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Direct Referral Guidance Note

Abstract

This note provides guidance on the direct referral process to the Environment Court for notified resource consent applications, notices of requirement for designations, and heritage protection orders. The key provisions of the Resource Management Act 1991 (RMA) which provide for direct referral include sections 87C to 87I for resource consents and sections 198A to 198M for notices of requirement and heritage protection orders.

Guidance note

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Introduction

This guidance note has been prepared to help practitioners, including council officers and applicants, understand the new direct referral process to the Environment Court introduced by the Resource Management Amendment Act 2009. The key provisions of the RMA which provide for direct referral are sections 87C to 87I for resource consents and sections 198A to 198M for notices of requirement and heritage protection orders.

A separate information sheet has been developed to help the public understand the process, especially in their role as potential submitters.

This guidance note has been reviewed by the Ministry of Justice and reflects their current position. However, in time, as more of these cases proceed through the Environment Court, the Ministry of Justice will likely produce separate but complementary guidance on the direct referral process as it more specifically relates to the Environment Courts duties and functions. This guidance note will also be amended as practice evolves.

Given that resource consent applications make up the highest percentage of approvals sought nationwide, the guidance note focuses on the direct referral process for resource consents rather than the process for notices of requirement and heritage protection orders. While the direct referral process for notices of requirement and heritage protection orders is largely identical to that of resource consent applications, including timing, different parts of the RMA apply and the sections relevant to consents and notices of requirements have slight wording differences. While this guidance note focuses on the direct referral process for resource consents, it does provide general guidance on the notice of requirement and heritage protection order direct referral process.

What is direct referral?

Direct referral allows applicants to make a request to a council for certain types of notified applications to be directly referred to the Environment Court for a decision, bypassing the council hearing stage.

The direct referral process streamlines decision-making for large scale and/or complex applications that are likely to end up in the Environment Court on appeal, saving time and costs for both applicants and submitters.

Before a decision is made by the council on direct referral, the application progresses in the standard way, ie, the application is lodged, a decision is made as to whether or not the application is notified and there is a submission period (ie, sections 88-98 of the RMA apply). 

An overview of the direct referral process is provided in the attached flowchart (PDF, 118KB).

What type of applications can be directly referred?

The direct referral process only applies to notified applications (including limited notified).  Sections 87C and 198A of the RMA specify the types of notified applications which can be requested to be directly referred to the Environment Court. They are:

The direct referral process does not apply to alterations to designations under s181(3).

The direct referral process is separate to the call-in or referral process that applies to matters of national significance. If the Minister for the Environment considers that a proposal is a matter of national significance and it is called in under section 142(2), or lodged with the Environmental Protection Authority (EPA) under s145 of the RMA, then the direct referral provisions no longer apply and the application follows the consenting path for nationally significant matters. For example, the Minister may refer a matter of national significance to the Environment Court for a decision.  This is not to be confused with the direct referral process. Refer to the Environmental Protection Authority (EPA) website for further information on the decision-making process for proposals of national significance.

Requesting direct referral

Who can make a request for direct referral?

Only the applicant, or their agent, can make a request to the council for an application to be directly referred to the Environment Court.

There may be instances where a proposal either crosses territorial boundaries or requires both regional and district approvals and applications need to be made to more than one council. In such a case, the request for direct referral should be made to all relevant councils simultaneously. For example, Lyttelton Port Company Limited (LPCL) applied to both Environment Canterbury and Christchurch City Council for the consent applications for their land reclamation and port expansion project to be directly referred. LPCL’s agent prepared a single request for direct referral and addressed it to both Environment Canterbury and Christchurch City Council. Where practicable, the document should be lodged in person or sent electronically on the same day so the direct referral processing ‘clock’ begins on the same day for each council.

To ensure the council is aware of a pending request for direct referral and to allow councils to coordinate with each other where necessary, the applicant should warn council(s) about the request and discuss the process with them.  This will also help the applicant clarify information requirements and understand the process. The applicant should also strongly consider engaging a resource management lawyer and/or planning consultant at this point to act on their behalf if they have not already done so.

When can a request for direct referral be made?

A request for direct referral can be made to the council any time from the day on which the application is lodged, up until five working days after the closing date for submissions on the application.

The council must return the request for direct referral to the applicant without making a decision on it when the council:

While the council should be made aware of a pending request, the applicant may choose to wait at least until the application has been notified before formally requesting direct referral. Furthermore, waiting until after the closing date for submissions to request direct referral allows the applicant to analyse any submissions received and consider whether direct referral to the Environment Court is still the best route for the application. For example, opposition to the application may not be as great as expected and there may be a reasonable chance that the matter could be resolved in a council hearing without appeal.

