If the council grants the request for direct referral it must then prepare a report for the Court on the application.
Section 87F(4) of the RMA states the council report must address the issues set out in ss104 to 112 of the RMA (decisions on applications) to the extent that they are relevant to the application, provide a summary of submissions received, and suggest conditions that it considers should be imposed if the Environment Court grants the application.
The Council report will set the context of the application and help the Court identify the relevant statutory provisions and identify and narrow the issues in contention. Suggesting conditions if the application is granted is required by the Act and is also good practice as the council is ultimately responsible for the compliance and monitoring of any consent granted by the Court.
It’s preferable for the summary of submissions to be broken down by topic (e.g., traffic, noise, landscape). While the Court will review the submissions, a summary of submissions with a breakdown by topic provides an overview of the issues for the Court and is helpful for mediation purposes should this 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.
For applications to two or more councils, in some cases it is expected that 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, consistent and comprehensive way.
Structure of the report
Relevant background reports from other council officers and consultants should be appended to the main report. This will 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.
Timing and distribution of the council report
The council must prepare the report within the longer of the following periods:
20 working days after the date on which submissions close, or
20 working days after the date on which the council grants the request for direct referral.
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 and/or distributed electronically where possible. The report should also 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 15 working days to lodge a ‘notice of motion’ from the date the council report(s) are received. Therefore, ideally, the reports should be received at the same time by the applicant to help the applicant meet this timeframe.
If two councils are involved, 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. 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.
Under the Act the council is automatically a party to the Court proceedings for direct referral. The council must be available to attend the hearings to discuss or clarify any matters in its report, give evidence about its report, discuss the submissions received and address issues raised by submitters and provide any other relevant information to the Court. The council is able to recover its costs for preparing the council planning report. The Court may order an applicant to pay costs and expenses that a council incurs in assisting the Court in relation to its report.