The evolution of designations
Andrew Cumberpatch
Planner, MWH NZ Ltd. - [email protected]
Wednesday 15th April – 1.30-3.15pm
Key Words: Designations
Abstract
Designations are a planning tool that have been used, in differing forms and for numerous
purposes, by Ministers of the Crown, local authorities and network utility operators for
decades. However, we have seen an evolution in the way in which they are developed,
processed and implemented. Particularly so as a result of recent Board of Inquiry decisions.
Given the genesis of the Notice of Requirement (NoR) process (i.e. pre RMA) and their
evolution over recent years, is it time to reconsider the appropriateness of the current
designation?
This paper will reflect on the history of designations, and will explore the ramifications of
the evolution of the NoR process from the perspective of requiring authority, regulatory
authority and the community. In particular, this paper will discuss:

Issues associated with implementing historic designations;
1

Issues associated with designations with minimal or outdated conditions;

How the scope of the outline plan of works has changed over time with the
development of adaptive management and interpretation of “any other matters”;

The disjoint between the NoR process and the scope of the Public Works Act,
particularly with regard to adjacent landowners. Is it better to be in the designation
than next to?

The differences between “futureproof” designations and designate to build
designations. Should there be differences in their application?

The blighting effect associated with designation lapse periods and the implications of
being able to extend them. What does “substantial progress or effort” mean?
Introduction
The Notice of Requirement (NoR) process is well established within New Zealand planning
legislation as a planning tool that has been used by Ministers of the Crown, local authorities
and network utility operators (requiring authorities) for decades. The NoR process results in
a designation being placed on land, with many recent high profile infrastructure projects
(e.g. City Rail Link, Transmission Gully, Waterview) having been enabled through the NoR
process.
Ministers of the Crown and local authorities are automatically requiring authorities under
Section 166 of the Resource Management Act 1991 (the RMA). Other network utility
operators (organisations that distribute gas, petroleum, geothermal energy,
telecommunications, electricity, water, wastewater, or which construct or operate roads,
railway lines and airports) have to apply for requiring authority status from the Minister for
the Environment (MfE). Not including those Ministers of the Crown and local authorities,
over 150 other organisations are currently listed as approved requiring authorities.1
Requiring authorities are required to have financial responsibility for a project, work or
operation that it is seeking to implement on land subject to a designation.
Designations (the key outcome from an NoR process) are often described as a form of ‘spotzoning’ over a site or route in a district or city plan that allows the requiring authority’s
works or project to go ahead without the need for land-use consents from the relevant
territorial authority. Once the designation is put in place, the requiring authority may do
anything allowed by the designation within the boundaries of the designation and the usual
1
MfE, July 2014
2
provisions of the district plan do not apply to the designated site. In other words, the
designation is like a spot zoning that that only provides for permitted activities.
History
Designations were first included in New Zealand planning legislation under the Town and
Country Planning Act 1953, with a similar regime included in the subsequent Town and
Country Planning Act 1977 (TPCA).
As noted in an Auckland Council designation guide, designations established under this
previous legislation often had broad descriptions with no or very few conditions, with most
public works and infrastructure undertaken by central and local government.2 The issues
associated with historic designations are discussed in more detail below in Section 3.1.
Part 8 of the RMA sets the framework for designations and the general approach of the
existing Part 8 provisions within the RMA has emerged from the Part 6 Requirements under
the TCPA, (Designations and Public Works provisions). Consistent aspects include:

A local authority issuing the recommendation followed by the decision from the
requiring authority itself,3 as well as the following other mechanisms which are still
present today, albeit slightly modified:

The interim effect of requirements/restrictions on the use of land subject to a
requirement;4