Conversely, if during the course of the submission period it is clear that the matter would best be referred to the Environment Court for a decision, the applicant may wish to proceed with the request for direct referral sooner, such as during the period for receiving submissions. An earlier request allows the council to prepare for and progress the matter more quickly. The timing of the direct referral request will be a judgement call by the applicant, ideally in discussion with the council.

How must a request for direct referral be made?

The request for direct referral must be made either electronically or in writing using the form in the Resource Management (Forms, Fees, and Procedure) Regulations 2003 as a template (Form 8A (PDF, 61KB)). This form is not yet incorporated in the Regulations and therefore a draft form has been attached in the meantime.

The following information needs to be provided to the council:

The direct referral request made by LPCL (PDF, 301KB) to Environment Canterbury and Christchurch City Council is an example of a request made in accordance with Form 8A (PDF, 61KB).

The council decision on direct referral

The council has full discretion in deciding whether to grant or refuse a request for direct referral. Submitters do not have a right to be heard by the council about a request for direct referral.

If the council receives the request for direct referral before it has determined whether to notify the application, the council must defer its decision until the decision on notification is made. If the council decides not to notify the application, it must return the request.

If a request for direct referral is made before the council has determined whether or not the application will be notified, and the council subsequently decides to notify the application, the decision on direct referral must be made by the council within 15 working days after the notification decision. Otherwise, the decision on direct referral must be made within 15 working days after the council receives the request, ie, when direct referral is requested some time after the application has been notified. The 15 working day timeframe for making a decision highlights the need for councils to have their delegations and processes clearly defined so they can quickly consider a request.

The level at which to delegate the decision on direct referral is at the discretion of each council. For example, a council may choose for the decision to be made by a delegated officer (ie, a director/manager), a council committee, or an independent hearings panel.

There are no criteria in the RMA to guide councils in making a decision on direct referral.  Councils may choose to develop their own criteria or guidelines help their decision-making, subject to the requirements of natural justice, and having regard to the purpose of the RMA, including other matters in Part 2. For example, Environment Canterbury developed criteria (PDF, 41KB) to help it make its decision to directly refer the LPCL application. Criteria can be a useful tool for councils to guide decision-making, promoting consistency and clarity.

The RMA does not specify the information required to be included in the council decision on direct referral, other than a requirement to give reasons if a request for direct referral is refused. The decision will be shaped by the particular application considerations and the level of council at which the decision on the application was made. Again, the requirements of natural justice apply. Below are links to examples of councils’ decisions on direct referral for reference:

For applications to more than one council, each council should decide on direct referral separately as each may have different processes and delegations in place and the different consent application types may necessitate different considerations. The councils must communicate with each other and, wherever possible, agree upon the decision on direct referral to avoid complicating the process for the applicant (ie, prompting an objection to a decision) and to facilitate an integrated approach between councils.

If the council declines a request for direct referral, it must provide the applicant with reasons for declining the request, either electronically or in writing, and the reasons must be issued at the same time as the decision. An applicant can object to the refusal of a request for direct referral.  Refer to the next section which explains the objection process.

If the council grants the request for direct referral, the applicant must be advised of the decision and the council must prepare a report to the Environment Court – refer to The council report section. The applicant then has the discretion whether to proceed with direct referral or not. Refer to If direct referral is granted can an applicant then decide not to proceed to the Environment Court?

Although not a requirement of the RMA, if the decision on direct referral is made after the close of submissions, the council should also notify the submitters of the decision on direct referral and advise them of the implications for their involvement in the process. Refer to the section What is the submitter’s role at the Court? for an explanation of the submitters role in the direct referral process which may assist in formulating a letter to submitters. Christchurch City Council has also prepared a letter to submitters (PDF, 93KB), which is a good starting point and the Ministry for the Environment’s information sheet for submitters may also be helpful to include with any correspondence to submitters.

Objections to the council decision on direct referral

If the council declines a request for direct referral for a resource consent application, the applicant can object under section 357A(1)(e) of the RMA. An applicant can object to decisions to decline direct referral applications for requirements under section 357(8). The decision on the objection is solely at the discretion of council.

Councils should establish clear policy and/or delegations about who considers the objection. Preferably the decision should be made by independent person(s) and not by the person(s) who made the initial decision to refuse the request.

