Application for a declaration
Relevant sections of the Act
Sections 310 and 313
The Environment Court’s jurisdiction to make declarations is conferred by s 313 of the RMA, and the scope of a declaration is set out in s 310.
313. Decision on application—
After hearing the applicant, and any person served with notice of the application, and any other person who has the right to be represented at proceedings under section 274, who wishes to be heard, the Environment Court may—
(a) make the declaration sought by an application under section 311, with or without modification; or
(b) make any other declaration that it considers necessary or desirable; or
(c) decline to make a declaration.
310. Scope and effect of declaration—
A declaration may declare—
(a) The existence or extent of any function, power, right or duty under this Act, including (but, except as expressly provided, without limitation)—
(i) Any duty imposed by section 32 (other than any duty in relation to a plan or proposed plan or any provision of a plan or proposed plan); and
(ii) Any duty imposed by section 55.
(b) Whether a provision or proposed provision of a regional policy statement, or regional or district plan -
(i) does not, or is not likely to, give effect to a provision or proposed provision of a national policy statement or New Zealand coastal policy statement contrary to sections 62(3), 67(2), and 75(2); or
(ii) is, or is likely to be, inconsistent with a provision or proposed provision of a regional policy statement, regional or district plan, or a water conservation order contrary to sections 62(3), 67(2), and 75(2); or
(c) Whether or not an act or omission, or a proposed act or omission, contravenes or is likely to contravene this Act, regulations made under this Act, or a rule in a plan or proposed plan, a requirement for a designation or for a heritage order, or a resource consent; or
(d) Whether or not an act or omission, or a proposed act or omission, is a permitted activity, controlled activity, discretionary activity, non -complying activity, or prohibited activity, or breaches section 10 (certain activities protected) or section 20A (certain existing lawful activities allowed); or
(e) The point at which the landward boundary of the coastal marine area crosses any river; or
(f) Whether or not a territorial authority has made and is continuing to make substantial progress or effort towards giving effect to a designation as required by section 184A; or
(g) The matters provided for in section 379 (provisions deemed to be plans or rules in plans); or
(h) any other issue or matter relating to the interpretation, administration, and enforcement of this Act, except for an issue as to whether any of sections 93 to 94C have been or will be contravened.
Section 82(2) of the Resource Management Amendment Act 2003 inserted "regulations made under this Act" into subsection (c), clarifying the ability to seek declarations in regard to regulations. Under the RMA, national environmental standards (NES) are regulations, and a declaration can therefore be sought in relation to an NES. Section 82(3) of the Resource Management Amendment Act 2003 also inserted subsection (h), which allows for more general interpretation declarations.
Section 311
Section 311 provides that subject to subsections (2) and (3), any person may at any time apply for a declaration.
Section 312
Section 312 requires that the applicant for a declaration serve notice of the application on every person directly affected by the application within five working days after the application is made to the Environment Court.
When to file an application
An application for a declaration is a way to obtain interpretative guidance or certainty without resorting to a sanction (as in a prosecution) or a mandatory directive (as in an enforcement order). An application for a declaration is a useful technique wherever there is doubt about the status of an activity. A declaration will clarify the matter and is likely to induce a response to avoid further direct enforcement action.
Franklin District Council v Waiuku Rigging & Labour Hire Ltd & Others.
The Council applied for an enforcement order against the respondents. The issue was the meaning of a provision of the Council’s Transitional District Plan and it was not possible to decide whether or not an enforcement order should be made until the Tribunal decided on the meaning of the provision. The parties agreed to seek a declaration as to the meaning of the Plan provision and then consider the rights of the parties in the light of that determination
W097/97 3 NZPTD 840
Case example A
Coalition of Residents Associations Inc v Wellington City Council
In this case the Court declined to make the three declarations sought but granted the parties an opportunity to make further submissions. Further submissions were made but the Court, for similar reasons, declined to make the declarations sought (W90/2001, 13 December 2001)
The applicants objected to the visual impact of cables fixed by Telstra Saturn Limited to an overhead line. Telstra Saturn had a certificate of compliance to carry out line work. The Court noted at paragraph 7 that a declaration should not "form a springboard for a prosecution or similar penal sanctions" by reason that an act or omission may have been illegal in terms of the relevant plan.
