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2. Application procedures

2.1 Introduction

The cost and delays commonly attributed to the resource consent process flow from a variety of factors. Some are related to the participatory philosophy of the Act. Many flow from council practices. These latter in turn often flow, inter alia, from:

  1. complicated RMA processes and reporting requirements

  2. the complexity of many plans

  3. the risk averse culture of many councillors and council planning staff

  4. a lack or misallocation of resourcing at both national and local level

  5. a lack of national guidance

  6. the perceived or actual poor quality of consent authority decision making

  7. the perceived or actual poor quality of applications.

It is one of the great tragedies of the RMA that little central assistance or direction was given in the earlier days following the Act coming into force, and this is no doubt a large factor in many of the problems experienced today.

The Government has expressed to us a desire to remedy this situation, and indeed the former Government’s initiation of a number of national policy statements and national environment standards indicated a similar desire on its part. We would however record most strongly that the leadership required from central government will not come cheaply or easily. We hope that the enthusiasm for change is matched by an appropriate level of resourcing (both financial and intellectual), and that the outcome is clear and relevant national guidance. If it is not, then we can confidently predict that many of the problems will persist, and the impediments to economic growth that many see in the Act will remain unaddressed.

There are, however, a number of changes that can helpfully be made to the Act as part of Phase 1 of the reform process; and more which, with time, can be introduced in the future.

2.2 Section 92 requests

One of the more frequent complaints as regards the complexity of the processes is that Councils are requiring too much information prior to deciding whether an application will be notified, or prior to making the actual decision. (We understand from the Ministry that 40% of all applications are subject to section 92 requests, but the situation may well be worse than that figure suggests, as there is no data on the number of successive requests.) To an extent this reflects no doubt an overly risk averse culture on the part of many planning staff. However, it also represents a misuse of the process whereby councils “buy time” by issuing requests so that they can “stop the clock” and claim a greater degree of compliance with the statutory time frames. The way in which requests are made when an application is to be notified, also often reflects a misunderstanding that some information will quite reasonably emerge during the hearing process.

In an endeavour to address this issue, the former Government amended the Act to allow applicants to refuse to supply the additional information and to allow councils to more easily reject inadequately prepared applications. Perhaps because of the complexities associated with those amendments, little use seems to have been made of them.

We propose that councils be permitted to continue to make consecutive requests for further information; but that only the first should serve to “stop the clock”. We would hope that by this mechanism the present abuses of the system in order to appear compliant with timeframes will be reduced and that more councils will devote appropriate resources to the area. The clock would then restart at the provision of the information or the applicant’s refusal to provide the further information.

To enhance the incentives in this direction we also propose that as part of Phase 2 of the reforms, a charges rebate scheme whereby charges are reduced if timeframes are not met, be considered. (See the discussion later in this chapter under the heading “Time Limits”.) We think also that Councils should not be able to use section 37 powers to extend time frames in a manner that would circumvent our suggested changes to section 92.

Councils can still use their section 88 powers and reject inadequate or incomplete applications.

We have prepared appropriate replacement sections for section 92 and section 92A and they are attached as Appendix 1 to the report. Note in particular that a corresponding amendment is also suggested to section 104 to make explicit the obligation of a council considering an application to consider “the adequacy of the information provided”.

The TAG is conscious of the possibility of adverse, unintended consequences arising from this change. It is commonly the case for example that “lower level” or “common place” applications incorporate a lower level of professional input than is frequently so with more significant matters.

It will inevitably be the case from time to time that what appears as relatively simple to professional planners and similarly skilled individuals, is viewed by those unfamiliar with the processes as being complex, obscure and/or difficult. This is likely to be aggravated by the natural desire of individuals making simple, low level applications to minimise their potential costs, including that spent on professional help.

Thus it is the case that some Councils report a reasonably high level of deficiency in initial applications for lower level consents. To counter this, some Councils have moved to pre-lodgement meetings in order to ensure that applicants are aware of the information requirements that they will need to satisfy. Indeed, used for this purpose, we would regard such meetings as best practice in action.

Thus, whilst consent authorities are empowered to reject applications; they will often encourage their officials to work with applicants to resolve outstanding issues.

Where applications do arrive with incomplete information, the use of section 92 to obtain further information (in part to properly complete the application) is unquestionably a valid and responsible use of this power.

However, such is the prevalence of complaints regarding the misuse of the power in order to “buy time”’ that we are satisfied that it is appropriate to introduce this reform as part of Phase 1. We see no reason why this need have the effect of limiting appropriate opportunities for planner/applicant collaboration: the overall outcome sought is the efficient processing of applications in all instances.

