Challenging a Non-Notification Decision - Proposed RMA Reforms to Ease the Way
Non-Notification of Resource Consent Applications
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 on a resource consent application 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 currently challenge a resource consent and looks at the options a non-notified party would have with the current Government’s proposed RMA reforms.
Current 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.
At present, 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) RMA) or following a review of conditions (s132(3) RMA). 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.
RMA Reforms - Easing the Way to Challenging Non-Notification Decisions
The current key legal remedy for challenging notification decisions through High Court judicial review proceedings is generally an expensive process and, consequently, often a significant deterrent to those wishing to challenge a notification decision.
The Government is however proposing to ease the way for third parties seeking to challenge notification decisions, through RMA reforms.
In the first stage of RMA reforms this year the Government has proposed that the Environment Court will be able to hear cases against a council’s notification decision. It is proposed that the Environment Court would be able to make a declaration on whether or not a council erred in law in making their notification decision, and refer the decision back to the council with or without directions.
The Environment Court would also be able to make interim orders preserving the position of any party to the declaration, and make an order setting aside the whole or part of the resource consent notification.
Disclaimer: This is a brief summary for information purposes only and is not legal advice.
Posted on Thursday 11th April, 2019 at 01:45 pm