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Brief Counsel

Making councils pay for missed RMA deadlines

22 February 2010

Developers frustrated by the lack of incentives on councils to process consent applications within statutory deadlines may soon be able to claim fee discounts of up to 80% when consent processes run over time and the local authority is at fault.

The change was provided for in recent amendments to the Resource Management Act (RMA) and the Ministry for the Environment (MfE) is now seeking feedback on the regulations to implement the policy.

This is a real opportunity to incentivise councils to comply with statutory timeframes, provided the right methods are adopted.

The discussion document is available here.  Submissions close on 1 March 2010.

Issues under consideration

The MfE is considering, and seeking feedback on, such matters as:

  • the method of calculating a discount – the MfE’s preferred method is a sliding scale percentage discount, so that discounts increase as delay lengthens

  • the value of the discount – the preferred option is to have a 5% discount per day for the first 5 days, then a further 5% for each additional week.  The preferred proposal is to cap the discount at 80% of the total charge

  • how is local authority “fault” determined? – the MfE’s preferred approach is to provide an explanation of what constitutes “fault” rather than leaving it to the discretion of local authorities or to provide for agreement between the authority and the applicant, and

  • identifying the timeframes after which a discount will apply – the MfE indicates a preference for adding all statutory timeframes together and applying the discount after that time.  This will allow a local authority to “make good” any failures to meet earlier deadlines (such as the timeframe for making a decision on notification).

Commentary

The approach advocated by MfE is sound, and will create real incentives for councils to meet the timeframes set out in the RMA – something that is noticeably lacking at present.  Some of the other methods, such as fixed discounts, or a lower percentage discount, would reduce the incentives on councils and, therefore, the utility of the scheme for applicants.

Unfortunately, the discounts won’t apply for delays in processing designations, as the Act only provides for discounts for resource consents or applications to change consent conditions.  Extending the discount provisions may be something infrastructure clients may wish to pursue in the context of the upcoming Stage 2 RMA reforms.

This is the only opportunity the public will have to have their say on the methods for implementing the discount, and there is only a short time available for submissions. 

If you would like further information about what the MfE is proposing or assistance with submission preparation, please contact the lawyers featured.

Contacts