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Proposals of national significance under the Resource Management Act

Introduction

Making decisions under the Resource Management Act 1991 (the RMA) is generally the responsibility of local authorities – regional councils or territorial authorities or both.  However, the RMA provides for the Minister of the Environment to refer proposals of national significance to a board of inquiry or the Environment Court for a decision.

The RMA was amended in 2009 to increase the ways that a proposal of national significance can come to the Minister to decide whether to ‘call-in’ the matter and refer it to a board of inquiry or the Environment Court.  Applications (for example resource consent applications or notices of requirement) required for a proposal of national significance can now be lodged with the Environmental Protection Authority (EPA).  The EPA has been set up to receive applications and make recommendations to the Minister about whether the matter should be called in. RMAA 2009 also expanded the matters the Minister can call in (for example it now includes council plan changes or variations and changes to consent conditions) and puts a nine month timeframe on decisions from a board of inquiry.

This page explains what the Minister’s powers of intervention entail, the different routes for proposals of national significance and the processes that apply. More information can be found in Fact Sheet 7: Proposals of National Significance. For specific information on the role of the EPA in relation to nationally significant projects see Preparing for an Environmental Protection Authority.

The referral process

There are three ways in which a matter may come to the Minister for a decision on whether the proposal is of national significance and should be referred to a board of inquiry or the Environment Court for a decision. These are:

  • the Minister can be formally requested to intervene in a decision-making process by either the applicant or by the council that would ordinarily make the decision after the application has been lodged with the council
  • the applicant may lodge the application directly with the EPA which will then make a recommendation to the Minister on whether the matter should be ‘called-in’ and referred to a board of inquiry or the Environment Court
  • the Minister may choose to intervene on a proposal after it has been lodged with council.

From time to time the Minister receives suggestions from the public that he/she should exercise the discretion to intervene.  Such suggestions are not formal requests, but the Minister can decide to intervene having become aware of an issue raised by a member of the public.

Any approach to the Minister requesting that he/she intervene in a local decision-making process should be made in writing as early as possible to allow the Minister sufficient time to assess the matter and decide if and how to intervene.

National significance

When deciding whether to intervene, the Minister must have regard to the extent to which a matter is, or is part of, a proposal of national significance.  In doing so, the Minister may have regard to any relevant factor, including whether the matter:

  • has aroused widespread public concern or interest regarding its actual or likely effect on the environment, including the global environment
  • involves or is likely to involve significant use of natural and physical resources
  • affects or is likely to affect any structure, feature, place, or area of national significance
  • affects or is likely to affect more than one region or district
  • affects or is likely to affect or is relevant to New Zealand’s international obligations to the global environment
  • involves or is likely to involve technology, processes or methods which are new to New Zealand and which may affect the environment
  • results or is likely to result in or contribute to significant or irreversible changes to the environment, including the global environment
  • is or is likely to be significant in terms of section 8 of the RMA (Treaty of Waitangi)
  • will assist the Crown in fulfilling its public health, wellbeing, security or safety obligations or functions
  • relates to a network utility operation that extends or is proposed to extend to more than one district or region.

When deciding whether to call in a matter, the Minister must have regard to:

  • the views of the applicant and the local authority; and
  • the capacity of the local authority to process the matter; and
  • if applicable, any recommendations of the EPA.  

Matters in which the Minister may intervene

The Minister can now intervene in the decision-making process for:

  • a resource consent application
  • an application for a change or cancellation of consent conditions
  • a notice of requirement for a designation or a heritage protection order
  • a notice of requirement to alter a designation or heritage order
  • a request that a regional plan be prepared or a change be made to a plan
  • a council’s change to its plan or variation to its proposed plan.  

This allows a wider range of matters to be considered as nationally significant and be referred to a board or inquiry or the Environment Court for a decision.

All of these matters can be directly lodged with the EPA with the exception of council plan changes or variations. In order for the Minister to call in a council plan change or variations, the council must either make the request to the Minister or the Minister must make the direction on his or her own initiative.  

Coastal marine areas

Ministerial intervention on a matter that relates wholly to the coastal marine area (i.e. below mean high water springs) is the responsibility of the Minister of Conservation to determine.  Intervention on a matter that relates partly to a coastal marine area will be jointly decided by the Minister for the Environment and the Minister of Conservation.

