To calculate a discount you must know the timeframes you are working under and have a consistent approach to working days. This chapter defines key terms and describes how consent application tracking systems could operate. It will help manage potential inconsistencies in the application of timeframes under the Act.
Consent tracking systems vary in sophistication and application between local authorities. The degree of process change necessary (if any) to implement the Regulations will depend on each local authority’s current consent tracking system. Those with primarily paper-based systems may have to make considerable changes.
A working day is defined in the Act as:
“working day means any day except—
(a) a Saturday, a Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign’s birthday, and Waitangi Day; and
(b) a day in the period beginning on 20 December in any year and ending with 10 January in the following year.”
The actual definition of working day within the Act cannot be changed through regulations.
A document or piece of information is ‘received’ by the local authority when:
Note that the clock begins ticking from the date the information enters the local authority building, not the date it is received by its consent department. It is important that applicants are not penalised by a local authority’s internal procedures; for example, by delays caused by its internal mail system.
It is therefore important for a local authority to have a consent tracking system that begins from the time a document or information enters its building.
The first statutory ‘working day’ for a consent application should be the first full day after the application is received. For example, if a consent application is lodged at any time after 9.00am on a Monday, the first statutory day will be the Tuesday.
An application is emailed to the local authority and received by the local authority email system at 4.00pm on Tuesday. The application is officially received and the statutory timeframe begins on the Wednesday.
An application is sent via the post to the local authority and is received by the local authority mail room at 10.00am on Monday. The application is officially received and the statutory timeframe begins on the Tuesday.
An application is dropped off at the local authority and received by the reception desk at 8.30am on Monday. The application is officially received and the statutory timeframe starts on that day, Monday.
The Act allows five working days after a consent application is lodged to check it for completeness and adequacy. During this time it can be returned to the applicant if it is considered to be incomplete.
The time taken to check the consent application runs concurrently with the 10 working day timeframe for determining and carrying out notification. That is, the five working days to consider the completeness of a consent application is a parallel timeframe, and is not additional to the total timeframe for processing consent applications. The concept of parallel timeframes is discussed in more detail later in this chapter.
Where a consent application is rejected as incomplete, any time spent assessing the application will not count because, if the application is re-lodged, it will be treated as a new application.
If the clock is stopped after 9.00am at any time during the day, the entire day should not be counted. Conversely, if further information is received, and it includes all the information requested, then the clock does not start again until the next day.
This is the same with stopping and starting the clock for hearings, requesting reports and waiting for the applicant to gain written approvals.
A further information request letter is sent to the applicant at 4.30pm on Tuesday. The whole of Tuesday will not count towards the statutory time frame of the application.
A further information request letter is sent to the applicant at 10.00am on Tuesday. The whole of Tuesday will not count towards the statutory time frame of the application.
Further information is received from the applicant at 2.00pm Friday, and is considered to include all of the information requested. The whole of Friday will not count towards the statutory time frame of the application and the clock will start again on the Monday.
Further information is received from the applicant at or before 9.00am Friday, and is considered to include all of the information requested. The whole of Friday will count towards the statutory time frame of the application and the clock will start again on the Friday.
A hearing begins at 12 noon on Tuesday. The whole of Tuesday will not count towards the statutory time frame of the application.
A hearing ends at 5.00pm on Friday. The statutory clock will start again on Monday and the whole of Monday will count towards the statutory time frame of the application.
The clock does not stop for good when a decision is made on a consent application. It only stops when the notice of the decision is issued and sent (along with the decision itself) to the applicant as required under section 114 of the Act. Therefore, a discount will apply if the notice of decision is not given by the end of the relevant timeframe.
The day on which the notice of decision is issued and sent is counted as a full day under the relevant timeframe.
To ensure that the applicant receives their decision as soon as possible, notices should be emailed as well as sent via mail whenever possible. It is also good practice to phone the applicant and advise them of the decision as soon as possible. This practice should also apply to notification, information requests, commissioning reports, and any other formal communication with the applicant.
When calculating the discount, it is not necessary to have also served the notice of decision on the other parties required under section 114(2)(b) for the clock to stop. Note, however, that although it is not factored into the discount calculation, the Act still requires the notice of decision to be served on other parties within the relevant timeframe. It is therefore best practice to send it to submitters at the same time as the applicant.
Not factoring other parties into the discount calculation recognises that sometimes there are a large number of submitters and sending out the notice of decision can be time consuming.
On occasions an applicant may request that the processing of a consent application be placed ‘on hold’ and, as a result, the processing timeframes be suspended. The Act does not make provision for this particular situation and this scenario is not mentioned in sections 88C or 88E.
If an applicant wishes to suspend the processing of a consent application, it is recommended that local authorities consider whether to extend the relevant timeframes using section 37, with the applicant’s approval, in accordance with section 37A criteria. It would be appropriate to ensure a sufficient extension is agreed with the applicant to avoid numerous section 37 extensions.
