What is a waiver?

Any person may apply to the Environment Court for a waiver of a requirement set out in the RMA or regulations, including time limits and service of documents. 1161

How do you apply for a waiver?

To apply for a waiver you must complete an application for waiver in accordance with Form 38 of the Resource Management (Forms, Fees, and Procedure) Regulations 2003. The application should be accompanied by a memorandum setting out the grounds for the waiver and an affidavit setting out factual statements to support those grounds.

Example - Application for Waiver
Example - Memorandum
Example - Affidavit

You must lodge the original and one copy of the application for waiver with the Environment Court. Documents can be lodged by hand, courier, post, or email. If you lodge your application for waiver by email you should post the signed original and one full copy.

You also need to serve a copy of the application for waiver on all other parties to the proceedings within 3 working days of lodging the application with the Environment Court. Within 10 working days of lodging the application you must give written notice to the Registrar of the Environment Court of the name, address and date of service for each person served with this application.

There is no fee for lodging an application for waiver.

How is a waiver application assessed?

The Environment Court must consider two matters when assessing an application for waiver: 1162

  • Will any of the parties to the proceeding be unduly prejudiced?
  • Should the court exercise its discretion to grant the waiver?

If all parties consent to the granting of an application for waiver the Environment Court need not consider the first matter. 1163

In regard to determining whether there will be undue prejudice the Environment Court has stated: Any party who believes that the notice period has passed, but then has to face a late arriving opponent, will be prejudiced in the sense of having lost a position of advantage, and of having to face whatever opposition might be mounted. The section accepts that as a given. The issue is whether the prejudice is undue. That means prejudice greater than that which would inevitably follow in every case from waiving compliance with the time limits. 1164  A necessary consequence of waiving a time limit is that the Court will need to consider additional issues. Even if an appeal introduces new elements of complexity into proceedings that would not constitute undue prejudice. 1165  Another necessary consequence of waiving a time limit for lodging an appeal is delay. 1166

Undue prejudice is likely to arise where granting a waiver would re-open a matter that had been settled at mediation 1167  or where it would defer or defeat a resource consent which had been relied upon. 1168   Undue prejudice may also result where steps towards the resolution of substantive proceedings have proceeded some distance. 1169  The Court has granted a waiver in relation to a section 274 application which was lodged 72 working days late as the parties who had participated in the appeal process to date were not close to resolution. 1170   The Court has granted a waiver in relation to a section 274 application which was lodged approximately six months late as cultural effects were already at issue in the proceedings, the applicant would provide its evidence in accordance with the evidence exchange timetable and the applicant would have the opportunity to file rebuttal evidence. 1171

There are five factors relevant to evaluating whether the court should exercise its discretion to grant a waiver: 1172

  • The length of the delay,
  • The reasons for the delay,
  • The scheme of the Act relating to public participation,
  • What has happened in the proceeding in the meantime,
  • What effect introducing new parties might have on progressing the appeal to resolution.

Whether or not the applicant for waiver is experienced in Environment Court procedures is relevant to whether the court should exercise its discretion to grant a waiver. 1173

  1. Section 281(1) Resource Management Act 1991

  2. Shirtcliff v Banks Peninsula District Council (EC Christchurch, C17/99, 19 February 1999)

  3. Kaitiaki Tarawere Inc v Rotorua District Council [1997] NZRMA 372 (HC)

  4. Omaha Park Limited v Rodney District Council (EC Auckland, A046/08, 23 April 2008)

  5. Wharfe v Porirua City Council (NZEnvC Wo29/08, 16 May 2008)

  6. Reilly v Northland Regional Council (1993) 2 NZRMA 414

  7. Hurunui District Council v Canterbury Regional Council (EC Christchurch, C090/08, 11 August 2008)

  8. In Svenson v Thames-Coromandel District Council (NZEnvC A085/98, 20 July 1998) it was relevant that the party had taken important initial steps in reliance upon its consent, including financial expenditure that would place it in a position of undue prejudice were a waiver granted.

  9. In Neil Construction Ltd v Rodney District Council (NZEnvC A129/05, 5 August 2005) an application for waiver was denied as two rounds of mediation has occurred even though a mediation agreement had not been reached.


  10. Frasers Papamoa Ltd v Tauranga City Council )NZEnvC W097/06, 9 November 2006)

  11. Re Waiheke Marinas Ltd [2014] NZEnvC 163

  12. Omaha Park Limited v Rodney District Council (EC Auckland, A046/08, 23 April 2008)

  13. In Wakatipu Environmental Society Inc v Queenstown Lakes District Council (NZEnvC C033/02, 14 March 2002) the Court stated that as Wakatipu Environmental Society Inc was experienced in lodging appeals a delay of over five months was too long without extenuating circumstances.

Last updated at 2:18PM on December 11, 2014