The Court declined to make the first declaration sought because it "adds nothing to the plan but is effectively an exercise in tautology". The Court was not prepared to make a declaration that a "communication cable" has a "plain and ordinary meaning". "A declaration if made by the Court must specify the meaning to be attributed to those words not leave it open." Furthermore, a declaration must fit within the jurisdiction under s 310 and the Court could not find any jurisdiction to grant even an amended declaration of the type sought. The Court was of the opinion that the third declaration was essentially seeking an "interpretation" of a certificate of compliance and there was no jurisdiction to do this under s 310.
23/07/01, Judge Treadwell, Environment Court, W56/2001
Onus of proof and standard of proof
If a local authority applies for a declaration, the onus of proof is on the local authority. The standard of proof is on the balance of probabilities. There is no obligation on the respondent to give evidence (Waitakere Forestry Park Ltd v Waitakere City Council A77/94).
In Kawerau Borough Council v Tarawera Motors Ltd (1984) 10 NZTPA 129 the High Court stated (obiter) that the standard of proof is on the balance of probabilities having regard to the gravity of the matter where the conduct under scrutiny could amount to an offence.
Disputed facts
In general, it is not appropriate to seek a declaration when the factual position is unclear or in dispute. The Court may have to make findings of fact to declare existing use rights, but the essential facts must not be in dispute.
Application for Declaration by Trolove
As a general proposition, it is not appropriate to seek a declaration when the factual position is unclear or is in dispute ... there will be cases where the Tribunal will have to make findings of fact in order to determine an application for a declaration. An obvious example would be an application for a declaration as to existing use rights. Nevertheless, in a case such as the present one where I am being asked to determine whether a proposed subdivision is a discretionary or controlled activity, I think it is necessary at the very least, that the essential facts are not in dispute. That is not the case, and consequently I am not prepared to make the first declaration sought by Mr Trolove.
C52/94, at page 11
Procedure involved in an application for a declaration
An application for a declaration must be in the form prescribed by the regulations (Form 19) and include supporting affidavits setting out the grounds. The proceedings may be heard by an Environment Court Judge sitting alone, or by the Environment Court. Section 313 permits the Court to decline the declaration sought or to make it “with or without modification”. Accordingly, a declaration may be made other than in the form sought.
Declaration as to compliance with s 17 duty
In a number of cases declarations have been made as to compliance with a section 17 duty.
In Ngataringa Bay 2000 Inc v Attorney-General (A16/94), the Planning Tribunal held that the overall effect of s 310(a) and s 313 is that the Court has power to make a declaration as to the extent of a land owner’s (or other person’s) duty under s 17(1).
Case example B
Donkin v Board of Trustees of Sunnybrae Normal School
In Donkin v Board of Trustees of Sunnybrae Normal School the Environment Court made a declaration that an existing school building (authorised by designation) contravened s 17 because it was too close to the boundary and was causing objectionable effects upon the Donkins and Newmans, who each owned a property next door to the school. The Donkins and the Newmans claimed that the school buildings affected their privacy, peace and sunlight.
The Court found that the two classrooms caused substantial adverse effects to the applicants and adjourned the proceedings to allow the parties to file further submissions as to the form of the declaration.
The Court made the following declaration:
Declares under section 313(a) of the Resource Management Act 1991 that the Board of Trustees of the Sunnybrae Normal School and the Minister of Education
(a) have contravened their duty under section 17 of the Act by locating and using the school buildings (two classrooms) adjacent to the Donkin and Newman properties at 7A and 9 Cobblestone Lane, Glenfield;
(b) have a duty to remedy or mitigate the adverse effects (loss of sunlight, daylight, and privacy, and an increase in noise) by relocating the building so that the classrooms are at least 10 metres from any residential boundary.
[1997] NZRMA 342
Case example C
Sayers v Western Bay of Plenty District Council
In Sayers v Western Bay of Plenty District Council the then Planning Tribunal heard an application by Mr Sayers, the occupier of a property at Waihi Beach, for a declaration as to whether the placing of fill on a neighbouring property by Mr Fowler contravened the RMA or a rule in the operative district scheme of the District Council.
Fowler had placed a huge amount of fill on his property, which raised the level by nearly 2 metres (his object was to provide a more advantageous building platform).