The ability for the requiring authority to alter a designation;5 and

Outline plans of works (OPW) to be submitted prior to construction.6
It appears that there has been little change to the legislation that controls the NoR process
over the years.
Issues
Designations are a planning tool made available to requiring authorities to enable the
development of infrastructure required for a “greater public good”. However, from my
2
Auckland Council March 2013, Draft Auckland Unitary Plan – Guidance (Part 7 – Designations)
3
Sections 118(5) and (6), TCPA
4
Section 120, TCPA
5
Section 123, TCPA
6
Section 125, TCPA
3
experience, there are a number of issues with the NoR process and varied practice regarding
how designations are dealt with under the RMA.
For example, while there are similarities between designations and resource consents, there
are also significant differences that practitioners are not always aware of that can lead to
inconsistent and bad practice which at times does not reflect well on our profession and can
potentially lead to unanticipated adverse effects such as blighting.
There are also a number of issues associated with the NoR process and implementation of
designations that we, as resource management practitioners need to be wary of when
involved in the NoR process and the implementation of a designation.
The following sections provide a discussion on a number of issues I have experienced acting
for both the requiring authority and the territorial authority.
The implementation of historic designations
The designation allowing effects that would not be considered acceptable
The time between when a designation is confirmed and when the designated works
commence can be significant, and is in some cases a number of decades.
Where this is the case, there is a risk that the associated designation conditions (if any) are
inconsistent with contemporary planning practice. Examples of this include:

References to superseded standards and practices; or

Conditions that do not address all relevant effects in a manner expected for the time
of implementation.
In these circumstances the designation can potentially allow effects on the environment
that, based on current practice, would not be considered acceptable.
The designation allowing effects that would not be considered acceptable
Complications can arise when an alteration to an existing historical designation is
undertaken. This is a common scenario as often the environment within which a designation
sits and/or the scope of the works or project subject to the designation, change over time.
When an alteration to a designation is proposed under Section 181(2) of the RMA, the
territorial authority may recommend the imposition of conditions under Section 171(2)(c).
While alignment with any existing designation conditions is ideal, contemporary planning
practice may require that any conditions upon the altered portion of the designation would
include references to updated standards and/or current industry best practices. Additional
requirements to address adverse effects that were not previously identified when the
designation was originally confirmed may also be necessary. However, the scope of the
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conditions recommended by the territorial authority must be limited to the scope of the
alteration (assuming the requiring authority does not intend to alter conditions through the
alteration).
The outcome can therefore arise where the requiring authority has a differing condition set
for the area of the alteration as opposed to the body of the primary designation. This can
then lead to subsequent difficulties for the requiring authority in terms of implementation
(e.g. contractors potentially having varying on-site requirements) and therefore also
enforcement issues for the territorial authority.
Poorly defined designation purposes
Many historical designation purposes are poorly defined and/or broad. For example, a
designation purpose for a water treatment plant may be stated as being “for water supply
purposes”. This type of designation purpose potentially provides significant scope for the
requiring authority in terms of what can be enabled through the designation, so from the
point of view of the requiring authority may be seen as a good thing.
However a broad or poorly defined purpose can lead to issues of interpretation and thus
potential disagreement with the territorial authority regarding what the designation does
actually provide for. For example, if the water treatment plant requires a new access road
to be developed, can that be considered to be “for water supply purposes”?
While an alteration to the designation would be required to amend the purpose of a
historical designation, interpretation issues can be minimised simply through a more
descriptive designation purpose, for example: “the construction, maintenance and
operation of the water treatment plant and its associated infrastructure for water supply
purposes”.
Inappropriate designation conditions
Further to the comments above, many historic designations have conditions which in
current practice would be inappropriate or insufficient. Examples are outlined below.
A lack of conditions to manage specific effects
Many historic designations are distinctly lacking in conditions, which in many cases may well
be a reflection of an evolving planning practice as a whole. Regardless, this does create a
distinct risk of significant adverse effects.
A case in point is a designation that may only include conditions relating to the construction
of public works. However, if the designation has a broad purpose (see comments above),
there is the potential for additional works (e.g. maintenance, further development of the
site involving activities that may generate significant noise, vibration etc.) never anticipated
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during the original NoR process to be enabled through that designation, with little or no
guidance on how effects are to be managed.
Conditions that essentially undermine the purpose of the designation
An example of where conditions undermine the purpose of the designation is where a
district plan includes a requirement for a designation to comply with district plan provisions
(e.g. the Auckland Council District Plan: Waitakere Section). There are a number of issues
with this scenario:

The designation may enable the removal of a protected tree, yet there is a rule in the
district plan requiring resource consent for the removal activity; meaning it is
impossible for the requiring authority to be consistent with that designation
condition. In other words, if the requiring authority cannot meet all permitted
standards, then it will not be meetings the designation conditions.

