Poorly drafted submissions limit appeals against Council decisions

When it comes to appealing a Council decision on a plan, it is a frequent problem that the ability to appeal the decision to the full extent desired is found to be limited by the scope of the original submission. Unfortunately for many intending appellants the narrow scope of the original submission is discovered years later when appeal rights and options are being considered. Appeal rights exist to the Environment Court on a plan decision only if the specific objective, policy rule, or other method was referred to in the submission on the plan. It follows that the relief sought in a submission will limit the scope of any later appeal against the Council decision. This restriction on rights of appeal on plans has legal consequences, as an appeal to the Environment Court on a matter outside the relief sought by a submission can be struck out.

Ensure plan submissions cover all bases.

Even if the relief to be pursued on appeal is within the scope of the original submission, some grounds of appeal can only be pursued if they are referred to in the original submission itself. For example:

• The adequacy of any regulatory impact analysis (evaluating the costs and benefits of the proposal and its regulatory efficiency as contained in section 32 RMA) can be challenged only if the section 32 evaluation was expressly raised in a submission.
• Where a proposed plan renders any land incapable of reasonable use, or places an unfair and unreasonable burden on any person having an interest in the land, the provision in the proposed plan must be challenged by a submission. Rights are then preserved to apply to the Environment Court under section 85 RMA to delete the restrictive provision.

Even if the client is supportive of the council’s proposals, there is merit in lodging a submission in support of the council’s plan. That way the submitter can be heard in opposition to any contrary submissions and appeal rights are preserved.

What if a future plan change is likely to be more restrictive for activities currently permitted?

If concerned with an activity that is currently permitted in a district or regional plan, and that activity is likely to be restricted in a proposed plan, it is worthwhile obtaining a certificate of compliance under section 139 RMA. This has the effect of being a deemed resource consent, and continues to authorise the activity after the proposed plan as notified. Certificates of compliance can also be obtained for existing use rights.