Considering and determining substantive applications

Actions undertaken by panel convener upon receipt of substantive application 

Once a substantive application is provided to the panel convener the following must occur:

• The convenor sets up a panel.  
• The convenor directs the Environmental Protection Authority to provide to the panel, applicant and other listed parties any relevant advice from administering agencies and specified reports.  
• The convenor provides other relevant information to the panel. 

Invitation for comment 

No later than 10 working days after a panel is set up, a panel must direct the Environmental Protection Authority to invite comments on a substantial application from: ^{d4b61a50-0a24-4d0e-b0c0-b026295023d7}  

• Any relevant local authority, administering agency, iwi authority and Treaty settlement entity, protected customary rights group and customary marine title group
• Any applicant group that seeks recognition of customary marine title or protected customary rights within the area to which the substantive application relates
• Ngā hapū o Ngāti Porou if the area to which the substantive application relates is within or adjacent to, or the activities to which it relates would directly affect, ngā rohe moana o ngā hapū o Ngāti Porou
• The tangata whenua of any area within the area to which the substantive application relates that is a taiāpure-local fishery, a mātaitai reserve, or an area that is subject to bylaws or regulations made under Part 9 of the Fisheries Act 1996
• The owners of the land to which the substantive application relates and the land adjacent to that land
• The occupiers of the land to which the substantive application relates and the land adjacent to that land
• The Minister for the Environment and other relevant portfolio Ministers; and
• Any requiring authority that has a designation on land to which the substantive application relates or on land adjacent to that land; and
• Additional specified parties depending on the type of approval sought in the substantive application (see Schedules section). 

The panel can also invite comments from any other person it considers appropriate. ^{85e800ef-a1ce-42eb-973c-37d4322a7ae5}   
Parties have 20 working days to provide their comments to the Environmental Protection Authority. ^{c1de92d9-0286-46da-b153-40603062ca9c} No waiver of that time limit is available.

The EPA must forward the comments to the applicant and the applicant can choose to reply to the comments within 5 working days of receiving them. ^{7507fae9-1d44-432e-a6d0-c63468e1d2a8}

Hearings

Hearings on substantive applications are not mandatory, and no one has a right to be heard. ^{2948e585-1e50-4c06-b7c3-7308971f78cf}   

If a hearing is to be held:

• The panel can hear from the applicant, any person commissioned by the panel to write a report and any person or group that provided comment.
• These parties must be given 5 working days’ notice of the hearing and must advise of their intention to appear within 3 working days of receiving the notice. ^{1ebc96d8-10d1-456a-8d25-41b4beb0e490}
• They can be represented, and they can call evidence 

The panel has a broad discretion to conduct the hearing as it sees fit. Including whether to allow cross examination,  limit the circumstances in which persons with the same interests may speak or call evidence,  and conduct a hearing online. 

When conducting hearings and undertaking other procedural matters, the panel convener and the panel must comply with various Treaty and Māori arrangements or obtain the agreement of the relevant party under those arrangements to deviate from what is required under them. ^{d3b78ea4-c8ed-4530-901f-89a83bf1cbd3}

Suspension of processing substantive applications

Processing of a substantive application can be suspended if:

• The applicant has not paid costs recoverable to the Environmental Protection Authority. The hearing can resume once those fees are paid.  
• The Minister considers that different or further approvals are required and those approvals would mean that the project could be better understood.
• The applicant requests it and the panel grants that request.
• The Environmental Protection Authority commissions advice on behalf of the panel relating to any risks to, or potential liabilities of, the Crown in relation to a concession, land exchange or access arrangement. 

During a suspension of processing of a substantive application the clock stops running on the processing time of the application.  If a substantive application is suspended for more than 50 working days (cumulatively, if an application is suspended more than once) the panel can decide to return the application to the applicant or resume the hearing.  

The Act specifies what parties must be notified under each of the suspension categories. 

Requests for further information 

The panel can request further information on a substantive application from the applicant, relevant local authority or administering agency or any person invited to provide comment on the application. The Environmental Protection Authority manages this process for the panel.The information must be provided within 10 working days of the request, or the panel can proceed as if the request had been declined. In which case, the panel must proceed with considering the application.  

The panel can also ask the Environmental Protection Authority to commission a report for it on an issue relevant to the application. Further, specific information, can also be sought in relation to a substantive application that seeks approval for a concession, land exchange or access arrangement. ^{7ff38cef-fb92-4154-b523-2fa20c0a5abf} That includes advice on any risks to, or potential liabilities of, the Crown in relation to any of these approvals.  An application can be suspended while this advice is sought. 