If it can be argued that obtaining resource consent for the protected tree removal
meets the conditions of the designation (which is questionable), then a question
should be raised regarding the value of the designation in the first place. The need
for a requiring authority to obtain resource consent under the district plan is
contrary to the rationale for holding a designation. Particularly so given that the
undertaking of enabling works, such as vegetation removal, can reasonably be
expected when giving effect to the majority of designations.
In both of the above scenarios, it is my experience that potential interpretation and
implementation issues can be dealt with through early communication between the
requiring authority and territorial authority to clarify expectations and mutually determine a
suitably pragmatic approach. However, it is my view that such a compromise shouldn’t be
required and in fact may well be inappropriate. This is important when considering the
process from outside of the perspective of the requiring authority or territorial authority.
The evolution of adaptive management and relationship with the outline plan of works
Adaptive management and designations
Adaptive management is a method utilised where the extent of potential adverse effects
may not be well understood as a result of, for example, the high potential for changes in the
receiver of potential effects. This is particularly relevant where the potential effects are not
anticipated to occur for some time.
Adaptive management provides an approach to the management of such effects that
reflects the potential for change. Through the setting of clear objectives and required
actions, adaptive management can be an effective effects management tool.
6
Adaptive management systems are generally incorporated into designations through
conditions which require the preparation and implementation of various management
plans. Management plans can cover a broad range of topics and can allow for activities to
be undertaken in a flexible and responsive manner provided that the clear objectives and
required actions are met.
The use of adaptive management systems as part of the designation process can provide
benefits to all parties involved, including:

Affected parties/the public can have assurance that certain requirements or
environmental ‘bottom lines’ must be met by the requiring authority;

The requiring authority, and its appointed contractor, are provided a degree of
flexibility with their methods in order to achieve these requirements; and

