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Environment Court Decisions January to June 2004

1 Introduction

2 Analysis of Decisions

3 Analysis of Substantive Decisions - Appeals on Resource Consents, Designations and Plans/Policy Statements

4 Conclusions

2 Analysis of Decisions

2.1 Classification of decisions

2.1.1 Categorisation by issue

Environment Court decisions over the study period covered six main issues. Five of these issues related to the jurisdiction of the Court under the RMA. These issues are the various subject areas under the RMA where appeals or references may be lodged before the Environment Court. [Before enactment of the 2003 Resource Management Amendment Act, actions brought in respect of policy statements and plans were termed 'references'. In this analysis the term 'appeal' is used for all actions.] They are:

• resource consent applications
• designations (including new requirements and land taking)
• plans and policy statements
• declarations
• enforcement and abatement notices.

The sixth issue related to the jurisdiction of the Court in respect to hearing appeals on authorities to modify archaeological sites under the Historic Places Act 1993. While the Environment Court has jurisdiction under a number of other statutes, as discussed in Section 1, in the study period the Historic Places Act was the only statute other than the RMA under which a decision was issued.

2.1.2 Categorisation by nature

Within each of these issue areas, decisions may be of the nature of substantive decisions, consent orders, costs decisions and 'other'; which include procedural matters.

• A substantive decision is categorised as a decision that, generally, is decided following a hearing, and facts are contested.
• Consent orders, as discussed in the introduction, only sometimes result in a numbered decision being issued.
• Costs decisions usually follow substantive decisions.
• 'Other' decisions include a wide range of issues, including procedural matters, waivers, directions, part-approval of plans, and the adoption of final conditions where substantive issues were dealt with through an interim decision.

Often a particular case will give rise to a number of decisions of different natures - for example an appeal against refusal of a resource consent may include a waiver application ('other'), a substantive interim decision which gives consent, a final decision which specifies conditions ('other') and a costs decision.

2.1.3 Composition of the court

The Environment Court can comprise a panel of a judge and one or more commissioners, and for certain issues can comprise a judge sitting alone. [In particular circumstances, a court may comprise one or more environment commissioners sitting without a judge. However, those circumstances did not arise in the study period.] In Table 1, decisions by issue and nature are also analysed by the composition of the court.

2.2 Analysis

Table 1 analyses the 219 decisions by category (issue and nature) and by composition of the court.

Table 1: Analysis of Environment Court decisions, January to July 2004, by category of decision and composition of court

2.2.1 Analysis by issue

Decisions relating to resource consent applications account for the largest proportion (46% - rounded) of decisions, followed by enforcement (26%). Plans and policy statements account for 20% of the decisions - this is likely to represent a reduction compared with previous periods as first generation plans have become operative. Only one decision was issued under a statute other than the RMA - it was issued in respect of an authority to modify an archaeological site under the Historic Places Act 1993. Refer to Figure 1 for a graphical analysis by issue.

Figure 1: Environment Court decisions by issue

2.2.2 Analysis by nature

A total of 30% of all decisions are classified as being 'substantive' in nature (as described in Section 2.1.2 above), usually a contested case, mostly in front of a panel of a judge and one or more commissioners. Costs determinations account for a further 26%. The 'other' category is the largest, and includes the range of actions as described in Section 2.1.2 above. Refer to Figure 2.

Figure 2: Environment Court decisions by nature

2.2.3 Composition of the court

In the study period, 133 decisions (61%) were determined by judges sitting alone and the remaining 86 (39%) by panels of a judge and one or more commissioners. Figures 3 and 4 analyse decisions issued by, respectively, panels and judges alone, by the nature of the decision.

Figure 3: Nature of decisions issued by panel

Figure 3 shows that 56 of the panel decisions (65%) were substantive decisions; being those that often require a hearing and where facts are in contention. Of the 56 substantive decisions, 55% dealt with resource consents and 23% dealt with plans and policy statements.

Proceedings before panels require substantial court resources. In comparison, proceedings where the judge sits alone can be dealt with much more expeditiously. Section 279 of the RMA specifies those matters that may be dealt with by a judge sitting alone.

Figure 4 shows that 54% of 'judge-alone' decisions in the study period dealt with 'other' matters (the varied nature of which are described in Section 2.1.1 above), and 35% with costs, which generally follow on from a consideration of substantive issues by a panel.

Figure 4: Nature of decisions issued by judge alone