This guidance note has been prepared to help practitioners, including council officers and applicants, understand the direct referral process to the Environment Court. The key provisions of the RMA which provide for direct referral are sections 87C to 87I for resource consents, sections 198A to 198M for notices of requirement and heritage protection orders and section 285 for costs.
Information sheets have also been developed to help the public understand the process, particularly in their role as potential applicants and submitters. These can be found on the 'Direct referral process - information for submitters' and the 'Direct referral process - information for applicants' webpages of the Ministry's website.
The guidance note focuses on the direct referral process for resource consents. The direct referral process also applies to notices of requirement and heritage protection orders and the process is largely identical to that for resource consent applications, including timing. However, different sections of the RMA apply and have slight wording differences for notices of requirement and heritage protection orders.
What is direct referral?
Direct referral allows applicants to make a request to a council that their notified resource consent, notice of requirement, or heritage order application be decided by the Environment Court, rather than the relevant council.
The direct referral process is intended to streamline decision-making for notified consents, particularly more contentious applications where there is likely to be some opposition to the activity. These tend to be the larger scale and/or complex applications that are likely to end up in the Environment Court on appeal. The direct referral process is intended to save time and costs for both applicants and submitters by avoiding the need for a 2-stage hearing process.
Before a decision is made by the council on a direct referral request, the application progresses in the standard way, ie, the application is lodged with the council, a decision is made as to whether or not the application is notified and there is a 20 w.d. submission period provided (ss88-98 of the RMA apply).
What type of applications can be directly referred?
The direct referral process only applies to notified applications (including limited notified). Sections 87C, 198A and 198H of the RMA specify the notified applications which can be requested to be directly referred to the Environment Court. They are:
applications for resource consents under s88
applications for changes or cancellations to condition(s) of resource consents under s127
notices of requirements for a designation under ss168 or 168A
notices of requirements for a heritage order under ss189 or 189A
notices of requirements for an alteration to a designation or a heritage order to which ss168, 168A, 189 or 189A applied.
Applications that have been directly referred in the past have included large retail, infrastructure or energy projects. Examples include quarries (Winstone Aggregates, Road Metals Ltd, Brookby Quarries), wind farms (Mt Cass, and Project Hurunui), Mahia Beach wastewater scheme, Queenstown airport expansion, retail developments (Pak n Save Rodney, Jackson Street Retail Ltd), and Hagley Oval.
The direct referral process is separate to the call-in or referral process that applies to proposals of national significance. If the Minister for the Environment considers that a matter is (or is part of) a proposal of national significance and it is called in under s142(2), or is called in following a recommendation of the Environmental Protection Authority (EPA) under s145 of the RMA, then the application follows the consenting path for proposals of national significance. For example, under Part 6AA of the RMA the Minister may make a decision to refer a matter of national significance to the Environment Court for a decision, which is a different process to the direct referral process under sections 87C and 198A. Refer to the Resource Management Section of the Environmental Protection Authority (EPA) website for further information on the decision-making process for proposals of national significance.
Changes to the RMA in 2013 have introduced the ability for the Minister for the Environment to make regulations prescribing an investment threshold amount for direct referral. When regulations are put in place, then a consent authority would be required to grant an applicant’s request for direct referral if the value of the investment in the proposal is likely to meet or exceed the threshold amount prescribed in the regulations, unless the consent authority considers there are exceptional circumstances. In making such regulations the Minister must have regard to the intent of the regulations which is to require requests for direct referral to be granted for proposals of significant economic scale.
Until such regulations are passed, the council retains full discretion as to whether to grant or refuse a request for direct referral. There is a right of objection under section 357A for a requestor whose request has been refused by the council.