Under Section 176A, the territorial authority has a mechanism to review the
requiring authority’s proposed methods (within the OPW) to ensure it will achieve its
requirements, and can recommend the proposed methods are amended if required.
Adaptive management and the outline plan of works
The MfE’s guidance paper on designations succinctly explains what an OPW is, being ‘a
description of works that a requiring authority proposes to carry out on the designated site’,
which ‘often contain details that were not available at the time of the hearing.7
The general approach of requiring authorities providing an OPW prior to construction, with
the territorial authority able to request changes, has not altered significantly in decades;
with the previous TCPA provisions8 also requiring the OPW to show the height, shape, and
bulk of the works, its location, the likely finished contours, vehicular access, circulation, and
landscaping proposed.
However, the inclusion of ‘any other matters to avoid, remedy, or mitigate any adverse
effects on the environment’, whilst is a feature of the RMA, was not previously included in
the TCPA.
This requirement under section 176A(3)(f) of the RMA provides the territorial authority the
ability to request that the requiring authority provides details of any measures being
proposed to avoid, remedy or mitigate adverse effects. It does not however, require the
requiring authority to undertake any further assessment of adverse effects; nor require the
avoidance, remediation or mitigation of any adverse effects.
7
MfE, 2003, A Guide to Designations under the Resource Management Act 1991, page 9
8
Section 125, TCPA
7
The OPW process has been utilised in contemporary designation practice to provide the
mechanism for the delivery of adaptive management. As outlined within the Environmental
Protection Authority’s (EPA) decision on the Transmission Gully project,9 the proposed
approach of the requiring authority was to incorporate a number of their required
management plans (such as a Construction Air Quality Management and Plan and
Construction Noise and Vibration Management Plan) into their OPW under Section
176A(3)(f).
It is considered that the integration of adaptive management within the OPW process is an
effective approach, and clearly one deemed appropriate by the courts. However, with this
approach there is a risk that the assessment of potential adverse effects may be deferred to
the OPW process. Caution should therefore be taken through the NoR process where this
scenario could potentially arise as it could be considered that the decision making process
associated with the NoR is deferring an assessment of effects required to make a decision
on the NoR in the first place.
The relationship between the NoR process and the Public Works Act
Designations provide a mechanism for initiating the acquisition of land subject to a
designation, although the acquisition itself is undertaken under the Public Works Act 1981
(PWA). On this basis, requiring authorities have the power to limit private property rights
for their needs (e.g. to enable the development of a public works).
Where a person is directly affected by a NoR, compensation can be provided under Part 5 of
the PWA. Where land is acquired or taken for any public work; a market value will be paid
to the owner on the principle that they should be no worse or better off as a result of the
works.
The PWA also allows for compensation for land that suffers any ‘injurious affection’
resulting from the acquisition or taking of any other land of the owner for any public work.
This means any land retained by the owner (not required for the designation) that suffers an
adverse effect because of the designation, for example a severance or a reduction in
productive land area, can also be compensated for.
However, the PWA does not generally allow for those “outside of” a NoR who experience
‘edge effects’ (such as noise, vibration or visual effects) to receive any monetary
compensation for the effects caused by the presence of the designation or the activities it
authorises.10
9
EPA, 12 June 2012, Final Report and Decision of the board of Inquiry into the Transmission Gully Proposal, [177]
10
Under Section 63 of the PWQ there is a right to compensation in certain circumstances when no land is taken. However, this relates on
to substantial injurious affection caused by the construction of the public work (not the operation).
8
As part of the NoR process, the scale and nature of the various ‘edge effects’ on the
environment, including the direct effects on properties immediately adjacent to a
designation, are valid considerations which may require the requiring authority to
implement extensive mitigation (noise bunds, landscaped screening etc.) in the context of
(amongst other things) managing adverse effects on amenity.
However, any consequential change in the monetary value of these properties immediately
adjacent to a designation, which may result from the ongoing residual effects on amenity
caused by the designation, is not a matter that can be considered under the RMA. While a
decrease in property value is often a primary concern for the property owner, any change in
that valuation can only considered through the NoR process (which is an RMA process and
not a PWA process) in the context of managing effects of the proposed works and
designation on (mainly) amenity values.
Taking the above into account and to summarise, a person whose house is directly affected
(i.e. the property is within the boundaries of the NoR) by a NoR has recourse through the
PWA to receive compensation for the loss of their property. They can sell up, move on and
get on with their lives. The person who lives on the edge of the designation has no such
recourse for compensation. They may try to sell their property so that they can move on
with their lives but it is likely that the blighting caused by the designation will lead to a
reduction in the property’s value.
While there are many scenarios that would come into play (for example effects the
designation will generate) and every circumstance would be different, there is an argument
that can be made that those persons directly affected by a designation (and entitled to
monetary compensation through land acquisition) may in many cases be in a preferable
position to those affected by proximity to the designation.
Issue with Lapse periods
The ‘default’ lapse period for a designation under the RMA is 5 years.11 However, it is not
uncommon for designations, particularly for major infrastructure projects which will involve
long construction periods and require substantial lead in time to allow for the required
funding and/or design processes, to have a lapse period of 10, 15 years or more.
While providing flexibility to the requiring authority, an extended lapse period for a
designation can therefore be a very contentious and a highly deliberated issue at a hearing
for a NoR due to the potential social or ‘planning blight’ effects.
‘Planning blight’ is defined within the Oxford dictionary as: “The reduction of economic
activity or property values in a particular area resulting from expected or possible future
11
Section 184
9
development or restriction of development.” These effects generally relate to the
uncertainty for both directly affected landowners/occupiers and those adjacent to the
designation in terms of when property acquisition will occur, when works will commence
and how they will be affected by the works.
Many factors need to be considered when determining an appropriate lapse period. In
essence it is a case of balancing the reasons put forward by the requiring authority (e.g.
availability of funding) with the potential effects of the extended lapse period (e.g. planning
blight).
It appears in many cases that, where uncertainty exists with regards to the appropriateness
of measures to manage adverse effects, it is often the case that the territorial authority will
recommend a shorter lapse period as a form of mitigation. It is my view that this is not an
appropriate form of mitigation, particularly so given that the process in which a confirmed
designation’s lapse period can be extended is generally not a complicated process.
Under Section 184 of the RMA, within 3 months before the expiry of the designations lapse
period, a requiring authority can submit an application to the territorial authority to fix a
longer lapse period. The lapse period can be extended if the territorial authority determines
‘that substantial progress or effort has been made towards giving effect to the designation
and is continuing to be made’; which is a similar test to that for extending resource
consent’s lapse period under Section 125 of the RMA.
There is no direct guidance on determining whether a designation has been ‘given effect to’.
However case law12 on the meaning of giving effect to under section 12513 considers that
this is a question of fact and degree and will vary from case to case depending on the facts
and answers to questions such as:

What is the nature of the work being authorised?

What in fact has been done?

