For those prospective resource consent applicants who have contemplated applying for a consent but have been put off by strong public opposition to the proposed activity, an application for direct referral may be an option for you.
Picture this. You have applied for resource consent, it has taken a matter of months to process and has cost a lot of money, but to your delight consent is granted. Now imagine if the consent is then appealed to the Environment Court. What you are then faced with is having to establish your case all over again. Add in the further costs and time and what seems like a done deal turns into a nightmare.
For those who feel that an application for resource consent will encounter strong public opposition, there is another way. The 2009 amendments to the Resource Management Act 1991 introduced the ability for an applicant to have their application decided directly by the Environment Court and enable the council hearing stage to be skipped. This means if there is strong public opposition and it is likely that any decision confirming consent will be appealed, the costs and time associated with having a council hearing first can be avoided.
The process for making a direct referral request is quite straightforward. However, a council may reject the request and decide to proceed with processing of the application itself. In that event, an applicant can lodge an objection against this decision.
If the council accepts the request, it will prepare a report that contains an assessment of the application. Upon receipt of that report the applicant then has the opportunity to decide whether it wants to continue with the direct referral process or request that the council continue to process the application.
Although direct referral may seem like a brilliant option, there are some factors that applicants need to consider:
- The applicant will be required to pay the Court’s costs of processing the application. These costs could include payment for a venue and any other expenses incurred by the Court. Court costs are not normally claimed from an applicant in the event of an appeal against the council decision.
- The applicant will have to pay the council directly for its costs associated with processing the application for direct referral and preparing a report for the Court. The applicant may also be required to pay some or all of the council’s Court costs. If successful with an appeal, an applicant is not normally required to pay these costs.
- People who made submissions on the application will have the opportunity to be involved in the Court process as s 274 parties. If the application is declined by the Court, the s 274 parties will have the opportunity to apply for costs to be met by the applicant.
The costs associated with a direct referral may appear high. However, it is important to remember that some of these costs would be payable in any event - for example, the council’s costs of preparing a report on the application. An applicant also has the major benefit of being able to avoid two hearings on the one application. This can save on time and money.
If you think that an application for direct referral may benefit you, please feel free to contact us to discuss the possibility further.
Published: 20 January 2020