If the objection is successful and the original decision to decline the direct referral request is overturned, then the application proceeds as if direct referral was granted: ie, the council prepares a report for the Court.

Conversely, if the objection is not successful, the application is processed by the council in the usual manner for such applications. The applicant may choose to withdraw the application or amend it. If the application is amended, it may need to be re-notified.

The RMA does not expressly provide for appeals to the Environment Court against refusals to change a decision on direct referral following an objection. However, an applicant could seek judicial review of an objection decision.

Initial liaison with the Environment Court

If the request for direct referral has been granted by the council, the council should advise the Environment Court about the application as soon as possible after the request has been granted. The council should advise the nearest Environment Court Registrar (Auckland, Wellington or Christchurch). This notice will help the Environment Court plan and prepare for the receipt of a direct referral application should the applicant continue with direct referral.

Councils should identify a key contact person to liaise with the Court. This could be an administrative role but the administration officer will likely need input from specialist planning and/or legal staff with knowledge of the direct referral provisions in the RMA and the application. Alternatively, the council officer responsible for the report or the council’s legal counsel could undertake this role. The key is to have one lead contact person the Court can deal with who has sound knowledge of the process or at least access to that knowledge.

Once the Court has been advised of the direct referral application, the Court Registrar and/or a Court case manager will liaise with the council and the applicant about information requirements and the process. The Court will likely ask the council for a list of submitters, their contact details, their position on the application (support, opposition or neutral), and whether they wish to be heard. The Court has prepared an example excel spreadsheet (XLS, 17KB) for councils to use for providing these submitter details. This information will help the Court to gauge the size of the hearing and enables the submitters’ information to be transferred directly to the Courts database for future correspondence. While the Court will likely establish a formal practice in time, this spreadsheet system will be used in the meantime.

Section 87G(3) requires the council to provide the Court with a range of information following the lodgement of the notice of motion with the Court, including submitters’ information. However, the Court would appreciate receiving information on submitters at the earlier stage in the form of the above-mentioned spreadsheet. While there is a risk that the application may not proceed to the Court, the benefits of supplying this information early to the Court so that it is prepared for the case outweighs this risk.

Also, before the notice of motion is lodged and the case formally proceeds before the Court, the Environment Court Registrar and/or case manager may request a meeting with the council representatives (reporting officer, legal counsel etc) and possibly the applicant. The intent of this meeting is to discuss the council’s progress with the report, the process up until the notice of motion is lodged, and the logistical and administrative steps involved.

The council report

If the council grants the request for direct referral it must then prepare a report for the Court on the application.

Content

The council report should be similar in nature to a section 42A hearings report and should be a statutory assessment of the application. The primary purpose of the report is to provide the Court with a report setting out the context of the application, the local environmental issues, and an assessment against the relevant planning instruments, given the council is the best placed to provide an assessment of those matters.

Section 87F(4) of the RMA states that the council report may address the issues set out in sections 104 to 112 of the RMA (decisions on applications) to the extent that they are relevant to the application, and suggest conditions that it considers should be imposed if the Environment Court grants the application. Even though it is not mandatory to address these matters, councils should address the relevant sections from 104 to 112 to help the Court identify the relevant statutory provisions and identify and narrow the issues in contention. Including draft recommended conditions of consent is also highly advisable given the council is ultimately responsible for the compliance and monitoring of any consent granted by the Court.

The council report should include a summary of the content of the submissions, preferably broken down by topic, eg, traffic, noise, landscape. While the Court will review the submissions, a breakdown by topic provides an overview of the issues for the Court and is helpful for mediation purposes should mediation occur. The summary of submissions will also ensure the matters raised in submissions are brought to the Court’s attention, regardless of whether the submitters wish to be heard and appear in person before the Court or not.

There is divided opinion amongst practitioners about whether the report should include a recommendation that the consent either be granted or declined. Some consider that the council report should not include a recommendation as the council is not the decision-maker and this is the Court’s function. Other practitioners consider there is no issue with providing a recommendation as there is no obligation for the Court to follow it and the recommendation is a logical conclusion to the assessment in the report.

A recommendation to decline or grant consent is typically contained in an officer’s s42A report for a council hearing and so providing a recommendation is consistent with that approach. In addition, should for any reason the applicant not proceed with direct referral and the processing of the application falls back to council, then the council officer’s overall conclusions are indisputably clear to the applicant. Yet, ultimately, the inclusion of a recommendation is at the discretion of each council.

