Part C - Improving consent decision making contd.
Improving consent decision making at the Environment Court
Background
88. The Environment Court is a specialist court having jurisdiction over environmental and resource management matters. The RMA confers powers on the Court and the Court operates under guidance of formal practice notes. The work of the court is predominantly plan and resource consent appeals. Although only a small proportion of local authority resource consent decisions are appealed to the Court (1%) the workload is demanding (1,000 - 1,200 new cases per year) and until recently there has been a significant level of complaint about delay in getting hearing dates.
89. Because the Court's workload is largely generated by decisions of local authorities the Court considers itself to be essentially an appellate court. Nevertheless, a hearing before the Court is a 'de novo' hearing (a full hearing of the entire matter), and the Court considers afresh all matters of fact and law, unless the parties mutually agree to some limiting. It is the first point in the RMA process where these issues are tackled in an adversarial court setting with cross-examination taking place as a matter of course.
What is the problem?
90. Appeals to the Environment Court often duplicate the processes at the (first) consent authority hearing and new issues and evidence can be raised on appeal. The parties frequently 'hold back' matters and then enlarge the scope of matters taken on appeal through their ability to introduce evidence that was not presented at the consent authority (first level) hearing. Further, the Court may not fully utilise all of its inquisitorial powers, and its processes tend to be adversarial.
91. Under current legislation the only way to challenge decisions to notify or not to notify a resource consent is to seek a judicial review by the High Court. The Environment Court is better placed as a specialist court to deal with challenges on notification. The judicial review procedure in the High Court is expensive and time-consuming for all the parties involved. The problem with giving this function to the Environment Court is that it could overload the work of the Court and although delays have reduced, they would need to reduce workloads even further to allow additional functions to be added to the Court.
92. There is some concern that in the absence of clear guidance (either through the Act or the Court's practice notes) variation has occurred in the Environment Court's approach to mediation. Clear guidance is also absent on when Commissioners will sit alone to hear matters.
What is the outcome sought?
93. Move the Environment Court away from a de novo hearing to a 'focused' rehearing approach. This proposal will enable the Court to have regard to the consent authority decision, reconsider the evidence recorded at the hearing, and decide whether further evidence should be admitted. This change complements, and depends upon, a more robust (first) consent authority hearing. However, there will need to be a transitional lead in time to ensure sufficiently improved local authority processes in the first instance.
94. The Court already has most of the powers it requires in order to control its proceedings. However, additional powers will be given to the Court such as the power to seek a report from an independent expert. An 'objectives' clause will emphasise the inquisitorial nature of the Court. The Court will be expected to use its inquisitorial powers, and to move to a more inquisitorial approach.
95. Provision should also be made for notification and non-notification decisions to be appealed to the Environment Court. This provision should be included in the Act, but only implemented at a point when the Court's backlog has reached equilibrium (note: current backlog is approximately 1400 cases and equilibrium is suggested to be 1100 to 1200 cases or 200 cases per Judge).
96. Greater consistency between the various registries of the Environment Court is proposed to deal with issues around mediation and Commissioners sitting alone.
What is proposed?
97. It is proposed that the Act clarify the roles of the Environment Court, to inquire into applications and to further define issues and call for independent reports. Further, the Court will be required to run a focused hearing, having regard to the (first) consent authority's decision and thus conduct a rehearing, rather than a hearing de novo. De novo would only be used if the Environment Court determined that it was appropriate to do so based on the following criteria:
(a) evidence relied upon at the consent authority hearing was unsafe
(b) evidence relied upon was insufficiently tested by the panel at the consent authority hearing
(c) principles of natural justice were not observed at the consent authority hearing
(d) important new information has become available but wasn't available at the time of the initial hearing.
98. A rehearing in this context would require the Environment Court to determine the legal rights and obligations of the parties as at the date of the rehearing. The Environment Court has the ability to consider new circumstances or changes in the law. It may also admit further evidence, though it does not hear all the witnesses again. In deciding whether to admit new evidence the Court must ask whether the new evidence was reasonably available at the time of the original hearing. This contrasts with a hearing de novo, where the Court hears the matter afresh and all the evidence is usually called before the Court. The appellant must start again in making out his or her case.
99. It is proposed to broaden the ability of the Environment Court to hear appeals on decisions to notify or not notify resource consents. To achieve this, provision will be made so a declaration by the Environment Court can be sought for whether an application for resource consent was correctly notified (this gives the Environment Court jurisdiction to hear challenges to such notification decisions)
100. These new provision would be commenced by order in council following a decision of the Minister for the Environment that the Environment Court backlog had reached equilibrium and the Court could cope with the new function (ie. the provision will come into force when it is decided is appropriate).
101. Further, the Environment Court will soon be issuing guidance through practice notes that will assist in the consistent application of alternative dispute resolution (mediation and arbitration) and Commissioners sitting alone.
What are the risks, costs and benefits?
102. The Environment Court has made huge inroads into reducing delays and the leverage of an appeal. Without undermining the new case track system the proposals will have the benefit of sharpening attention in the first hearing (local authority level) and avoiding duplication that occurs at different steps. The proposal to move away from de novo hearings in the Environment Court will potentially reduce the game playing that occurs between a decision from the first hearing and the Environment Court hearing.
103. There may be increased costs transferred from the Environment Court process down to the local level as a result. These would apply to all participants.
104. There will be a settling in period for the new process of appeals. Until such time as the discretion afforded to the Court over whether it should adopt a focused appeal or de novo is clear, appellants are likely to seek leave for de novo appeals. There may be increased costs while the Court determines these applications.
105. It is opportune to provide policy that allows for challenging consent notification decisions in the Environment Court, as opposed to the High Court. Allowing flexibility as to the commencement will enable the provision to be applied when Environment Court backlogs have reduced to appropriate levels. There is opposition to the inclusion of these provisions from the Treasury and Local Government New Zealand. The concerns are from business that the proposals would impact on the ability of the Court to function and that there is little justification of the action.
106. Guidance through Environment Court practice notes on the use of alternative dispute resolution will assist in its consistent application, irrespective of the Registry within which an appeal is lodged. Further, the use of 'Commissioner Alone' hearings will provide a low cost option for the adjudication of disputes that cannot otherwise be resolved via alternative dispute resolution procedures. However, there are some instances when these less formal mechanisms are unable to be utilised because of complex or significant questions of law, or where there is sufficient public interest to justify a decision of an Environment Judge.
Last updated: 6 May 2008