Alternatively, if the applicant is uncertain how long to place the consent application on hold, the local authority may want to discuss the possibility of it being withdrawn and re-lodged at an appropriate later date. This would avoid a backlog of unresolved consent applications remaining on local authority systems indefinitely.
Giving applicants the ability to request that their consent application is put on hold is being considered in Phase II of the Resource Management reforms.
The Regulations make an allowance for when the circumstances of a consent application change, affecting the processing timeframes. The most likely example is when the sole submitter on an application either gives approval or pulls out of a hearing at the last minute, and a hearing is no longer required.
The Regulations stipulate that the original timeframe still applies for calculating a discount, even though the changed circumstances may mean fewer days are actually allowed under the Act. In practice, this means that while the time taken to process the consent application may not meet the timeframes under the Act, a discount will not be required.
Every consent application has timeframes that add together to make the total statutory timeframe in which to process the application. However, there are often additional timeframes specified within the Act that run alongside the statutory timeframes but do not count towards the total processing time. These are called ‘parallel timeframes’. Some examples of parallel timeframes are in table 1.
|Step||Section||Statutory timeframe (days)|
|Time from consent being lodged until decision that application is complete||88(3)||5|
|From close of submissions to request a commissioner||100A(3)||5|
|To provide notice of hearing||101(1)(3)||10|
|For applicant to provide evidence before hearing||41B(2)||10|
|For submitter to provide evidence before hearing||41B(3) and (4)||5|
|After the applicant’s right of reply, a hearing must close, if it has not already closed||103A(2)||10|
For non-notified consents where there is no hearing, the timeframe for making a decision on notification runs parallel to the timeframe for making a decision and does not have to be counted (20 working days from lodgement under s115(3)).
For non-notified consents that do involve a hearing, the timeframe for making a decision on notification is also not counted as it is parallel to the timeframe for holding a hearing (25 working days from lodgement under section 101(2)(b)).
The table and diagram in Appendices E and H further illustrates parallel timeframes.
The timeframe in which a hearing is held does not count towards the total timeframes under the Act. The clock is stopped from the working day before a hearing begins until the day after the hearing is closed. The time the clock is stopped includes any days of adjournment in between the beginning and end of the hearing.
Section 103A requires that a hearing must be concluded no later than 10 working days after the applicant’s right of reply. Apart from this, there is no limit to how long a hearing can take under the Act, apart from the general duty under section 21 to avoid unreasonable delay and undertake tasks as promptly as is reasonable in the circumstance.
The timeframes under the Act can be modified in certain circumstances. They can either be extended under section 37, or they can be stopped under sections 88C, 88E and 88D (section 88D is only relevant to consent applications where direct referral is requested).
Section 37 enables a local authority to extend a time period specified in the Act. Section 37A sets out the matters that the local authority must consider when deciding on an extension. Local authorities can double the timeframe if there are special circumstances, or if the applicant agrees. To extend the timeframe for longer than double, the applicants must agree. Note that the Act does not define ‘special circumstances’; definition will be likely to come from practice and from the court decisions.
It is good practice for applicants to be contacted as early as possible if there is a need to extend timeframes, and explain why this is required. The implications and/or alternatives of any decision should also be made clear to the applicant. For example, where consideration needs to be given to draft conditions, the implication of not agreeing to an extension may be that concerns are resolved through a section 357 objection process, which can take up to 20 working days, leading to an additional delay.
Where an applicant agrees to more than double the timeframes, it is appropriate to set an extension long enough to avoid numerous further extensions.
When the applicant does not agree to an extension of time, section 37 can only be used where there are special circumstances. The use of sections 37–37A should be supported by clear reasons why special circumstances are considered to exist, such as the scale or complexity of the consent application. Special circumstances are unlikely to exist only because of high workload or other internal resourcing issues.
Time extensions may be appropriate in the following situations:
When a section 37 extension is made, the reasons for the extension and each timeframe extended need to be recorded. There is no barrier under the Act to extending all timeframes for a consent application at once, provided all section 37A criteria are met for each extended timeframe.
It is implicit in the Act that, if a timeframe is extended, it should be for a specified period or until a specified event occurs. If only a short extension is required (for example, five days), specifying the length of the extension may help gain the applicant’s agreement.
Sections 88C, 88D and 88E allow the processing clock to stop under certain circumstances. It is important to note that the circumstances highlighted in the Act are the only circumstance under which the clock can be stopped. See table 2.
Section 88B specifies the timeframes that can be extended by sections 88C, 88D and 88E. Again, it is important to note that these are the only timeframes that can be extended under these sections.