Why has it not been completed?
If the territorial authority deems that a designation has not been given effect to, it must be
satisfied that the requiring authority has made, and is continuing to make, substantial
progress or effort towards giving effect to the designation.
12
Goldfinch v Auckland City Council [1997] NZRMA 117 (High Court)
13
I note that this relates to a resource consent process and not a designation process
10
As determined in case law, ‘substantial progress’ also does not oblige the requiring authority
to have nearly completed, or even started, the physical works.14
Whilst Section 184 of the RMA provides the requiring authority additional flexibility and acts
as a good ‘back-up’ in the event of project delays and/or decisions to defer any physical
works, it conversely allows the prolonging of the potentially adverse effects of designations
and the associated uncertainty for affected parties. An application to extend a lapse period
under Section 184 is also a process which does not involve public notification.
Overall it is therefore considered important to recognise that having a short lapse date does
not, in itself, directly mitigate the adverse social effects of a designation.
In addition, given the potential for ‘planning blight’ effects to arise even within a ‘short’ 5
year lapse period, I consider this issue is best addressed through effective conditions which
help provide a higher level of certainty (for example ongoing engagement by the requiring
authority and project updates, and stakeholder input into the preparation of required
management plans).
Requiring authority decision making - change required?
Reform of the RMA’s existing designation provisions has been proposed before but has not
progressed significantly. As part of the National Government’s 2009 Resource Management
(Simplify and Streamline) Amendments, (phase one reforms), it was proposed, as part of the
intention of ‘Streamlining decision making’, to amend the RMA so that decisions on NoRs
would be made by the relevant territorial authority instead of a requiring authority so as to:

Align with other RMA processes,

Improve the timeliness of decision making (by removing a step in the process), and

Add to confidence in the independence and rigour of the decision making process.15
The Technical Advisory Group (TAG), who reported to the Minister for the Environment,
remarked that requiring authorities making decisions on their own NoRs “is even more
lacking in theoretical justification” at this point in time where many requiring authorities
“are private entities as distinct from Crown agencies”.16 The Minister also noted this
seemed “to run counter to the principles of natural justice”.
14
Body Corporate 97010 v Auckland City Council (CA 234/00)
15
Office of the Minister for the Environment, 2009, Reform of the Resource Management Act 1991: Phase One Proposals
16
Report of the Minister for the Environment’s Technical Advisory Group – February 2009
11
While I see sense with the reasons listed above in favour for a change, I consider there are
also sound reasons to retain the status quo, including the requiring authority’s need for
greater certainty in terms of outcomes given their important statutory obligations (for
example to meet the needs of communities with good-quality local infrastructure under the
Local Government Act17 and to contribute to an effective, efficient, and safe land transport
system under the Land Transport Management Act18).
Assuming the approach was reversed, it is also possible that any time benefits gained from
the territorial authority making the decision would then be negated by appeals by the
requiring authority on matters which they considered to be inappropriate.
Conclusions
The overall approach to NoRs and designations within New Zealand planning has not
changed significantly in decades, with much of the current RMA provisions reflecting the
predeceasing TCPA provisions. Notwithstanding this, it is considered the range of, and the
value placed on, resource management matters and considerations has expanded over time
to a point where RMA practices have evolved.
Planning practice has evolved considerably since the development of NoR legislation and in
many cases has evolved well beyond the legislation and appears to have adapted to address
the deficiencies in the legislation.
With this in mind, planning practitioners need to be cognisant of these legislation
deficiencies when looking at the management of NoR and designation processes,
particularly so when dealing with historic designations.
Designations have continued to be an effective and appropriate planning tool for requiring
authorities, but questions arise with regards to some aspects of the legislation which in
many cases does not sit well with other aspects of the RMA and other legislation.
I note that an overhaul of designation legislation was discussed previously, including the
proposal to take the decision making powers away from the requiring authorities in which
the Minister for the Environment’s stated in 2009 that there was “strong public outcry on
this current provision.” While I see no reason for such a change and consider it would dilute
the effectiveness of the NoR process, I am of the view that some level of wider reform is
warranted.
17
Section 10
18
Section 95
12
Bio
Andrew Cumberpatch is a Planner based in MWH’s Hamilton office with over ten years’
experience in the New Zealand planning industry. Andrew works nationally for a range of
local clients and has extensive experience with designations and resource consents
associated with major infrastructure projects from the perspective of both the requiring
authority/applicant and the territorial authority.
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