Declarations not a backdoor to challenge resource consents
Declarations not a backdoor to challenge resource consents
Wednesday 30 March, 2022
Local authority decisions on notification of resource consent applications can be controversial, as those who consider they are affected often feel strongly about having input into the decision. Section 310(h) of the Resource Management Act 1991 (RMA) allows people to seek a declaration on any issue or matter relating to the interpretation, administration, and enforcement of the RMA, except on issues related to notification of applications. A recent Environment Court case considered the interpretation of this section.
Background
The defendant sought declarations against Thames-Coromandel District Council (TCDC) in relation to consents which TCDC had granted on a non-notified basis for events in Opoutere. The defendant alleged that TCDC had contravened conditions and made procedural errors when granting the consents, and the lack of a traffic management plan created public safety issues.
Opoutere event
TCDC granted consent for a two-day motorcycle festival, with three days of camping, for up 20,000 people. The defendant sought a declaration that TCDC were “inconsistent, negligent, and or unreasonable” by granting consent for this event.
Jurisdiction to review Council decisions
The Court considered the scope of the power to make declarations under s 310(h) and pointed out that this section does not give it the power to review a council’s decision on whether to notify a resource consent application, including the council’s assessment of whether effects were “less than minor” or whether there were any affected persons. The Environment Court considered that the defendant’s challenge was effectively a challenge to the TCDC’s notification decisions and decisions to grant the consents, so the Court did not have the power to make the declarations sought. The Court also pointed out that s 310(h) does not give it the power to effectively judicially review administrative actions under the Act as this would “effectively render the limits of the preceding powers under s 310 redundant.”
In relation to traffic management, the Court held that this was a difference of opinion between the defendant and TCDC and this should not have been raised in declaration proceedings for a non-notified resource consent.
Conclusion
The ability to challenge notification decisions and non-notified consent decisions is very limited, so those wanting to have input into resource consent applications will often look for other ways to challenge the decisions. However, the right to seek a declaration under s 310(h) cannot be used as a backdoor to challenge notification decisions or administrative decisions.
Talk to one of our experts
Related Articles
Councils challenge to transfer of water services rejected in High Court
Thursday 30 March, 2023
When the rubber hits the road - All aboard Aotearoa's challenge
Tuesday 11 October, 2022
Declarations that an Enactment Inconsistent with Bill of Rights
Tuesday 11 October, 2022
Proposed mandatory consideration of specific Māori representation
Tuesday 11 October, 2022
New Regime for Protected Disclosures (Whistleblower legislation)
Wednesday 29 June, 2022
Operative plans and proposed plans: what to do when there is a significant policy shift?
Wednesday 30 March, 2022
Notices of requirement are relevant for resource consent applications
Wednesday 30 March, 2022
Avoidance policies reign in the wake of King Salmon, but what do they require?
Wednesday 30 March, 2022
Court gives guidance on consultation and decision-making process
Wednesday 30 March, 2022
Cultural evidence and the continued draw of the overall judgment
Tuesday 21 December, 2021
Fluoridation debate lifted from shoulders of local government
Tuesday 21 December, 2021
Will new housing density rules increase contributions for developers?
Thursday 28 October, 2021
Judicial review of Hamilton City Council's development contributions policy
Tuesday 5 October, 2021
Lease of Wanaka Airport set aside due to insufficient consultation
Tuesday 15 June, 2021
What if an abatement notice requires you to breach the Resource Management Act?
Tuesday 15 June, 2021
“No ‘wine-ing’ covenants” declined for a subdivision consent in Gibbston Valley
Tuesday 15 June, 2021
From car parking fine to judicial review of a council’s code of conduct
Tuesday 15 June, 2021
Councils remain liable for compliance of contractors with the RMA
Thursday 18 March, 2021
Randerson Report released: New Direction for Resource Management
Wednesday 5 August, 2020
Could companies be liable to the public for the harm caused by their emissions?
Tuesday 10 March, 2020
Avoiding double penalties when sentencing a company and director
Thursday 23 April, 2020
Can an easement be granted over an esplanade reserve for a commercial activity?
Thursday 12 December, 2019
Draft National Policy Statement for Freshwater Management 2019 for consultation
Thursday 3 October, 2019
Local authority requiring monetary contributions on designations
Thursday 20 June, 2019
Bella Vista: MBIE Report highlights failure to perform statutory functions
Tuesday 9 April, 2019
Recent decision on "affected persons" highlights the importance of context
Wednesday 28 November, 2018
High Court finds Council liable in negligence for damage from fallen tree
Thursday 27 September, 2018
Court upholds sensible approach to local authority works on private property
Tuesday 24 July, 2018
Must Councils accept an assertion that a person is ‘suitably qualified'?
Friday 9 March, 2018
