The role of local authorities in judicial reviews of its consenting functions under the RMA
Traditionally, decision-makers under the RMA haven’t followed the conventional approach and have instead played an active role in defending decisions that are subject to judicial review. However, the appropriateness of this approach has recently been the subject of judicial commentary and it is becoming increasingly clear that local authorities should only be seeking to actively defend their decisions in certain circumstances – not as a general rule.
In the recent decision of Mahora Residents Society Inc v Hastings District Council [2024] NZHC 1651, the High Court specifically considered the Council’s application for leave to participate in an application for judicial review of its decision to process and grant a resource consent on a non-notified basis.
In considering the role of a consent authority, the Court distinguished administrative decisions from those made in an adversarial setting. In the case of challenges to administrative decisions (such a notification decisions), the Court found that the essential question is “will hearing from the decision-maker assist the Court because that party has an interest in, knowledge of, or perspective on, the issues to be resolved beyond that of the contradictor?”
In Mahora, the Court was ultimately satisfied that the issues for review were of broad public interest and could have implications for other applications and consenting authorities. As such, the Council was granted the necessary leave to participate in the proceeding.
Implications for local authorities
What does this mean moving forward?
The key takeaway from Mahora is this: local authorities will not always be able to actively defend decisions involving their consenting functions under the RMA. Leave of the Court will be required, and the local authority must satisfy the Court that it will be of assistance. Relevant factors include whether:
- The decision being challenged an administrative one.
- There is already a contradictor that will defend the decision.
- The application raises issues of wider public interest that have the potential to impact other applications and / or consent authorities.
Understanding the nuances of when to actively defend decisions can help councils better navigate judicial reviews and focus resources on cases where their involvement will be most beneficial.
For further guidance on this topic and help understanding when a Council’s participation will be beneficial, contact our Regulatory team Director, Laura Bielby, on 021 081 25063 or laura.bielby@ricespeir.co.nz.
