4 Administering the Regulations
A consistent and correct approach to calculating the discount is needed. Local authorities should also have adequate provisions in place to advise applicants of the discount and deal with disputes if they arise. This chapter covers how to calculate the discounts and resolve disputes.
How to calculate discounts
The Regulations outline how a discount is to be calculated. Regulation 9 deals with all consent applications:
- that are not called in by the Minister
- where there is no direct referral request
- where the consent application is not a ‘replacement consent’.
The Regulation 9 stipulates that:
“(2) An application is not processed in the time limit applicable to it if the number of working days selected under subclause (3) is smaller than the number of working days calculated under subclause (4).
(3) The selection of a number of working days must be done by selecting the number of working days applicable to the application from the Schedule.
(4) The number of working days is calculated by totalling the number of working days (excluding the excluded days) actually taken to process the application in the applicable timeframe starting on the day after the day on which the application is lodged and ending on the day on which the local authority complies with section 114(1) within the time limits in section 115.”
Regulation 3, which deals with interpretation, notes that:
excluded days means, for an application,—
(a) the working days on which a local authority does not perform an action on the application because the authority has not received the full amount of an administrative charge for the action, which section 36(7) permits the authority to do:
(b) the working days in an extension to a time period applicable to the application, as provided for in section 37(1):
(c) the working days in a time period listed in section 88B(3) excluded from a time limit listed in section 88B(2) applicable to the application:
(d) the working days in a time period during which a local authority does not process the application —
(i) for any other reason in the Act; or
(ii) for a reason in any other enactment; or
(iii) for a reason based on any rule of law:
(e) if there is a hearing on the application, the working days from and including the day on which the hearing starts to and including the day on which the hearing concludes:
(f) if anything in the Act or under any rule of law requires the application to be renotified, the working days starting on the day on which the application is first notified and ending on the last working day before the application is renotified.”
Effectively, this means that the discount needs to be calculated in a two-stage process, summarised in figure 1. The first step is to identify the total actual number of working days taken to process the consent application. Note that some days are ‘excluded days’, which means that if they are initially counted, then they must then be deducted as part of Step 1.
Excluded days for the purpose of the Regulations are days on which:
- the local authority has not processed the consent application because a fixed fee has not been paid (section 36(7)), or
- the application has been put on hold under sections 88C, 88D or 88E, or
- the timeframe has been extended under section 37, or
- a hearing has been held on the application, or
- the local authority has not processed the application because the local authority is excused from processing the application by the Act, any other statute or by any rule of law, or
- an application is first notified up until the day before the application is notified for a second time.
The second step is to subtract the relevant number of working days selected from the Schedule of the Regulations.
A discount will need to be given if the working days taken to process the consent application are more than the amount provided for in the schedule.
Figure 1: How to calculate a discount
Read a description of this figure
To calculate a discount:
1) Identify the total actual number of working days taken to process the consent application. Note that actual working days do not include days where processing does not occur:
- under section 36(7)
- under section 37
- under sections 88C, 88D or 88E
- because a hearing is under way
- if the local authority is excused from processing the application by any rule of law, the Act or any other statute
- if an application is re-notified the days between the first and second notification.
2) Subtract the relevant number of working days from the Schedule of the Regulations from the actual working days taken in step (1).
Whether or not excluded days are routinely counted will vary between local authorities. If counted, they can be deducted later. If not counted, they do not need to be factored into the discount calculation.
Invoicing for any additional fees and any discount should be done at the same time and as soon as possible after the notice of decision has been issued. The discount should be deducted from any additional fees at the time of invoicing, and a single notice sent to the applicant. Combining the two will reduce the likelihood of a refund being required.
Any refund should be paid to an applicant as soon as is practical after the consent application is decided.
If no refund is due and no additional fees are required, it is still appropriate to provide the applicant with information about how a discount has been calculated.
The calculations can be displayed in several ways. For example, a letter or form could be sent to the applicant, outlining the working days taken to carry out tasks and the dates on which these actions occurred. The form could also show alterations to the timeframes, total days, total fees and the discount being taken off the fees if appropriate. Appendix A includes a number of examples of basic forms for discount invoicing covering the different kinds of consents outlined in the Schedule of the Regulations. One example is shown below (figure 2). Appendix D also includes example letters to accompany discount calculations and invoices.
| Processing Step | Dates | Actions | Working days taken | Alteration of working days | Reason for alteration | Working days for the purpose of calculating a discount |
|---|---|---|---|---|---|---|
| Lodgement of resource consent application to decision to proceed on a notified/limited notified basis | Day/Month/Year to Day/Month/Year | Clock stopped for first information request | 5 | 5 | ||
| Day/Month/Year to Day/Month/Year | Information received to notification | 5 | 5 | |||
| Notification to close of submissions | Day/Month/Year to Day/Month/Year | 20 | 20 | |||
| Close of submissions to hearing held | Day/Month/Year to Day/Month/Year | Clock stopped for second information request | 5 | 5 | ||
| Day/Month/Year to Day/Month/Year | Information received to notification | 20 | 20 | |||
| Closing of hearing to notice of decision | Day/Month/Year to Day/Month/Year | 32 | 13 | Extension agreed by applicant under section 37 | 19 | |
| Total processing time | 74 | |||||
| Required processing time under Act | 70 | |||||
| Days over processing time | 4 | |||||
| % discount | 4 | |||||
| Deposit paid | $1,000.00 | |||||
| Additional fees due | $600.00 | |||||
| Total fees before discount | $1,600.00 | |||||
| Discount | $64.00 | |||||
| Fees due | $1,536.00 | |||||
Disputes
Disputes regarding a discount, or the amount of a discount, cannot be considered under the Act’s existing review procedures (sections 357, 357A or 357B). These sections outline when there is a right of objection, but none reference the Regulations. The Regulation powers did not enable an objection process to be written into the Regulations. However, under natural justice it would be fair and equitable to have a dispute resolution process in place. An applicant is likely to either disagree with the amount of the discount, or the decision on whether a discount was given at all (ie, whether the consent application was processed within the Act timeframes, or if it was late, by how many working days).
Issues that are likely to require reconsideration in a dispute are:
- whether the correct working days are described as the ‘working days taken’
- what the applicable timeframe in the Schedule is (or, for less common consent applications, what the applicable processing timeframe is under the relevant regulation)
- whether, based on those two factors, timeframes have been exceeded and a discount applies.
For disputes about ‘working days taken’, local authorities may need to recheck what the Regulations say about valid reasons for the days to have been excluded. If the applicant is sent an invoice or form that includes all relevant information (for example, as in figure 2), then the local authority could require the applicant to point out what they believe has been miscalculated and why.
To make the disputes process easier, local authorities could create forms for applicants to use, including which area of the calculation the applicant thinks is incorrect and why. The applicant may also attach any evidence in support of their claim. An example is provided in Appendix B.
In most situations, it will not be necessary to hold a hearing of the dispute; decisions should be made on a case-by-case basis. The decision on any dispute should be notified to the applicant in writing and should include the reasons for the decision. If the applicant has not given any particular reasons for disputing the decision, it will be sufficient for the local authority to note that it has reassessed whether the amount of the discount (or whether a discount is payable) is correct and whether it is satisfied that the discount has been calculated in accordance with the law. Again, to make the process more streamlined, local authorities may wish to develop a form letter for decisions on disputes. An example is provided in Appendix C.
If an applicant still disputes the local authority’s findings they can contact the Office of the Ombudsmen and request an investigation. The Office of the Ombudsmen will usually only consider complaints if the complainant has already attempted to resolve the issue with the agency concerned.
