Risks and strategies for applicants
Obtaining a resource consent is often criticised as a lengthy and expensive exercise. An important step in the process that can have a major impact on time and cost is the Council’s decision on whether or not the application should be notified.
A non-notified decision is generally the most favourable outcome for an applicant, as it typically enables a decision to be made ‘on the papers’ and avoids the need for submissions and a hearing. However, even that process is not without it risks, as there are a number of ways in which such a decision can be challenged by disgruntled opponents who feel they have been excluded from the process.
The ability to comment on matters that affect you is one of the hallmarks of a democratic society. In the resource management context, this can be taken to the extreme with some people considering they should have an unfettered right to voice their opposition to any proposal in which they have an interest. When they are denied this right to comment, this can be a significant motivating factor that drives people to explore any and every possible option to challenge that decision.
This article provides an overview of the way in which non-notified parties can challenge a resource consent and provides some strategies that applicants can adopt to mitigate those risks.
Options for challenge
A person who has not been notified of a resource consent application has no formal right to submit on that application. As a consequence, such persons have no ability to appeal any decision on that application to the Environment Court.
The primary legal remedy that is available in this context is an application for judicial review to the High Court. This effectively requires that the decision maker committed an error of law that had a material impact on their decision. Examples include applying an incorrect legal test, failing to take into account relevant considerations, and making a decision that no reasonable decision maker could have reached. Although some of these grounds may appear quite broad, the Courts have emphasised that it is not for the Court, on judicial review, to second guess the decision maker’s judgment and embark on a merits-based review.
Other than judicial review, the options for challenge are very limited. The relevant Council that issued the consent has the ability to cancel a resource consent in some circumstances, either through an application for an enforcement order to the Environment Court (s314(1)(e)) or following a review of conditions (s132(3)). However, these options are only available when the information made available by the applicant contained inaccuracies that materially influenced the decision to grant the consent. These options can only be exercised by the Council that issued the consent, not other persons.
The only other option is where a notification decision has been made, but not the substantive decision about whether to grant consent. In that case, a person who was excluded from notification may try to put pressure on the Council to decline the application on the basis that the notification decision was incorrect (in reliance on s104(3)(d) of the RMA). The circumstances when this option will be available are rare, as in most cases the notification and substantive decisions are made simultaneously with no opportunity for input from third parties.
Strategies for applicants
Despite the limited options for non-notified parties to challenge a resource consent, responding to such challenges can be very costly and time consuming for an applicant. It is therefore important to ensure that strategies are adopted to minimise the risk of such challenges being made and frustrating an otherwise consented proposal.
Ensure all effects are assessed
All consent applications must contain an assessment of effects on the environment, which includes such detail as corresponds with the scale and significance of the proposal. The level of detail can vary widely depending on the nature of the proposed activity. However, regardless of scale it is important to ensure that all key effects are identified and assessed.
As noted above, the Court will generally be reluctant to question a consent authority’s judgment when assessing effects. However, it is more likely to intervene where specific effects have not been considered at all. Clearly identifying and assessing the potential effects is therefore a critical component of preparing a robust application.
Use appropriate language
A common ground for judicial review is that the notification tests have been incorrectly applied. In order for an application to proceed on a non-notified basis, all effects must be “less than minor”. If any person is affected in even a “minor” way, they must be notified of the application.
For this reason, it is very important that the application document and any supporting assessments use appropriate language that is consistent with these notification tests. These assessments must clearly demonstrate and articulate that the effects will be less than minor, which should be carried through into the Council’s decision.
No misleading information
Although it may seem obvious, it is important to ensure that the application does not contain any inaccurate or misleading information. If the inclusion of such information influences the decision to grant consent, this may provide a foundation for the Council to cancel the consent using one of the mechanisms described above.
No short cuts
Ultimately it is the Council that will be making the decision and so it is their processes that will come under scrutiny. An applicant often has limited control over the Council’s actions, but still has an important role to play by ensuring that due process is followed and no short cuts are taken. Although it may be tempting to have an application rubber stamped quickly, it may be a short term gain for long term pain if this is not done in the proper manner.
One of the most effective ways to diffuse opposition is to discuss the proposal with potential opponents before the application is made. Although this may not be a realistic option in all circumstances, it should always be considered as it has the potential to create long term solutions that minimise conflict and debate down the track.
Our final suggestion is that once consent is granted, it is helpful to start implementing the consent as soon as possible. Even if the grounds for judicial review are made out, the Court retains the discretion whether or not to grant any relief. A Court is less likely to cancel a consent where steps have already been taken to implement that consent due to the prejudice this would cause for the consent holder.
Public participation remains an important component of the RMA. However, it is not warranted in all circumstances, particularly when a proposal genuinely has less than minor effects and is broadly consistent with the relevant planning documents. In those cases, applicants should consider the strategies discussed above to mitigate the risks of future challenge and ensure that they can provide a robust response to any challenge that may be made.
Disclaimer: Please note that this is a brief summary for information purposes only and is not legal advice
Posted on Wednesday 1st February, 2017 at 02:28 pm