How the Minister may intervene

After considering a request to intervene or receiving a recommendation from the EPA, the Minister will consider whether the matter is or is part of a proposal of national significance and may decide to call in the matter and refer it to a board of inquiry or the Environment Court for a decision.  

Alternatively, the Minister may choose not to call in the matter and refer it to the council to decide. The Minister may exercise other forms of intervention:

  • make a submission on the matter for the Crown (an all of government submission)
  • appoint a project co-ordinator for the matter to advise the consent authority on anything relating to the matter
  • direct the consent authorities to hold a joint hearing, if the matter involves more than one authority, and
  • appoint an additional hearings commissioner to a hearings panel, if the local authority decides that commissioners should be used.

The Minister can choose to use none, one or more of these options for the same matter.

A ‘call-in’

The Minister can call in a matter by making a direction that either:

  1. the matter is referred to a board of inquiry to make the decision, or
  2. the matter is referred to the Environment Court to make the decision.

In either case, the local authority no longer has the role of deciding the matter as it ordinarily would.

The procedures used by a board of inquiry and the Environment Court are similar for matters that are called in. For example, submitters have an opportunity to be heard and cross examination may be permitted. The same decision making criteria also apply to the board and the Environment Court and these correspond to the criteria a council would follow if it was dealing with the matter. Both the board and the Court must also have regard to the Minister’s reasons for calling in the matter, and any information provided by the EPA, including submissions.

However, there are also some procedural differences for matters that are called-in and referred to a board of inquiry. These are set out in Part 6AA of the Act.

A board of inquiry is appointed by the Minister and comprises between three and five members.  The chairperson must be a current, former, or retired Environment Judge or a retired High Court Judge. When appointing a board, the Minister must seek suggestions from the relevant council(s) but is not bound by the suggestions. The Minister must also consider the need for board members to have knowledge, skills and experience relating to:

  • the RMA
  • the matter the board will be considering
  • tikanga Māori
  • the local community.

In reaching its decision, a board may request information from the applicant or commission reports. This is in addition to any further information or reports requested by the EPA. The board may also hold pre-hearing meetings and refer the applicant and other persons to mediation.

The board must produce a draft decision report that provides reasons and includes a statement of the principle issues in contention and the findings of fact. Before making its final decision, the Board must consider any comments received on minor or technical aspects of the draft decision report.

Lodging nationally significant proposals at the EPA

Applicants can now lodge resource consents, notices of requirement, or requests for regional plans or plan changes directly with the EPA if they are considered to be of national significance.

When a proposal is lodged the EPA acts like a council in considering whether the application is complete. The EPA may, at any time, request further information from the applicant and/or commission reports if these are deemed to be necessary.

Within 20 working days of receiving a complete application (excluding any time when further information was requested) the EPA must prepare a report for the Minister. This report assesses the national significance of the application, and recommends whether or not it should be called in and referred to a board of inquiry or the Environment Court. These recommendations must also be served on the applicant and relevant council(s).  

The EPA may recover from the applicant all actual and reasonable costs associated with carrying out its functions before and after the application is lodged.     

The process for calling in a matter

While the EPA now provides a key role in receiving applications for nationally significant proposals and making recommendations, it is the Minister who makes the decision (this is in the form of a direction) on whether or not a matter should be called-in.

If the matter has been lodged with the EPA the direction must be made by the Minister as soon as is practicable after the recommendation has been received from the EPA.  If the application has been lodged with the local authority the direction must be made no more than five working days after the close of submissions if the matter has been notified. If the application was non-notified, the Minister must make the direction before the council makes its decision. 

The Minister’s direction must be in writing and must state the reasons for calling in the matter.  The EPA then gives public notice of the Minister’s decision. This public notice must outline where information on the proposal can be viewed and invite submissions within 20 working days after the public notice.

The requirement to notify a called in application applies even if the matter has already been publicly notified (and submissions received) by a local authority.

Any person can make a submission to the Minister on a matter that has been called in, whether or not the person made a submission to the local authority Every submission on a matter to a local authority is deemed to have been made to the Minister.

As soon as practicable, the EPA must provide the board of inquiry or Environment Court with all information that relates to the matter and any submissions received.  The EPA must serve the public notice on the owners and occupiers of land to which the matter relates and the owners and occupiers of adjoining land.

