Who can apply?
Section 311 of the RMA provides that subject to subsections (2) and (3), any person may at any time apply for a declaration:
- subsection (2) provides that a declaration that a person is failing to adopt the best practicable option, may be sought only by the Minister of Conservation or the consent authority
- subsection (3) provides that a declaration as to the location of the boundary of the coastal marine area, may be sought only by the Minister of Conservation, a local authority or the consent authority.
An application for a declaration must be in the form prescribed by the regulations of the Resource Management (Forms, Fees, and Procedure) Regulations 2003. The proceedings may be heard by an Environment Court Judge sitting alone, or with commissioners. Section 313 of the RMA permits the Court to decline the declaration sought or to make it "with or without modification". Accordingly, a declaration may be in different wording than that originally proposed by the applicant.
Giving notice to affected parties
Section 312 of the RMA requires that the applicant for a declaration serve notice of the application on every person directly affected by the application, within five working days after the application is made to the Environment Court.
Court 's discretion to grant a declaration - s313 of the RMA
Section 313 of the RMA gives an Environment Judge sitting alone or the Environment Court discretion as to whether to grant a declaration. There have been examples of the Court exercising its discretion to decline and application. However, the High Court has also held that a resultant declaration being precise and restrictive was not a sufficient reason in itself to decline to make any declaration at all. See for example Wellington Regional Council v Burrell Demolition Ltd  W98/00,  HC AP25/01, and  CA 161/01.