A minority view on the TAG holds that the proposed changes to section 92 and section 92A shift the balance of power between the applicant and the regulatory authority in favour of the former, in a way that significantly increases the risk of decisions being made with inadequate information. Failure to act in a precautionary manner in the absence of sufficient information is widely recognised as a significant source of environmental degradation and of over-commitment of potentially renewable resources, and legislation such as the Fisheries Act explicitly recognises this. On the minority view, the recommended changes to section 92 and section 92A could only be acceptable if there was an additional provision in the Act requiring authorities to take a precautionary approach to decisions in those cases where there is significant uncertainty, and the potential for significant adverse effects on natural and physical resources which it would be difficult or costly to reverse.

2.3 Number of consent categories

One of the complexities of the Act is the number of consent categories. We have been asked to consider whether there really is a need for so many, and see the potential for the elimination of two: the restricted coastal activity and non-complying activity categories.

With the elimination of the Ministerial veto in respect of activities within the coastal marine area, which we understand to be government policy, there would at first sight seem to be little point in retaining the category of restricted coastal activity. All that it essentially would achieve, given the absence of the veto, is to enable the Minister of Conservation to appoint a member of the hearing panel.

The position is however more complex than such an analysis might suggest. The Crown has ownership interests in the coastal marine area which are separate from the regulatory interests of local or regional authorities.

It is normally the case that any use and development of land requires at least two consents; the consent of the owner, and the consent of the regulatory authority under the RMA.

The current RMA regime for the coastal marine area, which combines both consents into a single consent process, rests heavily on the concept of avoiding any duplication of public processes on environmental matters. The consent of the owner, i.e. the Crown acting through the Minister of Conservation, is determined under a different statutory framework from that of the RMA, notably the Conservation Act, the Foreshore and Seabed Empowering Act, the National Parks Act, and the Reserves Act.

We understand that members of the Government have previously promoted a more collaborative approach to conservation and environmental policy, including applying the principle of “net conservation benefit” to the Department of Conservation’s (DOC) dealings with the private sector. Under this principle, DOC would agree to concessions and development proposals on the conservation estate, foreshore and seabed, when, and only when, the benefits of conservation gains significantly exceed the adverse effect on conservation values.

If such a net conservation benefit policy were to be implemented, the Minister of Conservation would need to be able to exercise the normal powers of an owner, such as negotiating with respective developers over price or rental, to receive competitive bids from a particular site, and to choose between those bids, and to agree or refuse to agree to contract. It is difficult to see that such a policy could in practical terms be implemented through a procedure such as a joint hearings panel with local authority regulators.

A net conservation benefit policy would therefore necessitate separating the consent of the landowner from the RMA consent. If that were done and the two consents were dealt with separately in the same manner as for land elsewhere, there would then be no justification for having restricted coastal activities as a consent category under the RMA.

At this point however it was the majority view of the TAG that the restricted coastal activity category should not be abolished until the direction of government policy as regards the exercise by the Crown of its ownership responsibilities was better ascertained.

We therefore recommend that the future of restricted coastal activities be considered under Phase 2 of the reform process.

The category we do consider could be helpfully abolished is the non-complying activity category.

Both discretionary activities and non-complying activities are considered by reference to the same criteria, namely those set out in section 104 of the Act. The difference, however, is that in order to qualify for that consideration, non-complying activities must first meet one of the two “gateway tests”: namely, that the effect of the proposal would be no more than minor, or that it would not be contrary to the objectives and policies of the plan. In the view of the TAG, it would be unusual that a council would decline consent for an activity the effects of which were indeed no more than minor; and to grant consent to an activity which was “repugnant” (for that is the sense in which the Courts have interpreted the words of the Act) to the plan’s objectives and policies.

Yet, much staff time and consideration is given in the early stages of consent processing, and much attention given at the later hearing, to the issue as to whether the activity meets either or both of the gateway tests. In the TAG’s view nothing is gained by this analysis that would not be gained merely by undertaking the same sort of consideration that is given to discretionary activities under s.104. We therefore recommend the abolition of the non-complying activity consent category.

We were reinforced in this view by an opinion obtained from Professor Miller of Massey University’s Planning Department. Dr Miller is a former planning practitioner who has taken a particular interest in the evolution of relevant New Zealand legislation. She provided us with a note as to the historical origin of the non-complying activity category. This is attached as Appendix 2. It was her view that the non-complying activity category existed in the RMA: “only as the result of a relatively thoughtless transition from the TCPA 77 rather than because logic supports the continued existence of two different categories.”