Draft decisions 

Before a panel declines a substantive application, it must give an applicant opportunity to rectify any issues. That includes giving the applicant the chance to propose conditions or modifications to the approvals sought or withdraw part of the application. 

Before a panel grants an application, it must invite comments on the draft conditions from the applicant, every person or group who provided comment on the application, and any relevant statutory body with responsibility to enforce or monitor compliance of those conditions.  The applicant can choose to reply to the comments within 5 working days. ^{4a630542-b496-42c8-8529-348a2b52c124}  

If a substantive application seeks approval for a coastal permit for aquaculture activities to be undertaken in the coastal marine area, the draft conditions must also be provided to the relevant chief executive for the purpose of it making a recommendation to the panel on an aquaculture decision. 

Before deciding to grant or decline consent to a substantive application, the panel must invite comments from the Minister for Māori Crown Relations: Te Arawhiti and the Minister for Māori Development on the draft decision, including any draft conditions. Those Ministers have 10 working days to respond. ^{545d49f8-1ca1-4d7d-b22e-68e13a11c22a}  

The Environmental Protection Authority manages all of these exchanges for the panel. 

Timing of decisions

The panel convenor decides how long a panel has to make a decision on a substantive application. The default timeframe is 30 working days after comments are received, ^{f798377e-7166-44f4-ab2d-ed8986febac3}   but this can be extended having regard to the scale, nature and complexity of the approvals sought and any other matters raised by the substantive application, and after consulting the relevant administering agencies. 

Aquaculture decisions must be made at the same time (see Steps by the Environmental Protection Authority after substantive application lodged, 2. If the substantive application involves aquaculture activities section). ^{56d63f5a-250a-4a50-bb01-576e0b94882b}  

Final decisions to grant or decline approvals 

A panel must grant or decline each approval sought in a substantive application.  When making its decision the panel must:

• Consider any advice, report, comment or other information received
• Consider whether granting the approval would comply with obligations relating to Treaty settlements and recognised customary rights
• Give any relevant document provided for under the Marine and Coastal Area (Takutai Moana) Act 2011 or the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019 the same effect that it would have been provided under the specified Act.
• Apply specific provisions relevant to different approvals as set out in Schedules 5 to 12 of the Act.  When taking the purpose of the Act into account under a clause in those schedules, the panel must consider the extent of the project’s regional or national benefits. 

Conditions can be imposed but they must not be more onerous than necessary. ^{39fb9231-c66a-4d97-80e4-2e1f27247a4d} Conditions can be set to recognise or protect Treaty settlements and any obligations arising under the Marine and Coastal Area (Takutai Moana) Act 2011 or the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019. 

A panel must decline an approval when it: ^{1efb5b61-f49a-481a-b7ed-c401af9ea302}  

• Is for an ineligible activity.
• Would breach obligations relating to Treaty settlements and recognised customary rights.
• Must be declined under Schedules of the Act. 

A panel may decline an approval if the panel forms the view that: ^{cd4974c8-ee26-49c8-8995-f9706de95c29}  

• There are 1 or more adverse impacts in relation to the approval sought; and
  Those adverse impacts are sufficiently significant to be out of proportion to the project’s regional or national benefits, even after taking into account—
  o    any conditions that the panel may set in relation to those adverse impacts; and
  o    any conditions or modifications that the applicant may agree to or propose to avoid, remedy, mitigate, offset, or compensate for those adverse impacts.

To avoid doubt, a panel may not form the view that an adverse impact meets the threshold above solely on the basis that the adverse impact is inconsistent with or contrary to a provision of a specified Act or any other document that a panel must take into account or otherwise consider. ^{63b903e2-0c71-40c8-ac2c-c35f635df402}

In this context, adverse impact means any matter considered by the panel that weighs against granting the approval.

Decisions must be set out in a “decision document” that contain a statement on the principle issues in contention, the main findings on those issues, reasons, and any of the specific matters required in relevant Schedules. They must be publicly notified. ^{3e089854-d628-429f-9167-6e6b58a68d0d}   

A decision to grant a land exchange is conditional until the relevant pre-conditions for land exchanges are achieved. ^{0e96e79d-5b5d-4969-964d-ab39408c6ee7} The conditions must be satisfied within 2 years of the panel’s decision or the approval lapses. ^{bc77c63a-b5ba-4ca4-9bfa-3af8565f1753}

Last updated at 7:40PM on February 7, 2025