remains valid for the life of the district plan, or until the requiring authority removes or alters the designation. Designations can be carried into new versions of the district plan.

Some designations may overlap, so that there is more than one on a site. If this occurs on your land, you will require written approval from each of the requiring authorities for any activity that could hinder the designated work or project.

Yes, but transfers are only possible between requiring authorities. If the financial responsibility for a designation transfers from one requiring authority to another (eg, the assets are sold), responsibility for the designation itself also transfers. The requiring authorities must advise the council and the Minister for the Environment of this. The transfer is then noted in the district plan.

A designation can be altered by the requiring authority, using any of the notice pathways above. If the alteration meets the following criteria, it can be processed without notification by the council:

• it involves no more than a minor alteration to the effects on the environment associated with the use or proposed use of land or adjustments to the boundaries of the designation or requirement
• written notice is given to every owner or occupier of the land directly affected, and they agree with the alteration
• both the council and the requiring authority agree with the alteration.

The process is much the same as for a new designation (discussed above).

A designation can be rolled over from an operative district plan into a proposed district plan. If a designation (that has not lapsed) is not rolled over, it continues to have effect until the plan (or at least that part of it) becomes operative.

If a requiring authority no longer wishes to designate a site in a district plan, they must advise the council and anyone else they think is likely to be affected by the designation. The council then removes the designation from the district plan (including the planning maps).