Others have suggested that the retention of the category was less “thoughtless” than it was ill-conceived; and that the problem really lies in the 1993 amendment to the RMA which provided that a plan could specify non-complying activities.

Regardless of which view is preferred however, retention of the category does in our view have little to commend it; and its abolition would certainly go some way to simplifying the Act.

We record our thanks to Dr Miller for her contribution.

We are, however, aware that there may be transitional issues, where plans may specify non-complying activities if this change were to be implemented immediately. We therefore recommend, in order to allow councils time to consider the effects of this reform and amend their plans if need be, that this part of the amendment not come into force until a further year after the rest of the Bill.

2.4 Public notification

At present the Act contains a presumption that all applications will be publicly notified – see section 93. Section 94 then goes on to provide for certain applications not to be notified.

There is however, as the TAG sees it, a basic “disconnect” between what an informed reader of the Act might expect to be the case, and what is in fact the reality of the situation, namely that approximately 95% of applications are not notified.

In our view this “disconnect” gives rise to both unreal expectations on the part of many lay folk, and to the commitment of an inordinate amount of time and resources to justifying the decision not to notify. Given that despite this statutory presumption, so many are not notified, it is the view of the TAG that the Act should be amended to delete the presumption. This will not only more honestly reflect the reality of the position, but will also in our view have the result of, often considerably, speeding up the eventual decision as to whether consent should be granted or refused.

In those cases which are destined for notification, the time and resources spent on deciding the notification issue would be saved.

In those cases which are destined for non-notification, the time and resources spent on justifying a decision not to notify would similarly be saved.

In that minority of cases where the decision to notify or not is clearly a close call, then the present situation will prevail; but given that these are but a minority, the savings would in our view be substantial.

We would propose instead a regime in which the Council would first determine whether the level of effects on either the wider community or the immediate locality; are they merely minor, or more than minor. If the wider effects are more than minor, then full notification is in order. If the wider effects are but minor, and the localised effects are more than minor, then limited notification to those potentially affected is clearly appropriate (unless their consents have already been obtained). If neither of the effects is more than minor, then the application should proceed on a non-notified basis.

Thus we would not, for example, anticipate that this could give rise to a situation in which residents in a low or medium density zone would wake up one morning to find that a multi-storied high rise had been approved for next door. Such a proposed development would inevitably have more than minor local effects, and could not therefore have been approved without either public notification or the consent of all affected persons.

2.5 Consideration of controlled activities and restricted discretionary activities

One of the apparent successes of the RMA in enabling public confidence in plans5 setting the parameters for future assessments has been controlled activities and restricted discretionary activities. It had been generally understood among RMA practitioners that where activities are so classified under a plan, being the product of public participation, the plethora of Part 2 considerations are not re-litigated.

A High Court decision (Auckland City Council v John Woolley Trust [2008] NZRMA 260) has raised some confusion on this position as it relates to restricted discretionary activities.

The Court confirmed that in relation to a consideration of the plan, a council could only consider matters over which discretion had expressly been reserved. However, the Court interpreted the RMA such that restricted discretionary activity applications are nonetheless subject to the Part 2 matters. Further, that while any Part 2 matters not provided for in the relevant part of the plan could not be used to decline consent, they could be taken into account in deciding to grant an application.

This outcome was surprising and means that consent authorities now have to consider a wider range of matters than those expressly set out in the plan (adding complexity and time to the consent process).

The TAG therefore recommends:

  • Section 104C (particular restrictions for restricted discretionary activities) be amended to reflect what was understood to be the position, i.e. any consideration of a restricted discretionary activity be limited to those matters over which council has expressly reserved its discretion in the plan

  • A similar amendment be made to section 104A (determination of applications for controlled activities) to ensure that the imposition of any conditions be limited to those matters over which discretion has expressly been reserved in the plan.

The outcome sought by these amendments is to reduce the matters that applicants and local authorities have to consider in preparing and processing resource consents for restricted discretionary activities and controlled activities.

2.6 Hearing commissioners

At present the Act allows councils to hear applications themselves or appoint independent commissioners for that purpose. The 2005 amendments to the Act introduced a certification regime for both Councillors and independent commissioners, and this programme appears on the limited information to date to have significantly improved the quality of hearing processes.