If the application was lodged with the council and not directly with the EPA, the council must provide the EPA with all the information that relates to the matter.

The EPA must also commission a report from the relevant council on the key planning issues. This report will includes the relevant provisions of any plan or policy statement, outline whether all the necessary resource consents have been applied for and the activity status of the proposed activities.

Timeframes for decisions

If the proposal was referred to a board of inquiry, this Board must make its final decision within nine months of the public notification of the Ministers decision to call-in the matter. However, the Minister can extend this timeframe to 18 months if he or she decides that special circumstances exist. The timeframe on decisions from a board of inquiry cannot be extended by more than twice without the applicant’s agreement.
The nine month decision making timeframe does not apply to the Environment Court.  

The decision reached by a board of inquiry or the Court can only be appealed on a question of law to the High Court.

Other intervention options

If the Minister decides not to call-in a matter and refers it to the council(s), the Minister can exercise a number of other powers. The options are to make a Crown submission, appoint a project co-ordinator, direct a joint hearing to be held or appoint an additional hearings commissioner. These options are all intended to support local decision-making.

Making a submission for the Crown

Government agencies (and Ministers) can make submissions on a matter just like any other person.  A Crown submission under section 141A is a single statement on a matter for the Crown.  Its purpose is to set out an integrated and collective view for all relevant Ministers and Government agencies, combining their various experiences, expertise and resources.

Project co-ordinator

The role of a project co-ordinator is to advise the consent authority.  A project co-ordinator is an additional resource to assist the consent authority to process a matter.

In practice a project co-ordinator could help organise hearings, co-ordinate any experts who may need to assess a matter, including sourcing external expertise, and work between the relevant consent agencies.

Joint hearing

A joint hearing is a hearing that involves representatives from two or more consent authorities.  It avoids the need for multiple hearings where several resource consents are required - making the process more efficient and integrated.

Joint hearings can be useful when a project crosses multiple territorial authorities or when a project requires consent from both a territorial authority and a regional council.

Local authorities routinely hold joint hearings of their own accord.  The Minister’s power acts as a back-stop to ensure joint hearings are held when it makes sense to do so.

Hearings commissioner

Local authorities often appoint commissioners to hear and decide on resource consent applications, and make recommendations on designations and plan changes, in place of or alongside elected representatives.  Commissioners act under delegated authority and are often used when there are highly complex or technical issues under debate; when there may be a conflict of interest; or simply when the volume of hearings makes the hearing by councillors unfeasible.  When appointing a hearings commissioner to hear an application, the Minister will look to appoint a person that will make a contribution on issues relating to the national significance of the matter.

Costs of process

The EPA and local authorities can recover the actual and reasonable costs from the applicant where a matter has brought to the Minister for a decision to call-in a matter and refer it to a board of inquiry of the Environment Court. These costs can be recovered whether of not the matter is called-in. The EPA can also recover costs associated with providing advice to persons about lodging a proposal that may be nationally significant whether or not the matter is subsequently lodged.

The Minister can also recover actual and reasonable costs from the applicant incurred by a board of inquiry when carrying out its functions in relation to proposals of national significance.  

The Minister has established a Cost Recovery Policy for Proposals of National Significance that will guide the recovery of costs by the Minister.

Summary

There is improved certainty and efficiency for the decision-making process on proposals of national significance. There are now three ways that a matter may be called in by the Minister including through lodgement of the application with the EPA. The matters that the Minister may make a direction on have also been expanded to include applications to change or cancel consent conditions, notice of requirements for designations or heritage orders, and a council plan change or variation to a proposed plan.

The EPA now plays a key administration role in the processing of nationally significant proposals and making recommendations to the Minister on whether or not to call in a matter. The role of the EPA in combination with the nine month timeframe will help streamline decisions and increase the robustness of decision-making processes for proposals that are of national significance.

The Minister will continue to assess the need to intervene on a case-by-case basis.  When deciding whether to intervene the Minister considers a range of factors and takes account of the circumstances, the views of the local authority involved and the recommendations of the EPA where applicable. In determining how to intervene the Minister considers the circumstances of the case and looks to tailor intervention to meet the particular needs of the case.

Last updated: 1 October 2009