For applications to two or more councils, it is expected that in some cases, each relevant council will produce its own report to the Court as producing a combined report is not always practical and feasible. However, where possible, joint reports and conditions agreed by all the relevant councils are preferred to help ensure consents are approached in an integrated and comprehensive way.

Over time, it is expected that the Environment Court will form a clearer view as to what the council report should contain. The Rodney District Council report (PDF,  5.9MB) on the Progressive Enterprises’ direct referral application provides a comprehensive example which includes the above mentioned components, including a recommendation. The disclaimers on the first page of this report clarify that the report sets out the advice of the reporting planner, that the recommendation is not a decision, and that the decision will be made by the Environment Court. The disclaimers are considered to be a practical inclusion to ensure submitters in particular are clear about the role of the report and to ensure that, when the report is referred to or viewed at any time in the future, that it’s role and function is clear.

Structure of the report

Background reports from other council officers and consultants should be appended to the main report, to enable each officer or expert in their field to present separately to the Court when and if required and to respond to any cross examination on their subject matter. The main report could also include a summary of these reports in the assessment section.

Approval of the council report

Each council needs to decide at what level direct referral reports should be signed off.  It is recommended the report be signed off by a council officer rather than elected members or other parties representing council. This is because the report is akin to a s42A report, which needs to be checked mainly for technical correctness, and sign off at officer level is likely to take less time.

Timing and distribution of the council report

The council must prepare the report within the longer of the following periods:

The council must provide a copy of the report to the applicant and every person who made a submission on the application as “soon as is reasonably practicable after the report is prepared”. While this timeframe is not defined in the RMA, it is important that councils make distribution of the report a priority once completed.

A hard copy of the report should be posted. Alternatively, the report could be distributed electronically where possible and should be posted on the relevant council’s website.  Most council websites have a section devoted to notified applications. There may be the potential for submitters to indicate to council what form they would like to receive correspondence in (electronically and/or hard copy) when making their submission.

For applications to two or more councils, the timing of the sending out of the reports should be coordinated (if separate reports are prepared). The applicant has only 10 working days to lodge the notice of motion from the date the council reports are received and will want to lodge one notice of motion to cover all of their applications. Therefore, ideally, the reports should be received at the same time by the applicant to help the applicant meet this timeframe. Generally, the regional council would take the lead and coordinate sending out the report(s) and transferring all information to the Court. A dedicated administrative resource for each council is recommended to coordinate the process. 

What status and role does the council report have?

The Court expects the council to be involved in the Court proceedings given they have the most knowledge of the application and its background, and ultimately will need to administer the consent if it is granted. Council’s role at the Court is discussed further in the Environment Court process section below.

The Court sees the council report as a preliminary ‘scene setter’ which can later be developed into briefs of evidence to be presented to the Court during the hearing.

Are the s37, s37A and s92 provisions available to the council?

The section 37, s37A and s92 provisions of the RMA are available to the council up until the time that the notice of motion is lodged with the Court. The provisions apply at all stages of the processing of the consent, ie, from the time the consent is lodged until the time it is transferred to the Court for processing. Once the matter is with the Court the provisions in Part 11 relevant to the Environment Court apply.

If significant further information is required during the writing of the council report, the council should request further information subject to s92 to fill significant information gaps. New issues may also arise out of submissions that need to be addressed by way of further information. The Court would prefer to receive a report that is as complete as possible without information gaps. This is in the interests of having a Court hearing that is as efficient and timely as possible; it is also in the interests of the applicant to minimise the risk of the consent being declined.

However, given the council will also be providing evidence before the Court, less significant information gaps could be dealt with by way of comment in the council evidence on the need for further detail, allowing for the applicant to respond in the course of the usual evidence exchange process. When and how to address further information requirements will be a judgement call made on a case-by-case basis.

If a s92 further information request is made after the close of submissions, the council has the ability to stop the clock only once (s88C(1)).

If direct referral is granted can an applicant then decide not to proceed to the Environment Court?

If a request for direct referral is granted, the applicant may still decide not to proceed to the Environment Court. The applicant should advise the Court Registrar and/or case manager and the council if the application is not proceeding to the Court.

If the application does not proceed to the Court, the application must be determined by the council. Any council hearing must be held no more than 15 working days after the date on which the council is advised that the applicant is not intending to pursue direct referral (s101(2)(a)). This is a relatively tight timeframe for councils to prepare for a hearing and therefore it will be important to act quickly should the application fall back to the council. This makes it important for the council to form good communication links with the applicant to try and be as prepared as possible for such an eventuality and it may also be feasible to set aside reserve hearing dates. The council may also wish to appoint a reserve hearings panel.