However, almost as important as the quality of the hearing process itself, is the degree to which participants in the process regard themselves as having had a fair hearing. If feelings of unfairness prevail then the process will not be respected, the RMA and local government itself will be brought into disrepute, and the likelihood is increased that disappointed participants will appeal the decision to the Environment Court.

There is a very considerable public benefit in RMA decisions being acceptable to all; and there is a significant level of feeling in the country that councillors too often apply/enforce their own agendas rather than the plan, and that they are “vulnerable” to “coercion” by the weight of popular feeling for or against a particular proposal. Certainly, an applicant faced with widespread popular objection to a proposal can be forgiven for feeling that he or she may well not get a fair hearing from councillors who are elected by opponents of the project.

We would not wish these comments to be taken as a criticism of the majority of Councillors who sit in judgment on applications. Many do a fine job, and a good number fail to gain re-election by virtue of having done so. Nevertheless, the popular contention remains and indeed continues to be fuelled by some councillors’ poor behaviour.

Further, just as the separation of powers argument applies to the question of appeals on policy decisions being made to the Environment Court (see Chapter 1) so too it applies to councillors sitting in judgment on applications being made for consents in terms of the plan rules in respect of which the councillors themselves have been the legislators. There is a clear argument to be made preventing councillors from sitting on hearing panels for applications altogether.

However, rather than recommend such a drastic step as part of these Phase 1 reforms, we decided to recommend that, where either the applicant or a submitter wishes the application to be heard by a panel of independent commissioners, they will be entitled to require the council to appoint such a panel. Any extra costs so incurred are to be charged against the person making the request. (We should add that we also have reservations as regards the process by which the commissioners are appointed, but this too can be left as a Phase 2 issue.)

At least by this means, those who are predisposed to question the independence of the elected councillors, or who feel that a better quality of decision would emerge from an independent panel, would be entitled to have their concerns remedied in advance.

The TAG also makes two further recommendations in regard to the appointment of independent commissioners. A majority of the TAG were satisfied that such was the importance of there being a high degree of transparent objectivity in the decision making process that all hearing panels should have at least one independent commissioner.

We also recommend that where a council is itself a submitter on an application, that none of its councillors be permitted to sit on the hearing panel. The sight of elected councillors sitting as judges when their own council is a party to the proceedings is likely to significantly enhance the sense of a lack of fair play felt by many participants in the process. Yet it is far from being an uncommon practice in joint hearings, and one which the TAG views as a factor in the degree to which people are dissatisfied with the Act’s implementation.

2.7 Designations

A point related to these natural justice issues arises in relation to decisions on designations. Although not strictly part of consent processing, it is convenient to deal with it at this point.

At present when a designating authority, such as a port company, highway agency or airport company, serves notice of a proposed designation on a local authority, it is the local authority which hears the submissions on the proposed designation. However it is not given the task of making a decision, merely a recommendation to the designating authority. The designating authority then makes a decision. That is to say, the designating authority makes a decision on its own designation.

In today’s environment where many designating authorities are private entities as distinct from Crown agencies; such a procedure is even more lacking in theoretical justification than may have been the case when designation powers were confined to the latter.

In addition, this extra stage in the process adds a short period, usually about a month, to the time taken to finalise the proposed designation.

We therefore recommend that as part of Phase 1 of the Government’s endeavours to simplify and streamline the RMA, that the power of decision making on their own designation be denied to designating authorities, and that the council’s recommendation be the decision on the proposal.

2.8 Contents of decisions

Another of the valuable changes made by the last Government was to amend section 113 of the Act which sets out the requirements as to what must be included in council decisions on applications. This has certainly improved the quality of expression of decisions, and made the process more transparent. However, it also applies, or has been widely interpreted as applying, to decisions on notification. This adds to the administrative burden of Councils, and we recommend that section 113 be amended to make it clear that it applies only to decisions on applications, not to the various procedural decisions along the way.

The commendably strict requirements of section 113 do also on occasion add unnecessarily to the cost and delays in processing applications. For example, in the case of simple applications where no third parties are involved and there have been no areas of contention or dispute, the requirements of the section can seem onerous, and do cause unnecessary duplication and delay in processing time.

We recommend that the requirements in section 113 be amended to simply require that for non-notified applications, or where there are no submitters in opposition, the decision merely states the reasons for the grant of consent.

Similarly, where no hearing is held or the decision is consistent with a staff report which adequately addresses the requirements of section 113, we recommend that the decision makers be simply empowered to adopt the section 42A report rather than spend time on a separate decision report.

