Things to consider if you are contemplating bringing proceedings in the Environment Court
You may choose to appeal to the Environment Court if you are dissatisfied with a decision made by a council on a resource consent application, proposed plan or other decision such as a designation or heritage order. Before bringing proceedings in the Environment Court, there are a number of things you should consider.
Time
There have been significant reductions in the time it takes to resolve an appeal in the Environment Court, but proceedings can still take some time to be heard and decided. You should allow at least six months for an appeal of a resource consent decision, and longer for an appeal against a provision in a plan.
While it is possible - or even likely - that your case will be able to be resolved between the parties (through negotiation and mediation, or by withdrawal) and not need a full hearing, by lodging an appeal or application you are asking the Court to resolve the dispute. It is the Environment Court that will have the ultimate control over timing and the procedures to be followed. Wasting the time of the Court or the other parties is frowned upon and may result in costs being awarded against you. Information should be communicated in a timely fashion or in accordance with any directions the Court may give.
Seek professional advice
You should consider seeking advice from a lawyer, or from a resource management professional, to prepare your case. Lawyers, in particular, can interpret legislation and previous Court decisions, and apply these to your case. They can talk to you about the likely success of the proceedings. This is important due to the ability of the Environment Court to order parties to pay costs (see below). A lawyer can represent you and help you at a hearing. They can also ensure the right procedures are followed, including making sure your action is lodged correctly and served on the necessary people, and that evidence is exchanged with the other parties. Community law centres, and environmental law centres that are in some areas, can also provide assistance.
You should think carefully about what other specialist input you might require to support your case. This might include hiring an expert to report on an aspect of your case, for example, a traffic engineer or landscape architect. They may then be able to give evidence at a hearing.
Costs
The cost of lodging an appeal with the Environment Court is currently $55 GST inclusive. However, this fee is set to increase, and a daily hearing fee is likely to be introduced. The Ministry of Justice website: www.justice.govt.nz has details of the fees.
There are also a number of ongoing costs you should consider. For example, lawyers' fees, expenses in obtaining and preparing evidence, travel costs to get to hearings or mediation meetings, and the possibility that you will need to take time off work to attend these. Some costs of the appeal may be reduced if you join with other people in bringing your case to the Court. You should also find out whether you are eligible for any financial aid, for instance from the Environmental Legal Assistance Fund which is administered by the Ministry for the Environment. For more information about the Environmental Legal Assistance Fund visit: Environmental Legal Assistance Fund
If you decide to bring an action there is a risk that costs might be awarded against you if you are unsuccessful. An award of costs can be made against you in a variety of circumstances and can be enforced by the District Court. An example may be where unnecessary delays are created for the Court or the other parties through you not meeting deadlines, or where you withdraw your case before a hearing which the other party has incurred costs preparing for.
However, the Court's general practice is for parties to bear their own costs and an award of costs does not automatically follow the event in favour of the successful party. In some instances the Court may even award costs in favour of an unsuccessful party, where the Court considers this is merited.
For more information about the awarding of costs by the Environment Court see 'An Everyday Guide to the RMA' booklet 6.3 Awarding of Costs by the Environment Court.
