In this chapter we examine some further proposed reforms:
that are common to both application and plan procedures
that relate to designations.
5.1 Common matters
5.1.1 Council replies
At present section 289 of the Act requires that upon the filing of an appeal against any council decision under the Act, the first step is for the council to file with the Court a Reply to the appeal. The purpose of this document is to appraise the appellant and other parties of the grounds upon which the appeal is to be opposed.
In the TAG’s view, the reply no longer fulfils any valuable purpose, and councils should be relieved of the obligations to prepare and file such a document.
Following the passage of the amended section 113 in 2005, the council decision on applications is now required to be sufficiently full to provide all the particulars required of a reply. Our experience is that council decisions on plan submissions are almost universally sufficiently complete in their expression, such that there is similarly no need for a reply to be filed.
Repeal of this obligation will not only reduce, albeit slightly, councils’ legal fees in defending appeals; but will also, again slightly, reduce the delays arising from complying with the present regulations.
5.1.2 Security for costs
We are aware that it was part of the Government’s election platform, that it would reintroduce the power of the Environment Court to order appellants to give security for costs. We agree with this proposed reform.
We are aware of a number of recent examples of unsuccessful appellants against whom awards of costs have been made, being unable to meet the same. The Environment Court’s practice is to award costs against community interest groups only in cases where they have acted with a degree of irresponsibility.
It is unfortunate that such default means that a successful applicant is deprived of securing a contribution to its costs. However, an applicant is in a sense a “voluntary participant” in the process. Thus is could be said to be even more unfortunate when a small council, such as the Buller District in one case of which we are aware, was put to the considerable expense of defending its decision, only to win and be unable to recover any of its expenses. Another notable case is that brought by the Omokoroa Ratepayers Association against the Western Bay of Plenty District Council in 2002. The Association opposed a major development. The Councils’ costs totalled over $300,000.00. The Court ordered the Society to pay a little over $150,000.00. These costs were never paid and the Association dissolved itself. The burden then fell directly upon the already overburdened sector of the community, the general ratepayer (in addition to the applicant). Councils have much more deserving avenues for the commitment of their environmental budget than paying lawyers.
We are aware of a number of cases in which the Courts have found community groups to have acted vexatiously, frivolously, improperly or otherwise in abuse of process. If some of those appellants had been ordered to give security for costs; their proceedings may well have been better conducted.
Our understanding is that when the power to Order security for costs formerly existed, the Environment Court would but rarely make such an order; and in our view the restoration of this power would be unlikely to represent a significant barrier to responsible public participation.
5.1.3 Filing fee for Environment Court appeals
The fee for filing an appeal to the Environment Court was set at $55.00 in 1988, i.e. over 20 years ago. We understand that in 2004 Cabinet agreed to increase the fee, but for reasons unknown to us, the increase has never been given effect.
Even in 2004, it was estimated by officials that the real cost of filing an appeal was $1,280.00, a figure that would obviously be more today.
We recommend that the filing fee be increased, and that at some future convenient time, consideration also be given to bringing the Environment Court into line with other courts, by way of charging daily hearing fees.
Some may fear that raising the filing fee may serve as a deterrent to community participation in the process. Given the high cost of pursuing an appeal, we very strongly doubt that an increase to something in the vicinity of $500.00 would do anything more than deter the most casual of appellants; and that would not necessarily be a bad outcome.
We note that the Environmental Legal Aid Fund has recently increased its maximum grant from $30,000.00 to $40,000.00; and so have an added level of comfort that an increase in the fee is unlikely to deter serious, responsible public interest appellants.
In Chapter 2, we recommended that the Act be amended so that requiring authorities no longer make the decision on their own designations, and that the Council’s recommendation be the decision on the proposal.
A further point in relation to designations is that at present a designation only relates to the land use aspects of a proposed work.
As the Act is currently drafted as regards designations, and in particular sections 168 and 168A, a designation issued by a requiring authority is a “land use” focused permit relating to a public work. Consents that may be required at the implementation/construction stage covering such matters as earthworks, stream diversion, stormwater discharges, authority to modify or remove an historic site (under the Historic Places Act 1993), reserve revocations (under the Reserves Act 1977) and so on, are a separate suite of consents that are either sought concurrently or immediately prior to the detailed design/construction phase under the RMA or other legislation. This is considerably at odds with the “one stop shop” principle which was such an influential factor in the introduction of the Act.
As a result, significant time delays can occur. The ALPURT B2 project, for example, suffered some implementation delays because of the need to obtain additional resource consents, and the need to significantly modify existing consents already obtained.
In the TAG’s view, significant modifications to the existing provisions relating to designations and their associated consents are warranted. In our view, once a designation is approved, any consequential consents required should be deemed to be a controlled activity where the focus of conditions is on avoiding, remedying and/or mitigating any adverse effects.
The TAG accepts that the level of amendments required to give effect to such a change in status for designations is likely to be far reaching and beyond the scope of the Phase 1 streamlining process. We therefore recommend that the Government gives particular consideration to the use of project related approvals as part of the Phase 2 deliberations. If a particular infrastructure review work stream is contemplated, then this proposal would fit well within such a brief.