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RMA for dummies

By Andrew Thomas, Solicitor

First published in Rural News, 22 April 2008

Every day we hear of sprawling new infrastructure projects, predominantly often power or irrigation projects funded by large companies or state owned enterprises.  Just take a look at what’s on the agenda at present: Meridian’s North Bank Tunnel Concept; the Hunter Downs Irrigation Scheme in South Canterbury; the Central Plains Water scheme; Transpower’s transmission upgrade in the Waikato; and the Te Waka wind farm near Hastings.

All of these projects, which occur in the rural environment, clearly have both positive and negative effects on local farmers. For example, those landowners who are inside the irrigation area for the Hunter Downs and Central Plains water schemes will receive benefits through increased land value and the opportunity to lift productivity. But farmers neighbouring large wind farm applications may feel they detract from the benefits of living in a rural area.

What can you do about any given project?

The Resource Management Act process is not for the faint-hearted and staying informed is crucial. For instance, landowners may not be allowed to participate in a hearing on a project that will affect them if they did not file an original submission. Equally vital is formally submitting on an application within the deadline. It is much harder, and sometimes impossible, to become involved later if you did not submit on the original application.

The process usually begins with potentially affected landowners being contacted via mail. This will be part of the applicant’s initial consultation. While the applicant does not have to consult you, in practice they nearly always do. If you wish to oppose the project in part, whole or on conditions, you must NOT sign the written approval form. You will be sent this form around the time the application is filed. The Consent Authority, depending on the project, will be a District Council, a Regional Council (Environment Canterbury) or both. 

Large projects are almost inevitably publicly notified. It is this notification (usually in the local newspaper) that provides everyone with an opportunity to submit on the proposal. Public notification will call for submissions on the application. If you decide that you either oppose or support the project, you must make a submission at this stage. It must state whether you oppose or support and whether you wish to be heard. It is now common for affected landowners to group together to share costs, sometimes forming an incorporated society.  While there is no need to create an incorporated society, it can avoid cost issues later if the project goes before the Environment Court.  Local farmers with no joint legal identity can make submissions as a group.  For example, at the recent Hunter Downs Irrigation Scheme hearing in Timaru several local farmers and two irrigation companies made a joint submission.

At this initial stage the submission only needs to be brief and state generally the areas of support or opposition. It is common for groups to prepare this initial submission personally before, perhaps, hiring a lawyer to prepare the submission for the actual hearing. This can save money, but be aware your submission is the legal document giving you the right to be involved. If you leave out issues, and later want to raise them, you will generally be unable to.

After submissions have closed, the Consent Authority must hold a hearing if someone has said they want to be heard. These hearings are not court! There are no rules of evidence and they are meant to be informal to allow as much participation as possible by the public. You or a representative of your group will be required to attend the first day and state that you wish to be heard. As these hearings often go on for several weeks, you will be given a date that you are to present your case. Often the applicant provides a list of witnesses and the order in which they are appearing; this can be helpful so that you only turn up to hear people on the days that you think might be relevant to your submission.

If you are part of a collective group, it is preferable to seek the expertise of a resource management lawyer/ planner to represent your group as soon as possible. A lawyer or resource management consultant would represent you at the hearing and guide you on the evidence in support of your submission. You cannot be cross-examined as this is a Council hearing, not Court. Only the Council Hearings Panel or independent commissioners will be able to ask you questions.

Once the Panel makes its decision any appeal to the Environment Court must be prepared and filed within 15 working days. It is strongly recommended you instruct a lawyer at this point, if you have not already. From here on, the Court can award costs against individuals.

Conclusion: Simply stay informed and, if possible, be part of a collective group with similar interests. This will help share the costs and ensure your interests are represented as best as possible.