The Tribunal found that the work undertaken by Fowler had caused an adverse effect on the amenity value of the neighbourhood as well as the economic and aesthetic conditions which affect or are affected by those values. There was also an adverse effect on one particular lot by virtue of a clay silt run-off problem.
The Tribunal considered s 17, and at page 152 said:
Although as we have said, the Act embraces a permissive land use approach, applicable unless the particular activity is prevented or controlled in some way, s 17 is critical for ensuring that, at the end of the day, particularly in cases where no district plan rule is apt for calling in aid to avoid, remedy or mitigate an adverse effect on the environment caused by an activity carried on by any owner of land, a person is not able to claim that no public law duty is owned to take such rectifying steps as the case may warrant. While the duty is not of itself enforceable by virtue of subsection (2), and while no action has been set in motion pursuant to subsection (3), we see no reason why we cannot determine and declare whether or not the land owner in this case is under a duty imposed by the section. Section 310, as we construe it, does not limit our ability to make a declaration in the present circumstances.
The Tribunal held that the relevant rule in the District Plan was ultra vires, but that if it had not been ultra vires the Tribunal would have declared that the activity concerned contravened the rule. Under s 17 of the RMA the Tribunal declared that Fowler was under a duty to remedy or mitigate the adverse effect on the environment arising from the site alteration he was undertaking, and that to discharge that duty he must reduce the level of fill to a specified extent.
The Tribunal declared that Fowler was:
“...under a duty to remedy or mitigate the adverse effect on the environment arising from the site alteration activity carried on and intended to be carried on by him, and that in discharge of such duty the existing level of fill on the site requires to be lowered 0.95 m, so as to produce an average fill thickness of or about 1 m (including the intended 250 mm layer of topsoil), still maintaining a generally flat platform. The filled area as lowered also requires to be properly retained and landscaped”.
(1992) 2 NZRMA 143
The Court's discretion to grant a declaration
Section 313 gives the Environment Court discretion as to whether to grant a declaration.
Case example D
Wellington Regional Council v Burrell Demolition Ltd
The Wellington Regional Council applied for declarations as to the correct interpretation of consent conditions granted to Burrell Demolition Ltd. The Wellington Regional Council had brought three prosecutions against Burrell Demolition Ltd but these had not yet been determined.
In the Environment Court (W98/2000, 22 December 2000, Kenderdine J.) the Court declined to grant the declarations sought, mainly because the Court found the declarations "very precise and in the light of the evidence too restrictive. They also may form the basis for further prosecutions" (at paragraph 88).
On appeal to the High Court ( 30/04/01, Doogue S, HC, Wellington, AP25/01) the Court noted at paragraph 25 that "the absence of any statement of principles as to the basis on which the discretion is to be exercised under s 313 RMA points to the intention to confer a broad judicial discretion". The High Court referred to the Court of Appeal's decision in Electoral Commission v Tate ( [1999] 3 NZLR 174) which dealt with the interpretation of statutes. The High Court held at paragraph 32 that "unless there was a sound reason why a declaration should be refused in the present case the Environment Court was obliged to determine the meaning of the conditions in dispute." The High Court considered the exceptions from Electoral Commission v Tate and found none applied. The High Court made a declaration. The decision was appealed to the Court of Appeal ( CA 161/01, 18 March 2002) Referring to Electoral Commission v Tate the Court of Appeal said Tate does not undermine the discretion to grant relief (at paragraph 5).
The Court of Appeal said at paragraph 12:
Although discretionary in nature, the power given to the Environment Court to make declarations is a useful tool in the administration of the Act. We agree with Doogue J that particularly when parties who are faced with a live issue, as these parties were, combine to seek declaratory assistance, the Environment Court should be slow to decline relief. It is not appropriate to seek to compile an exhaustive list of circumstances when it may be right nevertheless to refuse declaratory relief. We also agree with Doogue J that the fact that the Environment Court Judge found the formulation of the declaration sought too precise and restrictive was not a sufficient reason of itself to decline to make any declaration at all.
Further at paragraph 16 the Court said:
We wish to make it clear for the future that the fact that parties may consent to the seeking of a declaration under s 313 in a case where there are pending or potential criminal proceedings involving the same issues should not of itself be regarded as carrying much weight in the exercise of the discretion.
The Court of Appeal invited Counsel to file a joint memorandum setting out the draft declarations.
