Direct referral to Environment Court

The direct referral process may be useful for those applications which are highly likely to be appealed to the Environment Court after the council has made a decision. The direct referral process allows the matter to be heard by the Environment Court in the first instance, thereby avoiding the need for two full hearings in the event of an appeal. The process applies to both notified resource consent applications and applications to change the conditions of a resource consent that has been notified. ⁷⁹⁹  This process is separate to the ‘call in’ process for matters of national significance.

If you are an applicant, you can make a request to the council to allow your application to be determined in the first instance by the Environment Court. You can make the request anytime after the application has been formally lodged with the council up until 5 working days after submissions have closed. ⁸⁰⁰   The council must return the request if the application is incomplete or the council decides not to notify the application. ⁸⁰¹

The consent authority has 15 working days to make a decision about your request. The consent authority has full discretion to grant or refuse the request, except that the request must be granted if the value of the investment in the proposal exceeds a threshold amount prescribed in regulations (unless exceptional circumstances apply). ⁸⁰²

Submitters have no rights to be heard on an application for direct referral. There are no rights to appeal the council's decision but the applicant may make an 'objection' to the council. Lodging such an objection gives you the opportunity to present in person arguments in support of your request for direct referral and the council is then required to reconsider the matter. ⁸⁴⁸

If the consent authority does not grant the request for direct referral then it must continue to process the application. If it does grant the request then it must continue to process the application while preparing a report on the application.  This report must address relevant issues in sections 104 to 112, include suggested conditions in the event that the resource consent is granted by the Environment Court, and provide a summary of submissions received. A copy of the report must be provided to the applicant and to all submitters. ⁸⁴⁹

Once you receive the report you must decide whether you still want the application to be determined by the Environment Court. If the council's report is supportive of the application you may decide that it would be preferable to be heard by the council in the first instance.

If you decide to proceed with the direct referral process then within 10 working days you must lodge documents with the Environment Court. The documents required include a notice of motion in the prescribed form applying for the grant of the consent (or changes to the conditions) and specifying the grounds upon which the application for the grant of the consent is made and a supporting affidavit. ⁸⁵⁰  

After lodging the documents with the Environment Court you must serve copies on the council and every submitter. You must also advise the Registrar of the Environment Court when the copies have been served. ⁸⁵¹

The council must then provide to the Environment Court with a copy of the original application, the council's report, the submissions and all the information and reports that the council has received. ⁸⁵²

Any person who has made a submission on the application and wishes to be heard by the Environment Court must give notice to the Environment Court in accordance with section 274. ⁸⁵³

The Environment Court then determines the matter as if it was the council.  If consent is granted, the council has responsibility for monitoring, enforcement, and any review of conditions. ⁸⁵⁴

The Environment Court Practice Note contains guidance on the direct referral process.

Last updated at 9:14AM on January 5, 2018