Direct Referral to Environment Court
The direct referral process may be useful for those applications which are likely to be appealed to the Environment Court after the council has made a decision. The direct referral process allows the matter to be heard by the Environment Court in the first instance, thereby avoiding the need for two full hearings in the event of an appeal. The process applies to both notified resource consent applications and applications to change resource consent conditions.
If you are an applicant, you can make a request to the council to allow your application to be determined in the first instance by the Environment Court (section 87D).
You can make the request anytime after the application has been formally lodged with the council up until 5 working days after submissions have closed (section 87D). The council must return the request if:
- The application is incomplete; or
- The council decides not to notify the application
The consent authority has 15 working days to make a decision about your request (section 87E(6)). Submitters have no rights to be heard on the matter. There are no rights to appeal the council's decision but the applicant may make an 'objection' to the council under section 357A(1)(e). Lodging such an objection gives you the opportunity to present in person arguments in support of your request for direct referral and the council is then required to reconsider the matter.
If the consent authority does not grant the request for direct referral then it must continue to process the application (section 87F(1)). If it does grant the request then it must prepare a report on the application. This can include suggested conditions in the event that the resource consent is granted by the Environment Court. A copy of the report must be provided to the applicant and to all submitters (section 87F(4)).
Once you receive the report you must decide whether you still want the application to be determined by the Environment Court. If the council's report is supportive of the application you may decide that it would be preferable to be heard by the council in the first instance.
If you decide to proceed with the direct referral process then within 10 working days you must lodge documents with the Environment Court. The documents required include a notice of motion specifying the orders sought the grounds on which the application is made and a supporting affidavit. You can contact the Environment Court for advice on the format and contact of these documents.
After lodging the documents with the Environment Court you must serve copies on the council and every submitter (section 87G(2)). You must also advise the Registrar of the Environment Court when the copies have been served.
The council must then provide to the Environment Court with a copy of the original application, the council's report, the submissions and all the information and reports that the council has received. The Environment Court then determines the matter as if it was the council. If consent is granted, the council has responsibility for monitoring, enforcement, and any review of conditions.
See the diagram below, kindly provided by Ministry for the Environment. The original can be accessed at http://www.mfe.govt.nz/publications/rma/rma-amendment-act-factsheets-2009/ and is contained in Fact Sheet 4.