If a hearing is not held, notice of the council’s decision must be given within 10 working days after the date on which the council is advised that the applicant is not intending to pursue direct referral (s115(5)).

If the applicant decides to withdraw the application after the notice of motion has been filed with the Court, but the applicant still wishes to pursue the development, then the applicant will need to lodge a new application with the council.

The Environment Court Process

Notice of motion

Once the applicant has received the council report prepared under s87F(5), and the applicant wishes to proceed with direct referral, the applicant needs to lodge a notice of motion with the Court within 10 working days of receiving the council report.

Section 281 of the RMA does not expressly allow for the Court to grant waivers for notices of motion which are lodged late. Therefore, if the notice of motion is not lodged within 10 working days, the application will not proceed to the Court and will fall back to the council for a decision. The applicant is also required by section 87I to advise the council if they do not intend to lodge a notice of motion with the Court.

The notice of motion must be lodged in the prescribed form specifying the orders sought and the grounds upon which the application is made.  Refer to Form 32A Notice of Motion (PDF, 60KB). This form is not yet incorporated in the Regulations and therefore a draft form has been attached in the meantime. A supporting affidavit about the matters giving rise to the application also needs to be included with the notice. The applicant’s legal adviser will generally format the affidavit. The applicant must lodge the original and one copy of the notice and supporting affidavits with the Court. However, the applicant is encouraged to liaise with the Court Registrar and/or case manager to see whether additional copies would assist the Court, ie, if commissioners are also appointed by the Judge, extra copies of the documentation would be beneficial to the Court. Currently, the Court filing fee payable by the applicant is $55.00.

At this stage it is advisable to indicate to the Court whether the applicant is interested in mediation.

In the Progressive Enterprises Limited case, which was referred to the Court by Rodney District Council (ENV-2010-AKL-000059), the Environment Judge issued a minute (PDF, 492KB) stating that the Court does not appear to have any discretion to refuse a notice of motion lodged for direct referral. The Judge noted that the notice is to set out:

In this case, the Judge commented that the affidavit lodged by Progressive Enterprises in support of the notice of motion did not address any of the preliminary steps under ss87C to 87F of the RMA as it should. The Judge required the applicant to file a further affidavit addressing the matters under s87C to 87F. Progressive Enterprises Limited’s original notice of motion and revised affidavit (PDF, 1.76MB) can be viewed here.

The Judge also noted that the notice does not address the implications of s274 and the role of the council. This is discussed further in the sub-section Section 274 and the role of the council.

As soon as reasonably practicable after lodging the notice with the Court, the applicant must serve a copy of the notice and affidavit on the council(s) that granted the direct referral request and every person who made a submission to the council on the application. The applicant must also tell the Court Registrar when these copies have been served on these parties.

The Court will work with the applicant to remedy any issues with the format or content of the notice that are evident to the Registrar.

Section 274 and the role of council

There is no provision in the RMA that makes it compulsory for the council to be a party to the Court proceedings. However, in the Rodney District Council case, the Environment Judge reached the conclusion that the intent of direct referral is that the council is a party under s274 and must be represented at the hearing, and therefore directed that Rodney District Council be a party to proceedings. The Council has a substantial amount of knowledge about the application to share with the Court and, ultimately, will need to administer the consent if it is granted.

In the Rodney District Council case, the Council automatically became a s274 party and did not need to lodge a s274 notice. However, there is benefit in lodging a s274 notice as it will document and help clarify the council’s position with respect to the proceedings. This is especially the case if the council is appearing in more than one role before the Court, such as in a consent applicant role and a consent authority role.  Refer to the Environment Court template s274 form – Form 33.

Transfer of information from the council to the Environment Court

Once the council receives a copy of the notice of motion and affidavit served on them by the applicant, the council must provide the Environment Court with the following information:

Section 87G(3) states that the council must provide this information to the Court ‘without delay’. Again, while ‘without delay’ is not defined in the RMA, this information should be transferred as quickly as possible so as not to hinder the applicant or the Court process.  Preparation for this information transfer should ideally begin before the applicant lodges the notice of motion. There is a small risk that the applicant may not continue with the application to the Court, but maintaining open lines of communication with the applicant should minimise this risk.

The Court Registrar and/or case manager will liaise with the council to determine the format of this information (ie, hard or electronic copy) and the most practicable way to transfer it to the Court. The Court also needs to act promptly to avoid any unreasonable delay.

