“As we have discovered, there is a wide variation in how councils manage refunds; Some specify that deposits are non-refundable or reserve complete discretion, others charge fees and others withhold.”
In a follow up to my piece in the Friday Flash about Tasman District Council refusing to refund any amount under $42.50, we’ve found a bunch more councils doing similar and in a couple of cases, keeping even more of the change.
With a bit more digging, I’ve found the following councils retaining partial deposits for consent applications – the list probably isn’t exhaustive:
- Tauranga $50: user-fees-charges.pdf (tauranga.govt.nz)
- Rotorua Lakes $87.50 (.5 of a charge out rate): Fee-and-charges.pdf (rotorualakescouncil.nz)
- Tasman $42.50 (up from last year $20)
- Dunedin $25: Resource consents – Dunedin City Council
- QLDC $100: 1b-att-b-planning-engineering-fees-other-charges.pdf (qldc.govt.nz)
- Waikato District Council: $25 https://www.waikatodistrict.govt.nz/docs/default-source/your-council/fees-and-charges/fees-and-charges-2021-2024-pdf.pdf?sfvrsn=89e093c9_12
- Environment Southland: $50
- Waitaki District Council: $100 Planning and Resource Consents | Waitaki District Council
- Selwyn District Council: $50: Schedule-of-chargeable-costs-ERS.pdf (selwyn.govt.nz)
- Environment Canterbury: $28.75: FeesandChargesPolicy.PDF
Other councils charge for issuing refunds:
- Waipa District Council – $23 fee for issuing a refund for an overpayment in rates and/or user fees and charges.
- Waitomo District Council – $50 administration fee for most type of refunds.
- Otago District Council – $25 refund administration fee.
The rest of the councils either don’t mention refunds, say deposits are non-refundable, reserve discretion to refund and/or require applicants to apply for refunds. Clear as mud, right?!
Here is some context around consent fees:
Under s36 of the RMA, councils can fix ‘administrative charges’ for carrying out any council functions relating to consent applications. Those charges must be for specific amounts, or amounts determined by reference to scales or other formulae (e.g., staff hourly rates).
Section 150 of the LGA sets out how councils must fix these charges. Section 83 of the LGA specifies that councils have to follow a special consultative procedures (i.e. a LTP or Annual Plan consultation). The charges must be set out in a schedule of administrative charges and published by the Council. They can’t be changed, unless by another LTP or Annual Plan consultative process.
Where a fixed charge is inadequate to enable a local authority to recover its ‘actual and reasonable’ costs associated with a resource consent application, a council may require the applicant to also pay an additional charge for the council’s work. However, any additional charge is subject to a whole series of processes under the RMA to facilitate scrutiny of such additional charges, including the right of an applicant under s 357 to object (to the Council) about any additional charge, or to Appeal to the Environment Court. There is a whole string of case law around what ‘actual and reasonable’ cost is.
The legislative framework exists to ensure there are appropriate checks and balances against the abuse of power. If a council’s fixed charges (i.e., resource consent deposits) are set too high, and charges are partially retained, consent applications end up being a de facto revenue gathering exercise and arguably an abuse of power.
As we have discovered, there is a wide variation in how councils manage refunds; Some specify that deposits are non-refundable or reserve complete discretion, others charge fees and others withhold random amounts for administrative purposes.
Feds is not sure which approach is worse. At least TDC tells applicants it will keep $42.50, some councils just keep quiet, so you have no idea. We doubt this is what legislators had in mind when drafting those checks and balances in the RMA and LGA.
Feds cannot see how Queenstown Lakes, or Waitaki, can possibly justify retaining $100. Do they have gold-plated admin services? In the age of electronic banking systems, when money can be transferred between accounts on the spot, why are we even having this conversation? It makes you lose a bit of faith in the efficiency and transparency of local government.