Direct Referral Process Information
All about the direct referral process under the Resource Management Act 1991 (RMA). This information has been prepared to help submitters understand the process.
Direct referral process
The direct referral process allows applicants to make a request to the council that their notified resource consent application or notice of requirement be decided by the Environment Court (the Court) rather than the relevant council.
Typically, when an application is notified (publicly notified or limited notified), it is open to submissions from people who may be affected by it, and then proceeds to a council hearing for a decision. In the case of direct referral, while the council notifies the application and receives submissions, the application is then transferred to the Court for a decision, bypassing the council hearing stage.
The direct referral process streamlines decision-making for large scale and/or complex applications that are likely to end up in the Court on appeal, saving time and costs for both applicants and submitters.
Types of applications direct referral can apply to
The direct referral process only applies to notified applications, and only the following types:
- applications for resource consent
- applications for changes or cancellations to condition(s) of resource consent
- notices of requirement for a designation
- notices of requirement for a heritage order
- notices of requirement for an alteration to a designation or heritage order .
Who can request that an application be directly referred to the Environment Court?
Only the applicant or the applicant's agent is able to make a request to the council that an application be directly referred to the Environment Court for a decision.
Who decides whether an application can be directly referred to the Environment Court?
The council has full discretion to decide on the direct referral request.
The decision will typically be made by a council officer, or by a committee of elected council representatives or independent commissioners, or both. People who made submissions do not have any ability to be involved in either the applicant's request or the council decision.
The council must make its decision to grant or decline the request for direct referral within 15 working days. The 15 working day timeframe is calculated from either the day after the council makes the decision to notify the application (if the request for direct referral is made before notification), or after the request for direct referral is received (if the request is received after the notification decision).
If you have made a submission on an application, the council is likely to let you know about any request for direct referral. To stay informed, talk with the council and ask to be advised if any request is made.
Declined direct referrals
If the request for direct referral is declined by the council, the applicant has a right to object. The council then needs to reconsider its original decision and can either maintain the decision, or change its position and grant it.
If the applicant's objection is not successful, the council continues to process the application and it will proceed to a council hearing for a decision.
If you are a submitter, you can rely on your written submission to get your views across to council, or you can choose to be heard and speak to your submission at the council hearing. The council submission form asks you to indicate whether you wish to be heard or not. You can also say whether you are interested in presenting a joint submission with another submitter. Refer to the Ministry for the Environment's booklet, Making a Submission about a Resource Consent Application for more guidance on this.
Granted direct referrals
If the request for direct referral is granted by the council, the application will be transferred to the Environment Court for a decision.
The council is required to prepare a report for the Court. This report must contain an assessment of the application against the relevant regional and/or district plan provisions, and may include recommended draft conditions of consent. The council report should also include a summary of all submissions received on the application. The council needs to produce this report within 20 working days after submissions close, or 20 working days after it grants the direct referral request, whichever is longer. The council must supply a copy of its report to the applicant and all submitters, by post and/or email. It may also make the report available on its website or at council offices so that it is readily accessible. Once the applicant has received the council report, he or she has 10 working days to lodge an application (a notice of motion and affidavit) with the Court. Once the matter is lodged with the Court, the council ceases to be the consent authority and the Court becomes the decision-maker.
Can an applicant still decide not to proceed to the Environment Court?
If a request for direct referral is granted by the council, the applicant can still decide not to proceed to the Environment Court. In this instance, the council must decide the application. The council hearing must be held within 15 working days from the date the applicant advises the council they are not proceeding to the Court.
As before, as a submitter, you have a right to be heard before any council hearing.
How can submitters get involved if the application is directly referred to the Environment Court?
After the applicant has lodged the application with the Environment Court, the Court will advise all submitters that the matter is now before it. The council will transfer your original submission to the Court and it will be considered as part of the case. However, you do not have an automatic right to participate in the Court proceedings, including speaking at the hearing, unless you become what is known as a 'section 274 party', or party to the Court proceedings. Becoming a s274 party is relatively simple - simply use Form 33 as a template to complete your own s274 notice. The Court will likely also send you a copy of this form. If you wish to be involved in the Court proceedings, lodge your s274 notice with the Court. You do not have to pay a fee. The Court will let you know the deadline for lodging the notice, and how and where to do so.
Once you become a s274 party, the Court will correspond with you about the hearing. You may choose to seek professional help from a lawyer and/or other relevant professional, such as a planner, to help decide whether or not to become a s274 party. These experts may also help you complete the s274 notice and prepare for the Court hearing. If there are other submitters with the same issues, you should consider whether to prepare and present a joint submission and share legal and expert representation to potentially save on time and costs. You may speak yourself, or you may prefer for a representative to speak on your behalf at the hearing, or both.
Implications of being a s274 party
The primary implication of being a s274 party is that you have a right to be involved in all Environment Court proceedings, and, in particular, have speaking rights at the Court hearing.
This gives you the ability to speak to your submission or any evidence that you produce at the hearing (or have others speak on your behalf). You also have the ability to cross-examine other parties, which allows you to ask questions. However, you may also be subjected to cross-examination. As a s274 party, you do not have to present a submission, produce evidence or cross-examine - it simply gives you that option. Being a s274 party also allows you the right to participate in any mediation or pre-hearing conferences.
Refer to the Ministry for the Environment's booklet, You, Mediation and the Environment Court for more information about the mediation process.
You may also become involved in resolutions, such as consent memoranda or orders, which can be reached by the Court before the hearing occurs.
A further implication of being a s274 party is that you are potentially liable for costs. However, it is generally unlikely that costs would be awarded against you in a direct referral case, unless the matters you have raised are considered by the Court to be frivolous or vexatious. Generally, the bulk of the costs will rest with the applicant.
Refer to the Ministry for the Environment's booklet, The Environment Court: Awarding and Securing Costs for more general information about costs.
As a s274 party you may also appeal a Court decision.
Court hearing locations
The Environment Court is required to hold the hearing as near to the locality of the application's subject matter as it considers convenient, unless the parties agree otherwise. As a submitter, you may request a location for the hearing, but the final location is at the Court's discretion. Wherever possible, the Court will look to hold hearings in its own Court rooms, as this is the most practical option.
The Court process
An Environment Judge will be assigned to the case and a case manager from the Environment Court will be formally appointed. If you become a s274 party, you will receive a letter with the case manager's contact details. The case manager usually works with the Environment Judge to plan the course of the proceedings and is your key contact.
The Court will encourage the applicant to try and resolve your issues before the hearing. If these issues cannot be resolved, the Court may hold a pre-hearing conference. As a s274 party, you or your representative should attend any pre-hearing conference. The Court may also ask whether you want to proceed to mediation. Mediation can help parties to identify common ground and define, narrow and even resolve issues, which may avoid the need for a hearing, or at least narrow issues to reduce the hearing time. For further information on mediation refer to the Ministry for the Environment's booklet: You, Mediation and the Environment Court.
There is also some general guidance on the hearings process and protocol in the Ministry for the Environment's booklet: Your Guide to the Environment Court, including how you should conduct yourself in the Court.
The Environment Court decision
Once a decision has been made, the Environment Court will issue a copy of the decision to you at the address you gave on the s274 notice.
Appeals on the Environment Court decision
Appeals on the Environment Court decision can be made to the High Court by the applicant and any s274 party, but only on points of law and not on findings of fact. As a s274 party, if you are considering an appeal, you should seek legal advice about whether an appeal has merit.
Monitoring and enforcement of the decision
If the Environment Court grants the application, the council is responsible for monitoring and enforcing the decision, including all conditions.