Special Circumstances or Business as Usual? Section 37A RMA in Practice
Introduction
Ordinarily, councils must process non-notified resource consents within 20 working days under the Resource Management Act 1991 (RMA). However, section 37A(4)(b)(i) of the RMA enables councils to extend these statutory timeframes where “special circumstances” exist. This flexibility matters because genuinely complex or unusual resource consents sometimes require extra time.
But in our experience, section 37A RMA is increasingly being invoked as a routine step, often with little reference to the statutory tests. When that happens, applicants bear the cost through delays, uncertainty, and the loss of statutory discounts.
What the legislation requires
Section 37A RMA directs councils to weigh three things before granting an extension. They must consider the interests of any person directly affected, the interests of the community in achieving an adequate assessment of effects, and the duty under section 21 RMA to avoid unreasonable delay.
These requirements make it clear that extensions should be the exception, not the norm. Relying on section 37A to manage workload or resourcing pressures is difficult to reconcile with what the legislation requires.
What it means for applicants
From an applicant’s perspective, routine extensions can have real consequences. Processing times are lengthened beyond 20 working days and this creates uncertainty for financing, contracting, and project delivery. The discounts regime is also undermined. The Resource Management (Discount on Administrative Charges) Regulations 2010 entitle applicants to up to 50% off fees for late processing, but when timeframes are extended under section 37A the lateness disappears and so does the discount.
In one recent case we worked on an applicant was initially granted a 12% discount for a two-lot subdivision and land use resource consent which took 55 working days to process, equating to $510. Following challenge this was corrected to the full 50% discount, which was about $2,125. The difference, around $1,600, shows how misapplication of section 37A can directly erode applicants’ statutory entitlements.
Although applicants technically have recourse through section 357 objections or judicial review, in practice the costs of these processes almost always outweigh the value of any discount lost. Even a full 50% discount rarely justifies the time and expense of pursuing it. At the same time many applicants receive only a short letter extending timeframes, with little evidence that the statutory tests have been applied. That lack of transparency makes it difficult to have confidence in the fairness of the process.
How practice varies
Some councils do show their working. Auckland, Tararua, and Greater Wellington have published memos explaining why extensions were granted and how statutory considerations were weighed. That sort of documentation helps build trust.
Elsewhere, however, practice is patchy. In many districts we see one-line notices with no reasoning at all. Internal correspondence obtained under LGOIMA shows council staff themselves acknowledging that their approach is “difficult to defend” and that clearer rules of thumb are needed, but those improvements have not always been finalised or shared.
Why the issue persists
There is very little case law on section 37A. That is not because the provision is uncontroversial, but because challenging a poor decision is rarely worth it. The cost of a section 357 objection or judicial review almost always exceeds the discount at stake. Without external checks, practice drifts and applicants carry the risk.
At the same time, many applicants are unaware of the discounts they are entitled to and do not realise they can challenge fees where applications are processed outside statutory timeframes.
A case for national consistency
Section 37A is a national tool and should be applied consistently across the motu. Right now, an applicant in one district might receive a reasoned, transparent decision, while another elsewhere may get only a cursory letter. That variability is unfair and undermines trust in the system.
Rather than waiting for Ministry for the Environment intervention, industry practitioners could take the lead, working collectively through LGNZ, SOLGM, or the New Zealand Planning Institute. Shared guidance could define what counts as genuine “special circumstances,” require written documentation showing how the statutory tests were weighed, and make clear that workload management is not a valid use of section 37A.
The Quality Planning website would be a good platform for this information, it if is still updated. In particular, it could better explain how applicants may challenge consent processing fees when statutory timeframes are not met. Guidance could set out how section 37A interacts with the Resource Management (Discount on Administrative Charges) Regulations, and what steps applicants can take if they believe discounts have been wrongly withheld.
Conclusion
Section 37A should be a safeguard, not a shortcut. National guidance would help ensure it is used appropriately, strengthening public trust while also reminding us as planners of our ethical duty to uphold natural justice and treat applicants with integrity. When use of section 37A becomes routine, applicants lose time, money, and confidence in the process. With little case law and limited recourse, the problem will not fix itself.
National guidance, developed collaboratively by practitioners, would also give applicants the information they need to challenge unfair and incorrect time extensions. Such guidance would strengthen both applicant confidence and public trust in the planning system, while holding us to account as practitioners.