The drafting of section 113 has also given rise to some differences in interpretation. The term “main findings of fact” has been interpreted by most Councils correctly, to refer to the findings on the “principal issues in contention”. Some however have interpreted it to merely require that the factual matters be clearly set out. To remedy that situation, we recommend that the reference to “main findings of fact” be replaced with “conclusions on each of the principal issues in contention”.

2.9 Time limits

At present the Act sets out various time limits within which Councils must process and decide applications. There is no sanction in the event of non-compliance with these requirements. We understand that in New South Wales, Queensland and the United Kingdom, the law confers upon applicants the right to treat this non-compliance as a “deemed refusal”, thereby conferring upon them an automatic right of appeal.

We did not recommend the introduction of such a procedure as part of Phase 1 of the reform. It has obvious implications in so far as community participation is concerned, and may even give rise to perverse incentives. We do however recommend that it be considered as part of Phase 2 of the process.

We do consider that more than an automatic right of appeal would be required. The degree of local authority non-compliance is obviously variable, but it is significant. The 2005/06 survey conducted by the Ministry for the Environment showed that only 56% of publicly notified applications are processed within the statutory timeframe. This is less than 63% and 69% reported in the 1999/2000 and 2001/2002 surveys respectively. Of all consents, only 74% were processed within statutory time frames, down from the 82% reported in 2001/2002.

This is clearly unsatisfactory, not only in terms of its cost impacts upon participants in the process, but also in terms of Parliament’s intentions being thwarted. There would seem little point in Parliament passing legislation if it is not to be given effect by the agency to whom its instruction is directed.

In the TAG’s view, where the Act prescribes a time frame for the completion of a particular process, that process should be completed within the designated statutory time frame. There needs to be a sanction to incentivise consent authorities to comply. The TAG therefore recommends, by a majority, that where a consent authority fails to complete the process within the time frame designated by the statute, the consent authority must remit at least 50% of the prescribed fee that it would charge for the process.

This change will no doubt incentivise a change in council behaviour. Local authority managers will see it as an important consideration that processes are completed within the statutory timeframe. There is also the clear possibility that it could incentivise perverse behaviour that will add cost and/or delay. A financially prudent manager wanting to ensure that general ratepayers do not have to bear the costs could introduce measures such as requiring appointments before applications are to be lodged, increasing charge out rates, and/or employing more staff/consultants to ensure the statutory time frames are met.

To avoid some of these consequences, the TAG recommends that work be undertaken to ensure that the time frames as currently set out are not too short to work in practice. If this recommendation is accepted, then the TAG also recommends that those operating the system be given a chance to submit on the time frames so that all can be assured that they are indeed reasonable.

The TAG therefore recommends as part of Phase 2 of the report reform process, officials should seek submissions on the statutory time frames, and after undertaking a careful examination of those submissions, consider whether the time frames currently set by the statute are reasonable. Any changes to the time frames should then be recommended as part of Phase 2 of the reform process.

Our reason for scheduling the issue in this two stage way is as follows: the Phase 1 change will establish that Parliament is serious about creating discipline in this area. The review of the statutory timeframes will be conducted in the context of that proposal. Consent authorities will have the opportunities to turn their minds to the reasonableness or otherwise of the periods set out in the Act and with that additional consideration, we would hope that all could then be confident that the statutory timeframes would be reasonably achievable, and a general culture of compliance with the prescribed timeframes would then become the norm. We therefore recommend that an amendment to the Act be included to require the rebate of 50% of the prescribed charges in the event of non-compliance with the time frames; this amendment to come into effect after the completion of the Phase 2 process.

We further recommend that as part of the Phase 2 process, an examination be undertaken of the existing statutory timeframes, and any refinements that may be required be undertaken in the Phase 2 Bill.

2.10 Adjournment of council hearings

Statutory time frames for the processing of resource consents range from 20 working days (effectively a calendar month) to 85 working days (four months), depending on whether a consent application is notified. While official statistics indicate that 74% of non-notified applications and 56% of notified applications are processed on time, this leaves many which are not processed within the statutory time limits.

An emerging trend which exacerbates this significant level of delay is consent authorities adjourning, but not closing, resource consent hearings at their completion. In those cases, the proceedings remain “in limbo”, and are not subject to any statutory time frames for the release of a decision.

The TAG therefore recommends by majority that consent hearings must be closed no later than 10 working days following completion of the last party’s presentation at the hearing. This should give those hearing the application enough time to undertake a site visit after the hearing or to receive any final incidental information. Our expectation is that this will serve to reduce delays in the making of decisions, or at the very least, add credibility to the council’s compliance statistics.

