How to appeal a NZ resource consent decision

Introduction

If you are unhappy with a decision made by your New Zealand local council ("consent authority") in relation to a resource consent, you may have a right to appeal the decision to the Environment Court.

What decisions can be appealed against?

You may appeal against the whole or any part of a decision of a consent authority where it:

• grants or rejects an application for a resource consent
• grants or rejects an application for a change in the conditions applying to a resource consent
• reviews the conditions attached to a resource consent

You do not, however, have a right to appeal a decision of the Minister of Conservation as to whether to grant a coastal permit for a restricted coastal activity.

Who can appeal?

The following people are permitted to appeal to the Environment Court:

• the applicant or consent holder
• any person who made a submission on the application or the review

Is there a time limit for lodging an appeal?

If you wish to appeal the consent authority's decision, you must lodge your appeal with the NZ Environment Court within 15 working days from the time you received the decision.

What information does my appeal have to include?

The notice of appeal must be in the prescribed form (see Form 16 of the RESOURCE MANAGEMENT (FORMS, FEES, AND PROCEDURE) REGULATIONS 2003 (SR 2003/153)), and must state:

• the reasons for your appeal
• any matters that are required to be included by the regulations
• the relief you are seeking

Appeals have been rejected on the grounds that insufficient reasons were given. It is therefore important to state in detail the grounds on which you are basing your appeal; if there is insufficient detail your appeal may be struck out.

However, if you are a layperson rather than a lawyer, the court should allow you to amend a defective notice of appeal if it is capable of being amended.

Serving notice on interested people

You must ensure that a copy of the notice of appeal is served on every other person who was entitled to appeal the decision in question (see "Who can appeal?" above) within five working days of lodging the appeal with the Environment Court.

How will the Environment Court deal with my appeal?

The Environment Court can make any decision and exercise any powers that the original consent authority could have.

The Environment Court is entitled to take into account decisions and comments from other courts and tribunals that have considered the same or similar issues. However, the Environment Court is not bound by these previous decisions and is free to consider each case on its own facts and merits. The failure of the Environment Court to take into account previous decisions cannot be regarded as an error of law.

If the original application for a resource consent was invalid (for example, because you didn't comply with the requirements for applications), then you have no right of appeal, and the Environment Court does not have power to hear an appeal.

Appeals may also be struck out if the court thinks that they are frivolous or vexatious or that they present no reasonable or relevant case.

It appears that in hearing an appeal the Environment Court is limited by the scope of your notice of appeal. For example, if your appeal is only against the conditions on which the resource consent was granted, the court has no power to consider whether the consent itself should have been granted.

The procedure in the Environment Court

The Environment Court has a wide discretion and may regulate its own proceedings as it thinks just in the circumstances. The court may choose to conduct proceedings in a procedurally informal manner if this is consistent with fairness and efficiency. The court is required to recognise tikanga Maori where appropriate.

There are provisions within the RESOURCE MANAGEMENT ACT 1991 that govern the presentation of evidence, procedure, costs, site inspections and adjournments.

The Environment Court may hear two or more proceedings together if they relate to the same subject matter, unless the court thinks it impractical, unnecessary or undesirable to hear them together.

Can I appeal from the Environment Court's decision?

The decisions of the Environment Court are final, unless there is an appeal to the High Court on a question of law. Therefore you cannot appeal beyond the Environment Court on the merits of the consent authority's decision.

However, if after the Environment Court's decision is given new and important evidence becomes available or there is a change in circumstances that might have affected the decision, the Environment Court may agree to rehear the proceedings.

Cautionary notes

• Because the decision of the Environment Court is final (except for appeals to the High Court on questions of law), you have only one chance to appeal. It may therefore be in your best interests to obtain the services of a resource-management lawyer to ensure that your notice of appeal is drafted correctly and contains all the necessary information.