Auckland Wellington Christchurch www.buddlefindlay.com

Jennifer CaldwellSeptember 2005

RMAA 2005: Commentary for RMLA Auckland Branch

2 © Buddle Findlay 2005

Comments

• Focus on consent processes– Further information– Pre-hearing meetings– Hearings and decisions

• With retention of de novo Environment Court hearings, has the impact of these changes been diminished?

• Need for greater rigour, more robust process decisions, timely responses

• Arguably greater onus on submitters

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Background: bill as introduced

• Major changes proposed to scope of Environment Court jurisdiction on appeal: de novo hearing to disappear, greater weight to be given to first instance council decision, evidence limited

• Increased emphasis on robust council hearing process, including discretion to:

– Pre-circulate evidence

– Record evidence

– Strike out submissions

– Require further information

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Select Committee

• Environment Court to retain de novo appeal but must have regard to council decision

• In general, new hearing powers retained, though discretion required to be exercised in a manner consistent with scale of proposal

• Expanded rights of objection under s357A where decisions made against applicants or submitters on procedural grounds

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Further information (1)

• Section 92: “request” replaces “require”

• Consent authority may commission reports if activity may have significant adverse effect and applicant “does not refuse to agree”

• New ss92A and 92B for responses to requests

• Power to decline application in specific circumstances or if council considers info insufficient to enable determination of application

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Further information (2)

• Decision to decline can be appealed to Environment Court: if Court holds info sufficient, may determine application on merits?

• NB: what about notification?

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Pre-hearing meetings (1)

• New section 99

• As introduced, councils could make attendance compulsory

• Now may “invite or require”, but if require, applicant must agree

• Limited purpose (clarifying or facilitating)

• Yet report to be made may include procedural matters for hearing (quasi-judicial conference?)

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Pre-hearing meetings (2)

• If attendance required, Council may decline to process application/consider submission for non-attendance without “reasonable excuse”

• Appeal rights lost, but right of objection under s357A

• Potential for strategic use?

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Hearings and decisions (1)

• New ss41A-41C confirm new hearing powers, subject to consideration of whether scale and significance of hearing make exercise of power appropriate:

• Amended time limits if evidence pre-circulated

• Strike out of submissions subject to objection right

• Ability to direct order of business, prescribe time limits for presentation of case

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Hearings and decisions (2)

• Section 113 now specifies content of decisions – Relevant statutory and policy statement/plan

provisions considered

– Principal issues in contention

– Summary of evidence heard

– Main findings of fact