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Naturally Resourceful
26 Jan 2010
Priority for competing applications
The date on which a resource consent application obtains priority of hearing over other competing applications has been the topic of much debate and a series of Court decisions.
The latest Court of Appeal decision on Central Plains confirms that priority for a "full hearing" is determined by the date of lodgement of a complete consent application, rather than the earlier test based on the date the application was ready for notification.
In this FYI Philip Milne and Matt Conway summarise the key points of the latest decision and discusses the practical implications for consent authorities. For more background see our May 2008 FYI about Central Plains Water Trust v Ngai Tahu Properties Limited & Anor[1].
Central Plains v Synlait
In Central Plains Water Trust & Anor v Synlait Limited & Anor[2] the Court of Appeal provided further clarification of the ins and outs of priority. In reasons delivered by Baragwanath J, the Court unanimously held that:
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The first complete application received is entitled to be heard first.
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Priority is not lost by a section 92 request for information or a section 91 deferral for additional consents unless the applicant breaches section 21 by unreasonably delaying the provision of such.
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In its submission opposing the first application, a later applicant may (1)challenge the merits of the first application, and (2) present "competing concepts", but may not put up its own competing application and contend that its own application is preferable on the merits.
First in, first served: an application is "in" when it is filed in a complete form
The Court confirmed that priority is gained when a complete application is lodged, rather than when it is ready for notification. It commented that it is more practical to base priority on the date of receipt of an application than on a judgement call by a consents officer about whether further information or further consent applications are required.
The Court held that priority "may" be lost if an applicant unreasonably delays the provision of further information or otherwise unreasonably delays the hearing of its application.
It is also of note that just before this decision came out the High Court in New Zealand Maori Council (Re an Application)[3] struck out an application for a declaratory judgment that sought to argue that priority should be determined at the consent authority's discretion. The Court commented that the proposition was not capable of serious argument and that there were difficulties in satisfactorily articulating the boundaries of the proposed new council discretion in the form of a declaration.
Priority of hearing v priority of merits
Filing a complete application first only gives a presumption of priority of hearing. Being "first in" does not provide any presumption that the application is more likely to be granted than any other application. In practice however, priority of hearing is a significant advantage, because if the first proposal is sustainable it must be granted even if the later proposal might be more sustainable or more efficient.
A later applicant may submit against the first application, subject to the same constraints as other submitters. The later applicant may present "competing concepts" in the hope that the consent authority might decline or adjourn the first application. For example, competing submitters might provide information about their own proposal to put doubt in the consent authority's mind about whether the first application is a responsible use of the resource. However, earlier case law establishes that the consent authority can not embark on comparing competing proposals.
Implications and issues
An approach based on the first complete application has the advantage that consent authorities can prioritise the hearing of applications without concerning themselves with the question of when each application was "ready for notification". It also means that applicants will not risk losing their place in the priority queue based on the vagaries of a consent authority's requirements for further information, or further applications.
Section 88(3) still requires an element of judgement and consent authorities will need to take care when accepting or rejecting an application. To some extent the Court of Appeal's decision may have traded in the uncertainty about section 91 and 92 requests for uncertainty about what amounts to unreasonable delay. The use of section 21 begs the question "how long can a delay be before it is unreasonable?"
If there is competition for the resource in question, a consent authority's view that priority has been lost as a result of unreasonable delay will almost certainly be challenged. Setting and communicating expectations is essential and legal advice should be sought before letting a later applicant jump up the queue.
It seems implicit in the Court's decision that later applications should not be heard until the first applicant is heard. The difficulty with that approach is that complex applications may delay other more simple and/or "efficient" or urgent applications, which may or may not have as much or more merit. The Court did not comment on the approach that the Regional Council adopted of hearing and determining the later (simpler) Ngai Tahu application first, but granting it on conditions which protected the priority of the first applicant (Central Plains) in the event that it ultimately obtains consent. It is debatable whether the latest Court of Appeal decision precludes such an approach.
The Synlait application for a declaration has been referred back to the Environment Court. It remains to be seen whether the question of "unreasonable delay" will be pursued by Synlait and, if so, how the Courts will approach it.
[1] Court of Appeal, 19/3/2008, Hammond, Robertson and Baragwanath JJ, CA 69/07 [2008] NZCA 71.
[2] Court of Appeal, 18/12/2009, Hammond, Ellen France, and Baragwanath JJ, CA544/2008 & CA588/2008 [2009] NZCA 609.
[3] High Court Wellington, 21/8/2009, Simon France J, CIV-2009-485-1048.
Authors
Duncan Laing
Partner - Public Sector
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Padraig McNamara
Partner - Public Sector
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James Winchester
Partner - Public Sector
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Matt Conway
Senior Associate - Public Sector
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In This Article:
This FYI article summarises the key points of the recent decision and discusses the practical implications for consent authorities. For more background see our May 2008 FYI about Central Plains Water Trust v Ngai Tahu Properties Limited & Anor.
