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 for the Environment to intervene
in decision-making processes for proposals of
national significance.
The RMA was amended in 2005
to increase the choice of intervention options
available to the Minister. It is expected that
ministerial intervention will continue to be used
sparingly. This page explains what the intervention
powers entail, and when and how a Minister may
use them.
What the minister may intervene
in
In certain circumstances the Minister can intervene
in the decision-making process for:
a resource consent application
a notice of requirement for a designation or a
heritage protection order
a request that a regional plan be prepared or
a change be made to a plan
Coastal marine areas
Ministerial intervention on a matter that relates
wholly to the coastal marine area (i.e. below
mean high water springs) is for 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.
When the minister may intervene
The Minister can be formally requested to intervene
in a decision-making process by either the applicant
for the proposal or by the local authority that
would ordinarily make the decision.
Alternatively, the Minister
may choose to intervene on his or her own volition.
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).
The local authority
The Minister must also consider whether the local
authority that would ordinarily be responsible
for processing and determining the matter:
has the capacity to do so, and
considers it appropriate for the Minister to intervene.
Assessing local authority capacity
The capacity of a local authority may include
the local authority’s financial, logistical and
human resources, experience and policy framework,
having regard to other commitments a local authority
has.
The local authority’s views
The local authority may have views about whether
it considers ministerial intervention appropriate,
having had regard to the potential environmental
effects of the matter and its capacity to process
and determine it.
How the Minister may intervene
After considering a request to intervene, the
Minister can choose from the six options set out
in the RMA. These are:
not to intervene
to call in the matter
to make a submission on the matter for the Crown
(an all of government submission)
to appoint a project co-ordinator for the matter
to advise the consent authority on anything relating
to the matter
to direct the consent authorities to hold a joint
hearing, if the matter involves more than one
authority, and
to 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 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:
the matter is referred to a
board of inquiry [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.] to make
the decision, or
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 (which may
be only part of a proposal) as it ordinarily would.
The procedures used by a board
of inquiry and the Environment Court are similar;
a hearing is held, submitters have an opportunity
to be heard and cross examination may be permitted.
The principal differences between
the two options are:
the process that the board of
inquiry must follow to reach its decision. This
includes preparation of a draft report which is
made available to the applicant, local authority,
any submitters and the Minister for comments before
a final report is issued, and
the ability for a board of inquiry’s report to
include recommendations relating to plans, regional
policy statements and national policy statements.
The decision reached by a board of inquiry or
the Court can only be appealed on a point of law
to the High Court.
The process for calling in a
matter
The Minister must give a direction to call in
a matter, along with reasons, in writing and serve
it on the relevant local authorities.
This should be done as soon
as possible. If the local authority has already
determined that no hearing is to be required then
the Minister may serve notice of a direction any
time before a local authority issues a decision
or recommendation.
If the local authority has already
determined that a hearing is to be held, notice
of any direction for call in must be served at
least five days before the proposed hearing date.
Once a local authority has received
notice of a direction, it must transfer all relevant
paperwork to the Minister and serve a notice of
the direction on the applicant. It must also advise
the owners and occupiers of land to which the
matter relates and adjoining land, and every person
who made a submission on the matter to which the
direction relates.
The Minister will then be able
to publicly notify the direction, including his/her
reasons, and invite submissions with a closing
date 20 working days after the date of public
notification.
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.].
Other intervention options
The options of a Crown submission, a project co-ordinator,
joint hearings or an additional hearings commissioner
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
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
Ministers and the local authorities concerned
can seek to recover costs associated with the
Minister’s intervention in a matter from the applicant.
Other costs are expected to ‘lie where they fall’.
Summary
The Minister has a range of options to intervene
in RMA decision-making. The Minister assesses
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 and views of the local authority
involved. 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.
