Lodging an Appeal

If you consider the decision of the consent authority is wrong on a resource consent application, you may decide to lodge an appeal with the Environment Court. The Environment Court will look at the merits of the decision, as well as whether it was the correct decision on the law.  What can and cannot be appealed depends on the process that is being followed. 

Who can appeal?

In resource consent proceedings, the applicant or any submitter may lodge an appeal. ¹¹⁵⁷  In plan proceedings, any person who made a submission may lodge an appeal. ¹¹⁵⁸

How to prepare a notice of appeal?

Resource consent appeals must be prepared in accordance with Form 16 of the Resource Management (Forms, Fees, and Procedure) Regulations 2003.

Plan appeals must be prepared in accordance with Form 7 of the Resource Management (Forms, Fees, and Procedure) Regulations 2003.

Examples

The most important part of your appeal is the relief you are seeking, this is the decision you are asking the Environment Court to make. The relief you seek in your Notice of Appeal will confine the outcome of your appeal. The relief sought must be within the scope of that sought in your original submission or further submission. That means that you cannot expand the relief sought but you can reduce it.

Under the resource consent process 

Under the Schedule 1 process it is possible to appeal any provision or matter included in or excluded from the policy statement or plan (if of course your submission or further submission referred to that provision or matter). 

Appeals on the merits to the Environment Court are limited under the streamlined planning process and the freshwater planning process.  

Under the streamlined planning process there is no ability to appeal the decision of the Minister or local authority to the Environment Court, or any other Court.  This means that if you want to challenge the decision you would have to do so by judicial review. ⁵¹⁷²

Under the freshwater planning process it is only possible to appeal to the Environment Court in respect of a matter or provision in respect of which the local authority rejected the recommendation of the freshwater hearings panel.  You cannot appeal to the Environment Court in respect of a matter or provision in respect of which the recommendation of the panel was accepted. ⁵¹⁷³   Where recommendations are accepted, you can only appeal to the High Court on a point of law. This means the Court will only look at whether the decision was available to be made on the law, it will not look at the evidence and make its own decision about whether it should have been made or not.

When you are drafting your relief be as precise as possible about what changes you would like to the decision and the related provisions of the proposed plan. Then, always include broad, concluding 'catch-all' phrases to give you room to address other related issues/wording changes which you may have missed or modifications which you may wish to make at a later For example: Any additional changes which are required to the text and the maps of the Proposed Plan to give effect to the relief sought in this appeal.

Your Notice of Appeal must also clearly state the reasons for your opposition to the decision. Unlike the relief (which must be within the scope of that sought in your original submission or further submission), the reasons need not be restricted to the grounds stated in your submission or further submission. You can raise additional grounds which may have become evident during or after the hearing. Make your grounds as specific as possible, so that the other parties have a clear idea of what issues you intend to raise at the hearing.

Lodgement and service of appeal

For resource consents you need to lodge the signed original and one copy of your notice of appeal and attachments with the Environment Court within 15 working days of receiving the decision. Although there is no ability to appeal a decision relating to a boundary activity as defined under the Act, unless the boundary activity is classified as a non-complying in the relevant plan.

For plans you need to lodge the signed original and one copy of your notice of appeal and attachments with the Environment Court within 30 working days of receiving the decision.

Documents need to be lodged with the appropriate Environment Court office. For proceedings in the South Island, documents are lodged at the Christchurch Office; for proceedings in the lower half of the North Island, documents are lodged in the Wellington Office; and for proceedings in the upper half of the North Island, documents are lodged at the Auckland office. If you are not sure which is the appropriate office, check with the Environment Court. 

Documents can be lodged by hand, courier, post, or email. If you lodge your notice of appeal by email you should post the signed original and one full copy with attachments with the filing fee. The Court does not need to receive the filing fee before the closing date for appeals but you need to advise the Court in the document filed by the closing date that payment will be mailed with the original documentation.

If your notice of appeal is lodged after the closing date, you must apply to the Environment Court for a waiver of the time limit.

You also need to deliver a copy of the appeal documents to:

• The authority which made the decision you are appealing (within 15 working days of receiving the decision for resource consents and within 30 working days of receiving the decision for plans)
• All other people who made submissions on the resource consent application or proposed plan (within five working days of lodgement with the Environment Court)
• In the case of resource consent appeals, the applicant (within five working days of lodgement with the Environment Court)

If you are not sure of the correct 'service' address for the applicant or other submitters, contact the council for details. Documents can be served by hand, courier, post, or email. If you serve a copy of your notice of appeal by email you do not need to post a hard copy. You also do not need to attach copies of your submission or the decision of the consent authority if the appeal document lists these documents and states that copies may be obtained, on request, from the applicant.

Within 10 working days of lodging the appeal with the Environment Court you must write to the Registrar of the Court advising of the name, address and date of service for each person served.

Costs involved

The Environment Court charges a $600 filing fee for lodging an appeal. However, you may be eligible for a waiver, reduction or postponement of Environment Court fees. To apply you should complete a Request for Waiver, Reduction or Postponement of Fees and forward the completed form to the appropriate registry office who will contact you once a decision has been made by the Registrar.

You may also need the assistance of a lawyer and other professionals to support your appeal. The Environment Court can award costs against an unsuccessful appellant. For resource consent appeals the Environment Court may require you to provide security to cover any costs which may be awarded against you if your appeal fails.

You may be eligible to apply for Environmental Legal Assistance Funding.

Checklist

Ensure that you have:

• Used the correct form in the Resource Management (Forms, Fees, and Procedure) Regulations 2003.
• Clearly indicated the grounds for your appeal.
• Clearly identified what decision you would like the Environment Court to make.
• Ensured all the attachments are in place.
• Signed and dated the notice of appeal and provide your full name, address, telephone and email address.
• Checked that the appeal documents are lodged with the Environment Court on time.
• Carried out service on the consent authority, applicant and all submitters on time.
• Advised the Registrar in writing of the name and address of the people on whom you have served your appeal documents and the date on which they were served on time.

Get advice

Commencing proceedings in the Environment Court carries a risk that you may have costs awarded against you if unsuccessful. You may therefore wish to seek the advice of a lawyer as to the merits of the appeal before proceeding.

Further information

The Practice Note 2014 is a guide to practice in the Environment Court. All parties participating in Environment Court proceedings should be aware of its contents.

Last updated at 11:45AM on August 23, 2021