Monitoring and enforcement of the decision
If the Environment Court grants the application, the council becomes responsible for monitoring and enforcing the decision, including all conditions. The need for enforceable consent conditions also reinforces the role that council has to play in the Court hearing as the Court will likely require advice from the council regarding suitable consent conditions, which may evolve throughout the course of the hearing.
Costs and cost recovery
Under s285, the Environment Court may order any party to proceedings before it to pay costs and expenses to any other party that the Court considers reasonable.
With respect to the Court’s costs, s285(3) enables the Environment Court to recover its costs and expenses from any party and s285(5) states the Court must apply a presumption that the Court’s costs and expenses are to be ordered against the applicant in direct referral cases. The Court will seek to recover the actual and reasonable costs associated with a direct referral case. The Court can be contacted to discuss their cost estimate for a particular case.
Councils are able to recover their costs in carrying out their functions in relation to receiving and processing applications to the point that the application is transferred to the Court. However, in terms of their Court costs, councils will need to make an application to the Court in the usual way to recover their costs incurred in the Court process. This includes time spent appearing at the Court hearing. Therefore, councils should keep accurate records of time spent, prior to and following the direct referral of the application to the Court, with detailed descriptions to assist with cost recovery.
The council can recover all of its costs involved in the processing of the application up to the point of direct referral using section 36 of the RMA. This includes the preparation of the planning report. The council’s costs in attending the hearing can be awarded under section 285.
Further information on costs is provided in the Environment Courts Practice Note 2014 and in the Ministry for the Environment’s An Everyday Guide to the RMA The Environment Court: Awarding and Securing Costs.
Do the Discount Regulations apply to the direct referral process?
The Resource Management (Discount on Administrative Charges) Regulations 2010 apply to council charges on applications for resource consent and applications to change or cancel a resource consent condition, including resource consent applications where an applicant has requested direct referral.
The Regulations require councils to provide a discount where a resource consent application is not processed within the timeframe(s) set out in the RMA. Councils can develop and adopt their own discount policy that is more generous than the Regulations. The Regulations do not apply to any of the costs of the Environment Court.
The Discount Regulation applies when:
- an applicant requests direct referral under s87D, and
- the applicant does not withdraw the application that is the subject of the request, and
- the application is not processed within the time limits applicable to it.
The discount is one per cent of the total of the administrative charges the council imposes for every working day on which the application remains unprocessed beyond the time limits, up to a maximum of 50 working days.
There is no total time limit specified in the RMA that is applicable to applications that are affected by direct referral. Therefore the separate timeframes and the time exceptions for different stages in a consent process where a request for a direct referral is made need to be selected and added together to find the total time limit for each application on a case-by-case basis. To assist with the calculations, refer to the Ministry for the Environments Discount Regulations guidance.
For direct referral applications, a discount needs to be given if the number of working days described in the applicable scenarios below is smaller than the number of working days actually taken:
- If the applicant files a notice of motion in the Environment Court, the timeframe starting on the day after the day on which the application is lodged, up until the last day of the period described in s87F(3) (ie, the last day of the 20 working day period within which the council must prepare their report for the Court).
- If the applicant does not file a notice of motion in the Environment Court and the council determines the application, the timeframe starting on the day after the day on which the application is lodged and ending on the day on which the council complies with s114(1) (ie, notice of notification decision) within the time limits in s115 (ie, time limits for notification decision). Where a hearing is required, this this is likely to be a total of either 130 working days for publicly notified applications or 100 working days for limited notified applications. Where no hearing is held, the timeframe will be 60 working days to issue a decision in total.
The number of working days actually taken is calculated by totalling the number of working days (excluding the ‘excluded days’ which are set out in the Regulations) used to process the application in the applicable timeframe.