Where will the Court hearing be held?

Section 271 of the RMA requires the Environment Court hearing to be held as near to the locality of the subject matter to which the proceedings relate as the Court considers convenient, unless the parties otherwise agree.

The applicant, submitters or the council may request where the Court hearing is held, although the final location is at the Court’s discretion. It is likely the Court will seek to hold the proceedings in a Court room wherever possible, as all of the technology, security, and other resources are readily available to the Court. However, the ultimate location of the hearing is heavily reliant on the location of the subject matter and the estimated numbers of people to attend the Court hearing.

The Court is responsible for disseminating information to all parties about the hearing location and timing. However, it would also be helpful for the council to make this information available through their website or some other means.

Environment Court case management

Once the notice of motion is lodged an Environment Judge will be assigned to the case and a case manager from the Court will be formally appointed. The key features of case management include:

The Environment Court website contains more detailed information on case management.

The Environment Court has indicated the intention to contact all submitters with information about the proceedings and to advise them of the need to file a s274 notice with the Court should they wish to be a s274 party (Form 33). There is no filing fee for becoming a s274 party.

Pre-hearing conference

It is likely the Court will expect the applicant to take a proactive role in progressing proceedings. If the parties cannot resolve issues then there may be a pre-hearing conference, either initiated by the Court or the parties (s267). A pre-hearing conference will ensure preparations are made for efficient, fair and ordered Court proceedings. The Court also occasionally uses the term ‘status hearing’ for a pre-hearing conference.

Any party who will be involved in the hearing should attend the pre-hearing conference or be represented by another person. At this meeting, directions may be given about preliminary questions, delivery of statements of evidence, and the timing and duration of the case.

Mediation

Currently, the Court expects that the majority of applications on appeal to the Court proceed to mediation. The Court has indicated that this is also the expectation for direct referral cases. Mediation can help parties identify common ground and define, narrow and resolve issues, which may negate the need for a hearing, or at the very least, reduce hearing time.

The timing of any mediation proceedings will be at the discretion of the Environment Judge. However, it is expected that mediation will not occur until the council report and the Court has read submissions, so the Judge has a clear idea of the topics for mediation. The Environment Court website contains useful information on alternative dispute resolution and the mediation process. The Ministry for the Environment’s An Everyday Guide: You, Mediation and the Environment Court also contains useful information about the mediation process.

Expert witness caucusing/conferencing

The Court may also consider expert witness caucusing/conferencing, which it is increasingly using and promoting. The Court may direct that groups of expert witnesses confer to try to agree on matters in their field and to narrow the issues in contention. If and when this occurs in the proceedings is at the discretion of the Judge, but it generally occurs after the exchange of primary statements of evidence. The Environment Court practice note contains greater detail on expert witness caucusing/conferencing under the sub-heading Directions to confer.

What is council’s role at the Court?

Potentially, councils can have a role as an applicant, and/or submitter and/or provider of expert witnesses/technical advisers or any combination of those roles at the Court. The council’s role as a s274 party is also addressed above. This is an unusual situation for councils to be faced with which potentially presents conflicts. It is therefore important that the council roles are given thought to and defined early on and documented as to which staff, consultants and/or independent experts will be fulfilling each role. Possibly different delegations will also be required.

A particular area of difficulty is when a council may want to submit on an application.  This is a similar scenario to the situation councils find themselves in when they are dealing with applications they have made themselves. As with those scenarios, the council should clearly convey which ‘hat’ they are wearing in the various documents they submit to the Court and other parties. This enables the Court to determine what weight to place on those documents and avoids any sense that the council is not being entirely transparent, or is obtaining any advantage due to its position as consent authority.

If the council is a witness, it is likely the Court will expect the council to behave as a typical respondent as if the proceedings were an appeal case before the Court.

The Court also expects council to have legal representation. If the council has different and conflicting roles/positions at the hearing (ie, consent authority and submitter with different views) then separate legal counsel and expert advisers is advisable.

The Court currently supports the idea of a primary planning report with expert reports attached as outlined in the Structure of the report subsection. This approach makes it clear which expert contributed to the council report and easily allows for individual briefs of evidence to be developed. The Court has indicated that each of the people who have contributed to the report should be made available to the Court to participate in the proceedings.

The Court may also call on the council witnesses to comment on any recommended consent conditions contained in the report and other recommended conditions which may emerge during the course of the hearing.

The order of proceedings will be outlined at the start of the case by the Judge, which will include when the officer’s report will be heard.

