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 for a decision.
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. Where practicable, the document requesting direct referral 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 potential or pending request for direct referral and to allow councils to coordinate with each other where necessary, the applicant should advise council(s) of the pending request as early as practicable 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.
If a council receives a request for direct referral, as a matter of good practice, the council should let the Environment Court know it has received a request. This will help the Court with its forward planning. When the council has made its decision on the request, then it should send a copy of its decision to the Court as soon as possible, so the Court knows whether it is likely to receive the direct referral application. If the applicant decides to proceed to the Court and lodge its notice of motion, the Court will already have prior warning of the application and will have started to plan for how the Court will process the application and allocate resources to it.
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 if the council:
determines the consent application is incomplete, or
receives the request for direct referral after it has determined the application will not be notified, or
decides not to notify the application.
While the council should be made aware of a potential or pending request, the applicant may choose to wait at least until the application has been notified before formally requesting direct referral. Applicants may also choose to wait until after the closing date for submissions to request direct referral (applicants only have 5 days after the close of submissions to make the request, however). This 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 any subsequent appeals. In such situations, direct referral is not likely to be the most appropriate option.
Conversely, if during the course of the submission period it becomes clear that the matter would likely be appealed 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 7A for a resource consent and Form 27A for a Notice of Requirement).
The following information needs to be provided to the council in a request for direct referral:
the type of application sought to be directly referred (eg, resource consent application, application to change or cancel condition(s) of resource consent)
a brief description of the application, including any consent reference number assigned by the council
the reasons for the direct referral request and the factors for the council to consider in determining whether direct referral should be granted
the date and signature of the applicant or person authorised to sign on behalf of the applicant and contact details. Note that a signature is not required if the application is made by electronic means.