A round-up of recent developments

ADLS’s Committees are made up of hardworking members and are regularly consulted by outside agencies and government departments. As such, they make an important contribution to the development of New Zealand law and policy.

The Environment and Resource Management Committee has been hard at work over the last few months, and has continued to keep members abreast of important milestones in the proposed Auckland Unitary Plan process and significant case law developments in the areas of environment and resource management law.

Here, Committee Convenor John Burns picks up on some highlights from a recent visit of Principal Environment Court Judge Newhook to the Committee, and summarises a recent decision of the Environment Court – Re Waiheke Marinas Ltd Application (Decision 2015 EnvC 218).

Visit from Principal Environment Court Judge Newhook

The Committee was pleased to welcome the Principal Environment Court Judge, his Honour Judge Newhook, at its December 2015 meeting.

His Honour updated Committee members on a number of best practice developments being adopted by the Court including:

  • increasing use of conferences (by phone, video, or Court room) for case management purposes;
  • a wide range of ADR processes, including mediation, facilitated meetings, joint fact finding, reality testing, and independently facilitated expert witness conferences. These are often carried out by the Court’s Commissioners, rather than the judges;
  • appointing process advisers to submitters to advise self-represented persons and community groups on matters of process in cases where there is a large number of self-represented parties. This is often the case in “public-interest” litigation and particularly useful where, with the assistance of an adviser, some or all of those parties may agree to coalesce under the banner of a community group;
  • encouraging parties who reach agreement to approach the Court with a draft consent order for consideration by a Judge, noting that the Court’s role is to consider the proposal against the purposes and principles of the RMA, not simply “rubber-stamp” it; and
  • an increased use of technology, including iPads for hearings and the interactive use of the Court’s website for exchange of evidence and other communications.

The Committee also discussed with the Judge some concerns that had been expressed by members of the profession as a result of its recent decisions in the two Tram Lease cases (Tram Lease Ltd v Auckland Council [2015] NZEnvC 137 and Tram Lease Ltd v Auckland Council [2015] NZEnvC 133), where the Court had questioned the role of expert planning witnesses, and whether it was appropriate for them to express an opinion on the ultimate question which was before the Court.

Judge Newhook advised that a group of practitioners was working on a guidance note as to the responsibilities of planners as witnesses before the Court and this would soon be available.

[Note: The guidance note has now been published, and can be read on the Resource Management Law Association’s website www.rmla.org.nz.]

The Committee appreciates Judge Newhook making the time available to meet with it annually, and the helpful and interesting interchange which takes place each time.

Re Waiheke Marinas Ltd Application (Decision 2015 EnvC 218)

In this recent decision, the Environment Court declined an application by Waiheke Marinas Ltd (WML) for resource consents to establish a recreational boat mooring marina at Matiatia Bay at the eastern end of Waiheke Island.

At the request of the applicant, the application did not have a Council hearing, but was referred directly to the Court for consideration under section 87D of the Resource Management Act 1991 for a first instance (and only) merits hearing. Section 87D was inserted in the Act by the Resource Management (Simplifying and Streamlining) Act 2009 with the express purpose of speeding up the process for determining significant or complex resource consent applications. However, it is questionable whether that purpose was achieved in this case. The application was lodged in early 2013, and the decision released in 2015. It is unlikely this was any less a time frame than if the application had been heard by the Council at first instance and the Court subsequently on appeal.

As the Court points out, the time the proceedings took was not as a result of the Court process. Even though, in addition to the applicant and the Council, no fewer than 310 submitters lodged notices to participate in the process, the matter proceeded expeditiously to hearing in October 2014. However, on the second to last day of the hearing, the applicant dropped what the presiding judge openly described to the parties as “something of a bomb-shell” by withdrawing a significant part of the application, which sought a reclamation for a carpark. As the Court comments in the decision, this led to a “tortuous course over many months”, which culminated in a further exchange of evidence in respect of a revised proposal and a resumed hearing in July 2015.

One result of a direct referral without a preliminary Council hearing is that the opportunity for a proposal to be modified between the Council hearing and Environment Court hearings in response to matters which arise at the first instance Council hearing is lost. This brings into question whether a direct referral under section 87D actually achieves the purpose intended by the provision.

Also of note is the preface to the decision, which is some 127 pages long, in which the Court “strongly encourages readers of this decision to take time to read it right through” in order to understand how the Court went through the process of weighing what it described as “a basket of highly complex issues” in reaching its ultimate decision.

Following that advice, this case note does not attempt a précis of the rationale for the decision, but rather invites those interested to read it in full. However, an idea of the variety and complexity of the issues the Court had to consider may be obtained from simply listing those matters, which were:

  • the relevant planning framework;
  • coastal engineering, marina design and wave/wake assessment issues;
  • effects on navigation safety;
  • landscape and visual issues, natural character and amenity issues;
  • effects on tourism and recreation;
  • Māori cultural and historic heritage matters;
  • traffic/transport;
  • effects on coastal ecology; and
  • Part II of the Act.

Having considered all these matters, the Court concluded that its findings about effects on the environment and the relevant provisions of the statutory instruments militated quite strongly against granting consent to the marina when each matter was independently weighed and placed in the mix, despite some support being offered by some aspects, and that to grant consent would not serve the promotion of sustainable management of natural and physical resources, which is the overall purpose of the Act. Consent was declined accordingly. 

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