A further issue for councils in appearing before the Court are the costs involved. Refer to further discussion on costs in the Costs and cost recovery section.

What is the submitter’s role at the Court?

One key difference between a council hearing and a Court hearing is that submitters need to lodge a s274 notice in order to be involved in the Court proceedings (eg, pre-hearing conference and mediation), including appearing before the Court and speaking to their submission or evidence. If a s274 notice is not lodged, a submitter or anyone engaged to act on their behalf may not participate in the Court proceedings.

However, if the submitter does not lodge a s274 notice, their written submission will still be considered by the Court as it is part of the information transferred from the council to the Court and the submissions should have been summarised in the council report.

The need to lodge a s274 notice to be involved in the Court proceedings makes it important for submitters to give early thought as to whether they would like to speak to their submission or evidence before the Court or have others do it for them and be well prepared for this. If there are other submitters with the same issues, submitters may want to prepare and present a joint submission and have combined legal and expert representation, if required, to potentially save on both time and costs. If developing an original submission into evidence, the evidence needs to be within the scope of the matters raised in the original submission and the s274 notice.

In the Rodney District Council case, the Court advised submitters of the need to lodge a s274 notice and gave them a deadline for lodging the notice. The council could also advise submitters of this requirement when they send out the council report, although the actual date for lodging the notice (15 working days from the proceedings beginning) would not be known at this point. Ultimately, it is the responsibility of the Court to advise the submitters (as mentioned in the Environment Court case management sub-section), but the council should assist the Court where possible.

The implications of being a s274 party before the Court differ to those of being a submitter before a council hearing. A key implication is that s274 parties may be potentially liable for costs. However, the likelihood of a s274 party being found liable for costs is considered low. Costs are further explained in the Costs and cost recovery section. 

Being a s274 party does not necessarily mean there is an obligation to present a submission, produce evidence or cross-examine; however, there is the ability to do so. It also provides a right to participate in resolutions such as consent memoranda.

Further information for submitters on the Court process is contained in the Information Sheet on the Ministry for the Environment website. The Environment Court website also has useful Guidelines for litigants in person about the Court procedure, including useful guidance on how to set out written statements of evidence.

Cross examination of witnesses

Cross-examination is not permitted in council hearings. However, before the Environment Court, all parties, including lay parties, have a right to cross-examine and may be subject to cross examination themselves. Nobody can be precluded from cross-examination; however the Judge will keep an order to proceedings to avoid time wasting and repetitive questioning.

The Environment Court decision

The Environment Court will issue the decision on the application to the applicant, the council(s), and all submitters by post. In some instances, the decision may be issued in the form of a CD_ROM. The Court may include supporting information with the decision and may refer to the relevant parts of the Court website.

Appeals from the Environment Court decision

Appeals from the Environment Court’s decision can be made to the High Court by the applicant and any party, but only on points of law and not findings of fact or decisions on the merits. Legal advice is recommended before considering an appeal.

Monitoring and enforcement of the decision

Once the Court issues its decision, the council becomes responsible for monitoring and enforcing the consent(s). Therefore, the council should recommend enforceable consent conditions within the s87F(5) report that is transferred to the Court.  It is also important to develop agreed conditions where more than one council is involved to avoid any overlap and inconsistency. The need for enforceable consent conditions also reinforces the role that council has to play in the Court hearing as the Court will likely require advice from the council regarding suitable consent conditions, which may evolve throughout the course of the hearing.

Costs and cost recovery

Under s285, the Environment Court may order any party to proceedings before it to pay costs and expenses to any other party that the Court considers reasonable. Therefore, all parties (the applicant, the council and s274 parties) may potentially be liable for costs, subject to the presumptions in s285(5).

With respect to the Court’s costs, s285(3) enables the Environment Court to recover its costs and expenses from any party and s285(5) states that the Court must apply a presumption that costs are to be ordered against the applicant. The Ministry of Justice will seek to recover the actual and reasonable costs associated with a direct referral case.  A schedule of the Court’s rates for different tasks is currently being prepared and will be posted on the Environment Court website in the near future. The Court is also keeping time records to assist with cost recovery.

Councils are able to recover their costs in carrying out their functions in relation to receiving and processing applications to the point that the application is transferred to the Court. However, in terms of their Court costs, councils will need to make an application to the Court in the usual way to recover their costs incurred in the Court process. Therefore, councils should keep accurate records of time spent with detailed descriptions to assist with cost recovery.