The circumstances when the clock can stop for consent applications which include a request for a direct referral are included in Appendix G.
|Sections||Circumstances||Clock stops||Clock starts|
|92/88C(1)(b)(i) and 88C(1)(b)(ii)||Further information is requested and it is the first request, or the first request since the close of submissions||Date of the request (whole day excluded)||
The day after:
|92(2)(b)/88C(4)||A report is commissioned where there is the possibility of significant adverse effects||Date of request (whole day excluded)||The day after report is received|
|92(2)(b)/88C(6)||A report is commissioned where there is the possibility of significant adverse effects||Date of the request (whole day excluded)||
The day after:
|91(2)/88E(2)||The local authority requests that additional resource consents be lodged||The date the local authority advises the applicant of the decision to defer (whole day excluded)||The day after the required applications are lodged with the appropriate local authority|
|88E(4)||The applicant tries to obtain written approval||The date the applicant advises that he/she/it wishes to seek written approval||
The day after:
|99A/88E(5)||An application is referred to mediation||The date that the application is referred||The day after the mediator reports|
As noted above, only certain timeframes can be altered by the provisions in table 2. The timeframes that can be altered are listed in section 88B(2). In summary they are:
Under section 36(7), a local authority is not required to undertake an action under the Act until a fixed fee is paid. As can be seen from table 2, there is no allowance in the Act for the clock to stop in these situations. This section only applies to fixed fees, such as a consent application fee or notification fee. This section does not apply to additional charges under section 36(3) of the Act, such as the cost of additional time spent by officers to process a consent application.
Under the Regulations, any working days where the local authority does not process a consent application under section 36(7) are excluded from the total days. Therefore, it is important that a full information record is kept. The information should include the type of fee which has not been paid, the day the fee is required and the day the fee is received. Applicants should be made aware that section 36(7) is being applied, so they can make the payment as soon as possible and ensure their consent application is progressed.
The Regulations specifically address consent applications to which section 124 applies. That is, where:
In these situations, a discount does not apply if the notice of decision (section 114) on the renewal application is served on the applicant before the existing resource consent expires.
It is expected local authorities will begin processing renewal applications when they are received three to six (or more) months before the existing consent expires.
If the notice of decision is not served on the applicant before the existing application expires and it should have been (within the applicable timeframes in the Act), a discount of 1 per cent per day applies to each working day beyond the expiry date that an application is still being processed (see figure 3). If the applicable timeframes in the Act do not require a notice of decision to have been served on the applicant, then whether or not a discount applies will be calculated as normal.
If the notice of decision is not served on the applicant before the existing application expires and it should have been (within the applicable timeframes in the Act), a discount of 1 per cent per day up to a maximum 50 per cent applies to each working day beyond the expiry date that an application is still being processed.
In situations where a matter is lodged with the EPA but the Minister does not consider the consent application to be nationally significant, the application is returned to the relevant local authority (or authorities) for processing.
For the purposes of calculating timeframes, the processing clock starts on the date which the EPA notifies the local authority of the Minister’s decision. The consent application is then subject to the same timeframes as a normal application, and the processing clock should be administered in accordance with information in this chapter.
The only difference is that the local authority cannot decide that the consent application is incomplete under section 88(3). As the section 88(3) timeframe is a parallel timeframe and does not count towards the total processing timeframe, the application could generally fit into one of the categories in the Schedule of the Regulations. Any discount will only be calculated on the timeframes for which the local authority is responsible under the Act. This means that any working days that the consent application is held by the EPA are not included in the calculation of a discount.
Consent applications which are lodged with a local authority may be called in by the Minister if the Minister believes that they are nationally significant. The Minister can call in a notified consent application up until five working days after the close of submissions. Non-notified consent applications can be called in up until the decision is made.
In these cases, any discount for the consent application will only be calculated on the timeframes for which the local authority is responsible under the Act.
The fees that are discounted for consent applications which are called in are only the fees that relate to the processing of the application up until notification, or the decision not to notify. The Regulations do not apply to any costs incurred by a local authority once a consent application has been called in by the Minister.
The discount regulation applies when:
There is no total time limit specified in the RMA which is applicable to applications that are affected by direct referral. Unlike the Schedule of the Regulations which includes the total timeframes for the most common consent categories, it is not possible to establish a schedule for the variances in timeframes associated with direct referral. The separate timeframes and the time exceptions for different stages in a consent process where a request for a direct referral is made need to be selected and added together to find the total time limit for each application on a case-by-case basis. To assist with the calculations, the timeframes that could apply to a consent application where direct referral is requested are listed in Appendix F.
With respect to direct referral applications, a discount needs to be given if the number of working days described in the applicable scenarios below is smaller than the number of working days actually taken:
The number of working days actually taken is calculated by totalling the number of working days (excluding the ‘excluded days’ which are set out in the Regulations) used to process the application in the applicable timeframe.
The Regulations do not apply to any of the costs of the Environment Court.
Other statutory issues may, from time-to-time, affect the processing timeframes of resource consents. For example, the aquaculture moratorium legislationFootnote 1 and provisions in the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010.
In cases where an application is not processed on time due to delays resulting from other statutory issues, the days where processing does not occur for this reason are excluded from the calculation of a discount under the Regulations.
Back to footnote reference 1 Resource Management (Aquaculture Moratorium) Amendment Act 2002 and Resource Management (Aquaculture Moratorium Extension) Amendment Act 2004.