The Environment Court has granted an application by the Thames-Coromandel District Council ("Council") under section 86D of the RMA to have certain rules in a Proposed District Plan take immediate legal effect, in order to resolve confusion around the activity status of earthworks in Flood Areas (Re Thames-Coromandel District Council [2013] NZEnvC 292). 

The Court acknowledged that while it had wide discretion in this kind of application, this should be exercised on a principled basis with regard to the sustainable management purpose of the RMA.  The Court considered that procedurally, it must consider whether or not there ought to be opportunity for input by persons other than the Council.  In terms of the merits of the case, the Court considered that it required a strong basis upon which to depart from Parliament's clear intention that rules need not be complied with until they have been through public submission and decision process (under s 86A RMA).

Judge Harland accepted that the following 5 considerations from case law in this area provided a useful framework for deciding the issue:

  • the nature and effect of the proposed changes by reference to the status quo;
  • the basis upon which it can be said that immediate legal effect is necessary to achieve the sustainable management purpose of the RMA;
  • the spatial extent of the area/s which are to become subject to the proposed changes and/or the approximate number of properties potentially affected;
  • consultation (if any) that has been undertaken in relation to the proposed changes; and
  • whether the application should be limited or publicly notified, including consideration of potential prejudice.

The Court granted the application because it considered that it was desirable to clarify the interpretation of the rules.   Because the change meant a lesser status of resource consent would need to be obtained for earthworks in certain flood affected areas, no party was likely to be prejudiced by the rules having immediate legal effect. This was especially so given the input of the one particularly affected party, the Kopu Landowners and Occupiers Association, into a contentious issue around the definition of "earthworks."

The Court made it clear, however, that the rules having immediate legal effect did not preclude them from being subject to the submission and appeal process under Schedule 1 of the RMA.  This is because a rule having "legal effect" is not the same as a rule becoming "operative", which only happens at the end of the submission and appeal process.