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Filing appeals - time limits and waivers

Filing appeals - time limits and waivers

Filing appeals - time limits and waivers

Tuesday 5 October, 2021

Almost since the introduction of the Resource Management Act 1991 (RMA), successive governments have been trying to tighten timeframes set out in the Act in order to reduce delays and holdups for those seeking resource consent. This has included imposing strict time limits for those who wish to appeal decisions made under the RMA or associated legislation.

However, section 281(1)(a) of the RMA gives the Environment Court the power to waive a statutory or regulatory requirement relating to the filing of an appeal or submission to the Environment Court. The High Court recently considered the interpretation of s 281 of the RMA in Ngāi Tamahaua Hapū Committee’s appeal against the Environment Court’s refusal to extend the timeframe for lodging appeals against Heritage New Zealand Pouhere Taonga’s (“HNZPT”) grant of archaeological authorities to the Ōpōtiki District Council.[1]


The Council was carrying out a substantial development of Ōpōtiki Harbour which risked modification or destruction of local archaeological sites, so the Council obtained three archaeological authorities from HNZPT for preliminary enabling works, wastewater system remediation and the substantive harbour works. Archaeological authorities start when the time for lodging an appeal expires, if no appeal has been lodged, or when an appeal is withdrawn or determined by the Environment Court. The Committee’s appeals were filed 128, 23 and four working days late.

Prejudice to the parties

The Environment Court cannot grant a waiver unless the parties consent to the waiver or it is satisfied that none of the parties to the proceedings will be unduly prejudiced by the waiver. The Environment Court refused to grant the Committee a waiver for the first authority because the works had already been completed by the time the appeal was filed. The second and third appeals were less substantially delayed but had been inadequately explained and there was significant prejudice to the Council because the wait to determine the appeal would upset the Council’s contractual arrangements.

The High Court upheld the Environment Court’s decision to refuse to waive the time limits. Environment Court decisions can only be appealed to the High Court on matters of law, meaning that the decision must be “clearly insupportable” as a proper application of the law, whether by mistaking the applicable law, disregarding relevant matters, considering irrelevancies, or otherwise being “clearly untenable”.

The High Court held that the Environment Court’s view on the prejudice to the Council was available on the facts, so was not appealable as a matter of law. The High Court dismissed the appeal and awarded costs against the Committee.

Court’s discretion

This decision can be contrasted with a recent Environment Court decision where the Court granted a waiver because the failure to meet the appeal deadline was due to a technological failure, rather than any failure to comply. The appellant’s lawyer had tried to file the appeal electronically before the deadline but was unsuccessful because the file was too large. The lawyer did not realise that the Court had not received the appeal until after the expiry of the deadline for filing the appeal.

The Environment Court stated that a party applying for a waiver under s 281 has to meet two tests. The party must first meet the threshold test of establishing that there is no undue prejudice to the parties to the proceeding. Then the overarching test is whether the Court should exercise its discretion in the party’s favour. The parties to this appeal consented to the waiver, so the Court held that the appellant had met the threshold test, with no undue prejudice to any party. Turning to the overarching test, the Court noted that the appellant had tried to file, and genuinely believed that she had filed, the appeal within the timeframe. The Court was satisfied that the failure to comply with the deadline was solely due to a technological error, rather than a failure to comply with Court timeframes, so held that the appellant had established that the Court should exercise its discretion in her favour.


While the Environment Court’s decision may come as a relief to those struggling with technology, particularly during the current lockdown, those asking the Environment Court to waive filing deadlines need to be aware that, not only must they show no undue prejudice to the other parties to the proceedings, they also have to convince the Court that this is a suitable case for the Court to exercise its discretion in the applicant’s favour.


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