The minority view is that this simply adds 10 working days to the 15 day period within which decisions should be released. It would be better for the law to make it clear that a hearing concludes following the right of reply when delivered orally, or on receipt of the right of reply by the local authority when delivered in writing.

2.11 Third party participation in appeals – section 274

An issue of standing arises in relation to appeals against council decisions, not only on applications and proposed designations, but also on plan matters.

Section 274 provides an entirely appropriate procedure whereby those who made a submission on an application, the decision on which is subsequently appealed to the Environment Court, may file with the Court a notice of their intention to participate in the appeal.

However, people who did not exercise their rights of participation in the first instance may also join in at the second round and participate in the appeal. Furthermore, when agreement is reached between the applicant and the appellant as to the appropriate resolution of the appeal, section 274 parties may carry on the appeal even though the appellant no longer wishes to pursue it.

We recommend that that section 274 parties who are not themselves appellants no longer have the right to carry on an appeal which the appellant does not wish to pursue.

Further, anyone intending to exercise the rights of section 274 parties at present has 30 working days (i.e. 6 weeks) to write a simple letter to the Court advising of that intention. By contrast, intending appellants have only 15 working days (i.e. 3 weeks) to file a notice of appeal with the Court. We see no need for this extended period of 30 days, and recommend that, in an endeavour to further streamline the Act, this be reduced to 15 days.

There is also a level of uncertainty as to the date from which the period for the filing of a section 274 notice runs. To overcome this, we suggest that the Act be amended to specifically provide that a notice is to be filed within 15 days from the date of the closing of the appeal.

We also recommend that section 274 be amended by removing the entitlement to join appeal proceedings currently enjoyed by persons who did not make an original submission, but who later claim to represent a relevant aspect of the public interest. Anyone is able to make a submission on a publicly notified application, and it is important to encourage those with concerns either of a public or private interest nature to participate from the outset, and not to delay raising merits issues until a late stage by way of section 274. This would provide a greater level of certainty for appellants and consent authorities.

2.12 Direct referral to Environment Court

The granting of an automatic right of appeal to the Environment Court against council decisions on consent applications, and the de novo nature of that appeal, mean that applicants and submitters are often put to the expense of putting their own case twice; once to the council and again to the Environment Court.

We considered whether the de novo aspect of the appeal should be removed and all appeals just decided on the papers, with leave being required to adduce further evidence. On balance, however, we considered that would not be an appropriate response, bearing in mind that applications often evolve in their detail between the two hearings, that questions of credibility do arise, that the Environment Court needs to have the ability to hear the witnesses, and that as there is no cross-examination at council hearings, the Court benefits from hearing the evidence afresh.

That is not to say that improvements could not be made in the way in which the Courts hear appeals, and indeed welcome changes have been made in that regard over recent times.

There are a number of cases however, where all parties to the council hearing know that the hearing is just a prelude, a first round of a process which is inevitably destined to reach the Environment Court.

In those cases, the first hearing can be seen as a largely unnecessary, expensive and time consuming exercise. We are not saying that the Council hearing is without benefit. That is clearly not so. We are however saying that those benefits are outweighed by the burdens imposed by the additional costs and delays.

We therefore recommend that a right of direct referral to the Environment Court be introduced, so that with the agreement of the council, the first hearing may be dispensed with and the application proceed immediately to the Court.

This reform would not merely be of benefit to applicants. We are aware of the difficulties faced by many community groups in resourcing, both in terms of funding and time commitment, their appearance at two hearings. The files of the Environmental Legal Aid (ELA) fund provide ample testimony of this. The burden of raising for example $10,000 – $20,000 or more for the Council hearing (which is not able to be funded by the ELA), then a further amount, often considerably larger, for the inevitable appeal hearing, is often more than can be reasonably contemplated. We consider that this reform will be of considerable benefit to both community groups and applicants.


5 As stated by the Chief Justice in Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] 2 NZLR 597:

"[10] The district plan is key to the Act’s purpose of enabling “people and communities to provide for their social, economic, and cultural well being”. It is arrived at through a participatory process, including through appeal to the Environment Court. The district plan has legislative status. People and communities can order their lives under it with some assurance. A local authority is required by s 84 of the Act to observe and enforce the observance of the policy statement or plan adopted by it. A district plan is a frame within which resource consent has to be assessed."