The following provisions apply to persons served with an abatement notice by Christchurch City Council under section 322 of the Resource Management Act 1991.
Please note that this information is provided as a guide only. Matters which go before the Environment Court can be complex and we advise that you consider consulting a solicitor before lodging your appeal.
Cancellation of an abatement notice
Under section 325A of the Resource Management Act 1991.
Any person who is directly affected by an abatement notice may apply in writing to the Council for the Council to change or cancel the abatement notice.
If you apply to have an abatement notice changed or cancelled, the Council must, as soon as practicable, consider your application having regard to the purpose for which the abatement notice was given, the effect of a change or cancellation on that purpose, and any other matter the Council thinks fit. The Council may confirm, change or cancel the abatement notice.
The Council must give written notice of its decision to you.
Where the Council, after considering your application, confirms the abatement notice or changes it in a way other than sought by you, you may appeal to the Environment Court under section 325 of the Resource Management Act against the whole or any other part of the abatement notice.
Appeals
Under section 325 of the Resource Management Act 1991.
Any person who is served with an abatement notice by the Council may appeal to the Environment Court against the whole or any part of the notice. This provision applies whether or not a person has first applied to have Council change or cancel the notice under section 325A.
If you decide to appeal an abatement notice, you must give notice of the appeal in the prescribed Form 49, and you must also:
State the reasons for the appeal and the relief you seek.
State any matters required by regulations.
Lodge the appeal with the Environment Court and serve it on the Council within 15 working days of the abatement notice being served on you (note that you will need to pay a $56.20 filing fee at the time of lodging the appeal with the Environment Court).
An appeal against an abatement notice does not operate as a stay of the notice (i.e. you are not excused from complying with the notice pending the outcome of the appeal) unless:
You are complying with the Resource Management Act, any regulation, a rule in a plan or a resource consent; and in the abatement notice is within the scope of section 322(1)(a)(ii) of the Act.
A stay is granted by an Environment Judge as discussed below.
On an appeal against an abatement notice, section 325 provides that the Environment Court must not confirm an abatement notice that is the subject of an appeal if the person served with the abatement notice was acting in accordance with a rule in the plan, a resource consent or a designation, and the adverse effects in respect of which the notice was served were expressly recognised by the person who approved the plan, or notified the proposed plan, or granted the resource consent or approved the designation at the relevant time.
However, the Environment Court has the discretion to confirm an abatement notice even in the above circumstances, if the Court considers it appropriate after having regard to the time that has lapsed and any change in the circumstances since the approval, notification, or granting, as the case may be.
Application for a stay of an abatement notice
Pending the outcome of an appeal
Under section 325 of the Resource Management Act 1991, any person who appeals against an abatement notice may also apply to the Environment Judge for a stay of the abatement notice pending the Environment Court's decision on the appeal. If you apply for a stay, the application must be in the prescribed form and must:
State the reasons why you consider it is unreasonable for you to comply with the abatement notice.
State the likely effect on the environment if the stay is granted.
Be lodged with the Environment Court and served immediately on the Council.
If you apply for a stay, an Environment Judge must consider your application as soon as practicable after it has been lodged.
Before granting a stay, an Environment Judge must consider:
- What the likely effect of granting a stay would be on the environment.
- Whether it is unreasonable for you to comply with the abatement notice pending the decision on appeal.
- Whether the Environment Judge will hear either of you or the Council (i.e. whether you or the Council will need to present submissions and / or evidence to the Court).
- Such other matters as the Environment Judge thinks fit.
An Environment Judge may grant or refuse a stay and additionally may impose any terms or conditions the Judge thinks fit.
If the Judge grants your application for a stay, you must serve a copy of it on Council as the stay has no effect until it is served.
The stay remains in force until an order is made otherwise by the Environment Court.
View the Prescribed Form, Notice of Appeal under section 325 (Form 49).
