How is an application for a declaration processed?

The Environment Court will set down a time to hear your case for the declaration and the case of any other parties. After the hearing, the Environment Court will make a decision as to whether to make the declaration sought or to make any other declaration it considers necessary or desirable. 1073

The Environment Court can refuse to make a declaration where:

  • The question is an abstract or hypothetical question 1074
  • The declaration would be ineffective e.g. because any error had been remedied 1075
  • There had been a purely technical breach unnoticeable to any other person
  • There was delay in bringing the action
  • The breach has been shown to have a beneficial effect 1076

Generally, the essential facts should not be in dispute when a declaration is sought. 1077  However, the Environment Court can make findings as to disputed facts in declaration proceedings. 1078  The applicant must prove the disputed facts to the standard of the balance of probabilities (more likely than not). 1079

Declarations are particularly important for Crown breaches of the Resource Management Act since many other enforcement mechanisms do not apply to the Crown. In Donkin v Board of Trustees of the Sunnybrae Normal School [1997] NZRMA 342 the Court made a declaration that some of the school buildings contravened section 17 of the Resource Management Act, notwithstanding that it had struck out an application for an enforcement order on the basis that a school board of trustees is an agent of the Crown.

The Court has jurisdiction to make a declaration that a particular proposal contravenes a district plan, notwithstanding the fact that the council may have issued a certificate of compliance for the proposal. 1080

In relation to declarations relating to the interpretation of the Resource Management Act, the plain ordinary meaning should be used to interpret the words of the plan, together with a purposive interpretation. Only in such cases of doubt should other relevant parts of the plan, such as objectives and policies be referred to. 1446  The Court may have regard to extraneous material such as the Commentary to the Resource Management Amendment Bill as lodged with Parliament by its Planning and Development Committee. 1081  The Court of Appeal has held that it is "appropriate when construing the Act and endeavouring to harmonise any provisions which do not have an immediately obvious consistency, to be guided, where appropriate, by matters which Parliament has said are matters of national importance for resource management purposes". 1082

  1. Section 313 Resource Management Act 1991

  2. Re an application by Canterbury Frozen Meat Co Ltd (1993) 2 NZRMA 282

  3. Hunt v Auckland City Council (No 3) (Planning Tribunal A68/94, 24 August 1994)

  4. Firth v Waitakere City (Planning Tribunal, A72/93, 19 July 1993)

  5. Re an Application by Trolove (Planning Tribunal C052/94, 8 June 1994)

  6. Palmerston North City Council v New Zealand Windfarms Ltd [2012] NZEnvC 133

  7. Van Brandenburg v Queenstown Lakes District Council (NZEnvC C085/07, 28 June 2007)

  8. Culpan v Vose (1993) 2 NZRMA 380

  9. Canterbury Regional Council v Christchurch City Council (2002) 7 ELRNZ 97

  10. Waiareka Valley Preservation Society Incorporated v Waitaki District Council (NZEnvC C113/07)

  11. Re an Application by Millbrook Country Club Limited (NZEnvC C45/97)

Last updated at 11:03AM on December 18, 2014