The council decision on a request for direct referral
Until Regulations are passed prescribing an investment threshold amount, the council has discretion in deciding whether to grant or refuse a request for direct referral. Submitters do not have a right to be heard by the council about a request for direct referral.
If the council receives the request for direct referral before it has determined whether to notify the application, the council must defer its decision until the decision on notification is made. If the council decides not to notify the application, it must return the request.
If a request for direct referral is made before the council has determined whether or not the application will be notified, and the council subsequently decides to notify the application, the decision on direct referral must be made by the council within 15 working days after the notification decision. Otherwise, the decision on direct referral must be made within 15 working days after the council receives the request.
Whether and how to delegate the decision on direct referral is at the discretion of each council.
The RMA does not specify the information required to be included in the council decision on direct referral, other than a requirement to give reasons if a request for direct referral is refused. The decision will be shaped by the particular application considerations and whether it was accepted or declined.
If the council declines a request for direct referral, it must provide the applicant with reasons for declining the request, either electronically or in writing, and the reasons must be issued at the same time as the decision. An applicant can object to a council’s refusal of a request for direct referral. It is good practice for the council to send a copy of its decision to the Environment Court.
If the council grants the request for direct referral, the applicant must be advised of the decision and the council must prepare a report to the Environment Court. The applicant then has the discretion whether to proceed with direct referral or not. The Environment Court does not have the ability to refuse to hear an application for direct referral. The council should send a copy of their decision to the Environment Court as soon as possible after the request has been granted. This will help the Environment Court plan and prepare for the receipt of a direct referral application should the applicant continue with direct referral.
Although not a requirement of the RMA, if the decision on direct referral is made after the close of submissions, the council should also notify the submitters of the decision on direct referral and advise them of the implications for their involvement in the process. The Ministry for the Environment’s information sheet for submitters may also be helpful to include with any correspondence to submitters.
Note that the council’s discretion will be removed for certain applications if regulations are promulgated under section 360(1)(hm). Before promulgating regulations, the Minister must have regard to the intent of such regulations, which is to require requests for direct referral to be granted for proposals of a significant economic scale. This regulation making power was included as part of the RMAA13, but no regulations have yet been made under this provision.
Such regulations can prescribe an investment threshold. Any applications over that threshold must be referred to the Environment Court unless the relevant council considers that ‘exceptional circumstances’ apply.
The regulations may also specify what matters a council must have regard to when determining whether there are exceptional circumstances. The Act (s.87E(6A)(b)) creates an obligation for direct referral if an investment threshold (specified by regulation) is likely to be met or exceeded. However, that obligation does not exist if the relevant council considers there are “exceptional circumstances”.
Objections to the council decision on a request for direct referral
If the council declines a request for direct referral for a resource consent application or requirement, the applicant can object under ss357A(1)(e) or 357(8) of the RMA respectively. The decision on the objection is solely at the discretion of council.
Councils should establish clear policy and/or delegations about who considers the objection. If the objection is successful and the original decision to decline the direct referral request is overturned, then the application proceeds as if direct referral was granted: ie, the council prepares a report for the Court.