Application for a declaration

Abstract

This is the second of seven guidance notes making up the RMA Enforcement Manual. It covers declarations made under the Resource Management Act 1991 (RMA) for enforcement purposes.

Declarations are a means of getting judicial direction on a matter that is in dispute between the local authority and another person.

This guidance note provides guidance on:

declarations in context
scope of a declaration
when applying for a declaration may be appropriate
how to apply for a declaration
onus of proof and standard of proof
declaration as to compliance with section 17 duty.

Guidance note

Context

Declarations are not an enforcement tool in the same sense of an abatement notice or prosecution, as they neither require an outcome nor penalize any actions taken by an offender. Declarations may, however, clarify whether any particular action or incident breaches, or complies with a plan rule, resource consent condition or regulation. They provide a local authority greater certainty on whether or not enforcement action is warranted.

Declarations are a broad discretionary decision by the Environment Court. There are no statutory statements of principle to guide the decision. The Court of Appeal has found that the discretion should be exercised liberally, so that even if the Environment Court finds the suggested formulation of the declaration too precise or restrictive, appropriate relief might be given (for example, by endeavouring to identify alternatives).

If the local authority is confident of its position and prefers to move ahead with enforcement action rather than divert into declaration proceedings, the matter in dispute can often be settled as part of other proceedings, for example, on the hearing of an enforcement order application.

Scope of declarations

The scope of a declaration is set out in s310 of the RMA.

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) -

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
any duty imposed by section 55.

(b) whether, contrary to section 62(3), a provision or proposed provision of a regional policy statement -

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; or
is, or is likely to be, inconsistent with a water conservation order; or

(ba) whether a provision or proposed provision of a regional plan, -

contrary to section 67(3), does not, or is not likely to, give effect to a provision or proposed provision of a national policy statement, New Zealand coastal policy statement, or regional policy statement for the region; or
contrary to section 67(4), is, or is likely to be, inconsistent with a water conservation order, any other regional plan for the region, or a determination or reservation of the chief executive of the Ministry of Fisheries made under section 186E of the Fisheries Act 1996; or

(bb) whether a provision or proposed provision of a district plan, -

contrary to section 75(3), does not, or is not likely to, give effect to a provision or proposed provision of a national policy statement, New Zealand coastal policy statement, or regional policy statement; or
contrary to section 75(4), is, or is likely to be, inconsistent with a water conservation order or a regional plan for any matter specified in section 30(1); 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

(ga) not in force; 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 95 to 95F have been, or will be contravened.

When is a declaration appropriate?

An application for a declaration may be made when:

there is a need to seek clarification or an interpretation of a legal matter without seeking to prosecute or apply for an enforcement through the courts (see Coalition of Residents Associations Inc v Wellington City Council [2001], for example)
wherever there is doubt about the compliance status of an activity (see for example Application by Trolove or Franklin District Council v Waiuku Rigging & Labour Hire Ltd & Others).

In some cases the declaration may be enough in itself to encourage an errant party to comply, or may otherwise remove the need or justification for further enforcement action.

Declarations can be sought in regard to Regulations under the RMA, including National Environmental Standards. There is also scope for declarations to be made by a local authority on whether notification of a resource consent application is required (s95 to 95F of the RMA).

Applying for a declaration

Who can apply?

Section 311 of the RMA provides that subject to subsections (2) and (3), any person may at any time apply for a declaration.

Subsection (2) provides that a declaration, that a person is failing to adopt the best practicable option, may be sought only by the Minister of Conservation or the consent authority
Subsection (3) provides that a declaration, as to the boundary of the coastal marine area, may be sought only by the Minister of Conservation, a local authority or the consent authority.

Forms

An application for a declaration must be in the form prescribed by the regulations (Forms 41 (PDF, 19 KB) and 42 (PDf, 17 KB) of the Resource Management (Forms, Fees, and Procedure) Regulations 2003 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 of the RMA 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.

Giving notice to affected parties

Section 312 of the RMA 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.

Court 's discretion to grant a declaration - s313

Section 313 of the RMA gives an Environment Judge sitting alone or the Environment Court discretion as to whether to grant a declaration.

In Wellington Regional Council v Burrell Demolition Ltd [2000] W98/00, [2001] HC AP25/01, and [2002] CA 161/01 the Environment Court exercised its discretion to decline an application for a declaration on the basis that any resultant declaration would have been too restrictive in light of the evidence. This view was not upheld when the decision was appealed to the High Court and Court of Appeal. A resultant declaration being precise and restrictive was not a sufficient reason in itself to decline to make any declaration at all.

Onus of proof and standard of proof

The onus of proof for a declaration is on the applicant. There is no obligation on the respondent to give evidence(Waitakere Forestry Park Ltd v Waitakere City Council [1994] A77/94), and there won 't always be a respondent.

In Kawerau Borough Council v Tarawera Motors Ltd [1984] 10 NZTPA 129, the High Court remarked that the standard of proof is on the balance of probabilities havingregard to the gravity of the matter where the conduct under scrutiny could amount to an offence.

Declaration as to compliance with s17 duty

In a number of cases, declarations have been made as to compliance with s17 duty. In Ngataringa Bay 2000 Inc v Attorney-General [1994] A16/94), the Planning Tribunal held that the overall effect of s310(a) and s313 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 s17(1).

Best practice examples

Declarations are a tool used relatively infrequently in relation to enforcement. However, they might be especially useful in situations where the local authority is unsure of its position but considers that a decision must be made because of the risks of not acting. The local authority might also be dealing with an issue that is high-profile or where formal intervention is potentially of high cost to ratepayers or to individuals who are the focus of its action, and it wants to get it right.

Relevant case law

Relevant case law has been referred to throughout this guidance note, with links to fuller summaries when appropriate.

Related guidance notes

Acknowledgements

Quality Planning would like to make the following acknowledgements.

Published in October 2009.

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