What does the Environment Court consider?

Resource consents

If you are the applicant, the consent holder, or have made a submission, you may appeal council decisions on the following:

• an application for a resource consent (except for deemed permitted boundary activities)
• an application for a change of consent conditions
• a review of the conditions of an existing consent.

Unless the Environment Court decides otherwise, the consent cannot be given effect (or the work started) until the appeal has been resolved. Anyone who has objected to a council decision about matters such as additional charges or costs, or further information requests, may appeal the council’s decision on their objection to the Environment Court.

Planning matters

If you have made a submission on a proposed plan or policy statement, a change to an operative plan or a variation to a proposed plan, you can appeal the council’s decision, if the council has followed the standard plan-making process (and not used a streamlined or freshwater process and the matter is not a proposal of national significance). Your appeal must be limited to the subject matter of your original submission. You can also appeal a council’s decision to reject your request for a change to a plan or policy statement.

Abatement notices

If you have received an abatement notice from a council requiring you to stop, or not to start, a certain activity, you can appeal this in the Environment Court.

You can also apply to the court for a stay (suspension) of the abatement notice. If the court orders a stay, you will not have to comply with the notice while your appeal is being resolved. If the court has not granted a stay, you must comply with the notice. It is an offence not to comply, and you could be prosecuted through the District Court.

Designations

The RMA allows for ‘requiring authorities’ (a Minister of the Crown, local authority, or an approved network utility operator such as an electricity operator) to request that an area of land be designated for use as a network utility (such as a road or telecommunications facility) or a large public work (such as a school or prison). The area is identified in the local council’s district plan, and known as a ‘designation’.

A requiring authority that wants a designation must first give the council a notice of requirement. The council may decide to:

• publicly notify the application, or
• limited notify the application to those people it considers to be affected, or
• not notify the application.

If the application is notified, the council hears submissions on it. The council then makes recommendations (taking into account any submissions received) to the requiring authority. The requiring authority can accept or reject these recommendations, and may modify the requirement.

If the Minister for the Environment considers that a notice of requirement is a matter of national significance, it can be directed to a board of inquiry or the Environment Court to make a decision.

The requiring authority can also apply to the council to refer the designation application directly to the Environment Court (a ‘direct referral’). If this occurs, the court makes the decision on the designation. Appeal of this decision is to the High Court and only on points of law, rather than on the environmental matters at issue.

In the case of the designation being processed at council level, the council, or anyone who has made a submission, can appeal to the Environment Court against the requiring authority’s decision. The court can confirm or cancel the requirement, or can modify or impose conditions on it.

Alternatively, the council may notify the designation as part of its proposed plan. There may also be existing designations that a requiring authority wishes to continue or to modify in a proposed plan.

Submissions can be made to the council about the plan, including any designations it contains. If you have made a submission, you can appeal against the decision of a requiring authority regarding a designation. These processes also apply to heritage protection orders that are required by heritage protection authorities. Certain restrictions apply on the appeals if there was a streamlined planning process directed by the Minister.

Appeals can also be lodged with the Environment Court that involve legislation other than the RMA. They are:

• Objections to compulsory taking of land
  • Public Works Act 1981
• Appeals about archaeological sites
  • Relevant legislation: Heritage New Zealand Pouhere Taonga Act 2014
• Appeals about felling beech forests
  • Relevant legislation: Forests Act 1949
• Objections to road stopping proposals
  • Relevant legislation: Local Government Act 1974
• Objections regarding access to limited access roads
  • Relevant legislation: Transit New Zealand Act 1989
• Appeals about regional pest management strategies
  • Relevant legislation: Biosecurity Act 1993
• Disputes over access to private land to maintain electrical transmission lines
  • Relevant legislation: Electricity Act 1992
• Administration of existing privileges
  • Relevant legislation: Crown Minerals Act 1991
• Appeals against allocation decisions of regional councils
  • Relevant legislation: Māori Commercial Aquaculture Claim Settlement Act 2004.

As well as appeals, councils or individuals can make applications to the Environment Court. The most common applications are declarations and enforcement orders.

The Environment Court can be asked to define or clarify a matter relating to the operation of the RMA. This is called a declaration.

Here are some examples:

• A council may apply for a declaration that an activity is not allowed by the RMA or by a council plan.
• Individuals can seek a declaration, such as in cases where they consider that they have existing rights to use an area. The court can declare that a person must adopt the best option to avoid or minimise adverse effects on the environment.
• Individuals can seek a declaration about the work of a council – for example, that a proposed provision in a plan is inconsistent with a regional policy statement.

Enforcement orders

An enforcement order is used to ensure a person complies with any rules or orders under the RMA. It is generally used after other measures haven’t worked. The Environment Court can order that a person does not start, or does not continue, an activity that it considers will have an adverse effect on the environment.

The court can also require that any harm be remedied or mitigated, and order reimbursement for anyone who has spent money doing this due to the actions of someone else.

Usually, anyone can apply for an enforcement order. The exceptions are orders that enforce a resource consent condition, or a rule in a plan that requires a person to adopt the ‘best practicable option’ to avoid or minimise adverse effects of a discharge. In such cases, only the consent authority or the Minister for the Environment may apply.

An enforcement order can be brought against anyone. With the exception that an enforcement order can only be made against an instrument of the Crown if it is a Crown organisation and the enforcement order is brought by a local authority and the order is made against the organisation in its own name.

It is an offence for a person not to comply with an enforcement order.