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Chapter 1: Introduction

The purpose of this report

1. Sections 140–150AA of the Resource Management Act 1991 (RMA), introduced as an amendment in 2005, provide for the Minister for the Environment to intervene in the processing of certain matters.['Matters' is the term used for resource consent applications, a request for a change to be made to a plan, or a notice of requirement. See p.3.] The purpose of this document is to state the policy for the Minister’s power to recover costs of such intervention. This is both to guide those involved in decisions on proposals of national significance about who and what is to be charged, and so that those who may be charged costs can view the policy that has led to the charges they may face.

Background

2. Before the 2005 amendments, the Minister for the Environment could ‘call in’ an application for a resource consent that the Minister considered to be a matter of national significance. When an application was called in, the Act required the Minister to appoint a board of inquiry to hold a hearing and make recommendations to the Minister. After receiving the board’s recommendation, the Minister, rather than the local authority, made a decision on the application.

3. The 2005 amendments provide a range of more flexible tools the Minister can use to intervene when resource consent applications or requests for changes to council plans present issues of national significance. Under new sections,[Section 141A(1). See Appendix B.] applicants and local authorities can now request the Minister to intervene in a matter of national significance. This now covers, for example, notices of requirement for designations, private plan changes, and requests for the preparation of a regional plan, in addition to resource consent applications.

4. The Minister can choose from a new menu of options for government involvement, in addition to ‘call in’. These options, and the cost recovery policy for each, are covered in Chapter 3.

5. In brief, the factors the Minister decides on when considering intervening are:

  • the extent a matter is, or is part of, a proposal of national significance
  • the extent to which the current system can cope.[Section 141A(3). The Minister must also consider whether the local authority that would ordinarily be responsible for processing and determining the matter: has the capacity to do so, and, considers it appropriate for the Minister to intervene. The capacity of a local authority may include the local authority’s financial, logistical and human resources, experience and policy framework, having regard to other commitments a local authority has. ]

6. In deciding whether a matter is, or is part of, a proposal of national significance, the Minister may have regard to any relevant factor. The list in the Act shows, for example, that factors can include whether the matter has aroused widespread comment or involves, or is likely to involve, significant use of natural resources. [The full list of examples is in section 141B(2) – and reproduced in Appendix B to this policy. By way of example, in an intervention in a 2006 wind farm proposal, the relevant factors were: the widespread public interest regarding the actual or likely effect of the proposal on the environment, the significant use of natural and physical resources, the effects on more than one district or region, given that the benefits of the proposal (such as the environmental benefits associated with increased use of renewable energy) are likely to be national in effect. ]

7. Under this policy, where costs are to be recovered they must meet certain principles. These principles are described in Chapter 2.

Mostly business as usual

8. Making decisions under the RMA on these types of matters is generally the responsibility of local authorities – regional councils or territorial authorities or both.

9. While these intervention powers were only introduced in 2005, the downstream processing activities (hearings and so on) have existed since the Act first came into force. So, for some interventions, while the power to ‘direct’ something to happen is new, the result (eg holding a joint hearing) is not new and local authorities have been conducting them for a long time.

10. In a cost recovery sense, then, most of the processing and the resulting invoicing of costs to the applicant has long been operational inside local authorities. This policy does not cut across that.

11. On the other hand, other actions such as the board of inquiry and direct referral to the Environment Court (described in Chapter 3) are new and have new cost activities that this policy addresses. However, the types of activities covered are similar whether it is the Ministry for the Environment or a local authority seeking to recover costs. The majority of costs are likely to be recovered from the applicants, as is the case with applications where there is no intervention from the Minister.

The parties

12. To help with understanding this policy it is useful to think of three types of parties being involved:

  • the Minister (and in effect the Ministry for the Environment)
  • the applicant
  • organisations that have a governance system that can progress and process an application:
    • local authorities individually or in groups
    • the Environment Court
    • a board of inquiry.

13. Under this policy, there are instances of:

  • the Ministry for the Environment (MfE) incurring non-recoverable costs
  • both local authorities and MFE recovering costs from applicants.

14. Other parties, such as submitters who interact with the process in certain procedures (for example, at hearings), are not affected by this policy. They are not being charged nor are their costs being met. These costs are expected to ‘lie where they fall’.

15. This policy applies to the exercise of the Minister’s powers under sections 140–150 of the RMA. It does not apply to other actions or processes. For example, it does not apply in the event that the Minister is a party to an appeal to the Environment Court outside of the scope of these sections, nor to any subsequent or other actions in other courts.

An applicant

16. In terms of this policy, an applicant can also include a private sector organisation or a local authority.[Section 140(a) also uses the term applicant in the sense of request type; eg, an applicant for a resource consent. See Appendix B.] The cost recovery treatment is the same for all types of applicant.

Matters

17. This is the term used for resource consent applications, a request for a change to be made to a plan or a notice of requirement.[Section 140(c) provides the full list of matters. See Appendix B.] The overall cost recovery approach is the same for all types of matters; that is, the same principles apply whatever the matter applied for.

The Minister and Ministry for the Environment

18. The Minister’s decisions will generally be implemented by or through the Ministry for the Environment, and any board of inquiry will be administered by the Ministry for the Environment. The costs incurred by the Minister and by the board of inquiry in exercising their powers, and the recovery of those costs, will be administered by the Ministry for the Environment. This document refers to the Ministry for the Environment accordingly.

Time and disbursements

19. This document focuses on time and its cost in its examples. Total costs being charged will also often include disbursements, which should meet the same principles. In general, if the task is considered to be one that should be charged for, any disbursement incurred in association with that task would also be charged for. Therefore, unless qualified in a particular chapter or example, the cost recovery treatment of time is also applicable to disbursements.

Establishing an understanding

20. No policy can give the ideal cost recovery position in every situation. To provide enhanced predictability as to how costs will be recovered in particular instances, it may be good practice to establish an understanding with the applicant as to how this policy will be applied in a specific instanceS.

Appendices

21. There are two appendices to this document.

  • Appendix A provides the charge-out rates for Ministry for the Environment staff time, and a description of how they are derived.
  • Appendix B reproduces parts of the Act so that references in footnotes can be readily accessed.
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