The dos and don'ts – Council’s role in a resource consent appeal
The dos and don'ts – Council’s role in a resource consent appeal
When a council decision on a resource consent application is appealed to the Environment Court, a question arises as to the role of the council, as the first instance decision maker, in the Court proceedings. Due to the regulatory and quasi-judicial functions of councils under the Resource Management Act (RMA), questions often arise as to the exact role councils play in these proceedings – does it actively defend its decision, or does it remain neutral? Further questions arise when the decision on appeal has been made on behalf of a council by a commissioner or panel with delegated decision-making authority – is the council bound by the first instance decision, or can it form a different view on appeal?
The recent proceedings of Second Star Limited v Queenstown Lakes District Council explored the Queenstown Lakes District Council’s (QLDC) obligations on a resource consent appeal, including the circumstances in which a council may alter its position.
Background
The resource consent application on appeal related to a proposal to construct a luxury visitor accommodation lodge. At first instance, a Panel of Commissioners (Panel) acting on delegated authority from QLDC declined to grant consents on the grounds that the proposal was held to be of an inappropriate scale and built form for the area. The resource consent applicant then appealed the decision to the Environment Court.
Despite the Panel accepting officer and expert witness assessments and recommendations under s42A of the RMA which concluded that consent should not be granted, on appeal QLDC elected not to support the Panel’s decision and instead took the view that the proposal, as amended, could be consented.
Council’s position on appeal
In considering QLDC’s position, the Court noted that when a council delegates decision-making power with respect to a resource consent application to a commissioner or panel of commissioners – the resulting decision is considered a decision of the council. Should the decision be subsequently appealed, the council assumes the role of the respondent and its primary obligation is to defend its decision. The Court was careful to distinguish a council’s position on appeal from that of a private litigant in a civil proceeding, noting a council is guided by its functions under the RMA, primarily its statutory responsibility under s84 to enforce the observance of its district plan.
The Court went on to clarify that, should a council take a different position on appeal, it must have sufficient justification to do so. If a council wishes to call evidence in support of an opposing position, the council must act with fairness and full transparency to all parties involved with the proceedings, including s274 parties, as to the justification for its changed position.
After considering the merits of the appeal, the Court accepted the landscape evidence called by the s274 parties over that evidence called by QLDC and the developer, concluding that the proposal was contrary to, and inconsistent with, the relevant provisions of the district plan. The appeal was therefore dismissed.
Following the dismissal, costs were awarded in favour of the successful s274 party with the Court noting that it was the lack of justification for QLDC’s change of position on appeal which resulted in the decision to award costs against it.
Consideration for councils
The proceedings of Second Star Limited highlight the duties imposed on a council when its decision is the subject of appeal and the importance of adhering to these. When councils are named as respondents in appeal proceedings, a council’s primary obligation is the consistent and proper application and enforcement of its district plan. Sufficient justification is required for a council to deviate from its position at first instance. If that position changes on appeal, then the council is under a duty to act fairly and transparently towards all parties to the proceedings with respect to the justification for doing so. As seen through the proceedings of Second Star Limited, should a council fail to uphold its duties on appeal, it runs the risk of costs being awarded against it.
For more information on a council’s obligations on appeal and whether there is sufficient justification to depart from a first instance decision, please contact one of our team members below.