Further information on costs is provided in the Environment Courts Practice Notes and in the Ministry for the Environment’s An Everyday Guide to the RMA Series 6.3: The Environment Court: Awarding and Securing Costs.

Do the Discount Regulations apply to the direct referral process?

The Resource Management (Discount on Administrative Charges) Regulations 2010 are in force from 31 July 2010. The Regulations apply to council charges on applications for resource consent and applications to change or cancel a resource consent condition lodged on or after 31 July 2010, including resource consent applications where an applicant has requested direct referral.

The Regulations require councils to provide a discount where a resource consent application is not processed within the timeframe(s) set out in the RMA. Councils can develop and adopt their own discount policy that is more generous than the Regulations. The Regulations do not apply to any of the costs of the Environment Court.

The Discount Regulation applies when:

The discount is one per cent of the total of the administrative charges the council imposes for every working day on which the application remains unprocessed beyond the time limits, up to a maximum of 50 working days.

There is no total time limit specified in the RMA that is applicable to applications that are affected by direct referral. Therefore 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 of the Ministry for the Environment Implementation Guidance.

For 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.

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RMA provisions

Section 36AA: Local authority policy on discounting administrative charges
Sections 37-37A: Waivers and extensions of time limits
Sections 87C-87I: Streamlining decision-making on resource consents
Sections 88-91: Applications for resource consent
Sections 92-92A: Further information
Sections 93-94D: Notification of applications
Sections 95-95F: Public and limited notification of applications
Sections 96-98: Submissions on applications
Sections 101: Hearing date and notice
Sections 104-112: Decisions on applications
Section 115: Time limits for notification of decision
Sections 198A-M: Streamlining decision-making on designations and heritage orders
Section 267: Conferences
Section 268: Alternative dispute resolution
Sections 269-284: Environment Court procedures and powers
Section 274: Representation at proceedings          
Section 285: Awarding costs

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Relevant case law

As no direct referral applications have been determined by the Court at this stage, there is no relevant case law. This section will be updated as case law becomes available.

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Related guidance notes

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Relevant publications

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Current challenges

Do the direct referral provisions override the decision-making delegation required by s117(7)?

The question of whether direct referral to the Environment Court under s87E overrides the decision-making delegation required by s117(7) with respect to restricted coastal activity (RCA) applications came to Environment Canterbury’s attention as they received a RCA application as part of Lyttelton Port Company Limited’s application for direct referral. Section 117(7) states that the council must delegate its functions, powers and duties required to hear and decide on the application to one or more persons permitted by s34A(1), including one person nominated by the Minister of Conservation.

If the regional council ceases to be the consent authority (ie, when the applicant lodges the application at the Environment Court) it is considered that s117(7) ceases to apply in any sense. Conversely, if the applicant does not lodge the matter at the Court, then s117(7) would apply.

There does not appear to be any obligation to consult with the Minister of Conservation about the referral decision. However out of courtesy, a council may choose to let the Minister of Conservation know that the applicant has requested the matter to be directly referred, and even seek comment from the Minister if it thought this may help make the referral decision.  Environment Canterbury chose to do this in the LPCL case.  If the consent application is lodged at the Environment Court, it is important to advise the Minister of Conservation that this has occurred and that there will be no requirement for the Minister to appoint a decision-maker. The Minister of Conservation can still be involved in any case by making a submission.

This section will be updated as cases progress through councils and the Environment Court and we get a gauge for the challenges in practice. Your feedback on any issues would be appreciated to: admin@qp.org.nz

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Acknowledgements

This guidance note was prepared by Vicki Barker of the Ministry for the Environment and reviewed by Vivienne Holm of the Ministry for the Environment and Robert Schofield of Boffa Miskell.

The Ministry for the Environment would like to thank the following people for their help developing this guidance note:

Principal Environment Judge C J Thompson, Environment Judge J A Smith, Harry Johnson, Richard Thomson-Burrows, Bernadette Cuttance, Michael Tinkler, David Goodman, Gemma Carlyon (Ministry of Justice)
Clare Wooding (Local Government New Zealand)
Clare Sinnott and Dougal List (New Zealand Transport Agency)
Ian Dobson and Anne Hessell (Rodney District Council)
James Palmer (Environment Canterbury)
Emma Chapman and Maurice Dale (Christchurch City Council)
Terence Boylan (Invercargill City Council)
Andrew Gysberts (Auckland City Council)
Linda Cook (Wairoa District Council)
Matt Conway (Simpson Grierson)

This guidance note was prepared in June 2010.

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