RMA Decision Making

1. RMA Decision Making Council Level Court Level John Burns 18 November 2004

2. ISSUES • Consent decision making at Local Authority level. • Consent decision making at Environment Court level.

3. INTRODUCTION • Overall the proposal seems to significantly shift court procedures down to council level. • There are a number of problems with this proposal. • There is also a simple solution.

4. CONSENT DECISION MAKING AT LOCAL AUTHORITY LEVEL • WHAT IS THE PROBLEM? • According to the Cabinet briefing paper of 13 September 2004: • Inconsistent and unsound decision-making “in a minority of cases” . • “perception” by applicants and general public of bias in decision-making. • “belief” that decision-making easily captured by vexatious litigants and trade competitors, causing unnecessary delay. • Council hearings are not sufficiently “inquisitorial”.

5. IS THERE A PROBLEM? • Use of words such as “perception” and “belief” suggest concerns anecdotal, rather than product of robust analysis. • Council hearings are a process to resolve disputes between parties with opposing views and aspirations. • Inevitable some parties will be aggrieved at outcome, contend bias, capture, etc. • Also inevitable that sometimes parties will use delay as a tactic, if in their interests. • Happens in all litigation, always has, not unique to RMA.

6. STATISTICS • In year to 30 June 2002, nationwide only 1.8% of local authority consent decisions appealed. • ARC in year to 30 June 2004*: • received 977 notified 71 • held 29 hearings 14 appeals • only 20% of notified ARC decisions resulted in an appeal. • only half of those required a Council hearing. • Can’t speak for other local authorities, but doesn’t indicate to me widespread dissatisfaction with ARC consent decision-making. • *data taken from ARC resource consent records for the 2004 financial year.

7. WHAT IS PROPOSED • Clarify consultation obligation is with applicant, not local authority. • Enable applicants to refuse to provide further information. • Allow neutral submissions. • Enable Council to hold compulsory pre-hearing meetings. • Provide for mandatory accreditation of hearing Commissioners/Councillors . • Require Councils to take an “inquisitorial” approach at hearings.

8. COMMENT ON PROPOSALS • No particular problem with those except for the last one. • Doubt Councils will want to compel attendance at pre-hearing meetings. • Presently use judgment as to whether pre-hearing meeting would be useful, or result in unproductive slanging-match. • Suggest likely to continue to do so, rather than try and compel reluctant party to attend a meeting they don’t want to be at, and likely to disrupt. • But as long as enabling, not requiring Councils to exercise new procedural powers, probably OK.

9. COMMENT ON “INQUISITORIAL” PROPOSAL • Cabinet paper says “the role of consent authorities will be clarified as inquisitorial bodies, with enhanced powers to direct the hearing process”. • Not clear what that means – already have those powers, and in my experience exercise them as appropriate. • If some Councils are not doing so, then answer lies in quality of their hearing Councillors/Commissioners – accreditation proposals best way to achieve that. • Not clear what paper means by “inquisitorial” process. In legal terms, one of two systems of decision-making, the other is the “adversarial” process.

10. COMMENT ON “INQUISITORIAL” PROPOSAL • Main feature of “adversarial” system is cross-examination. But RMA at present expressly forbids cross-examination at Council hearings. • No proposal to change that, but cabinet paper says there is to be “sufficient testing of evidence to avoid duplication of processes at Environment Court”. • Don’t see how this is to happen without cross-examination.

11. CONCLUSIONS • Council hearings are already more inquisitorial than adversarial in nature. • Also relatively informal, no role for procedural wrangling, tend to focus on issues. • If extra powers are to be given to Councils, as long as optional, may be useful at times. • But if compulsory, then potential for parties to mount process challenges. • This will simply add to costs and delays at Council level without adding any benefits.

12. CONSENT DECISION MAKING AT ENVIRONMENT COURT LEVEL • WHAT IS THE PROBLEM? • According to Cabinet paper: • Appeal hearings duplicate the process at the Council hearing. • New evidence can be raised on appeal. • Parties “frequently hold back matters then enlarge the scope of matters taken on appeal” by introducing new evidence. • The Court “may not fully utilise all its inquisitorial powers, and its processes tend to be adversarial”.

13. IS THERE A PROBLEM? • Usually applicants change their proposal for an appeal hearing in an attempt to meet the concerns of opponents and/or the Council. • Would have thought that is an expected part of the process and a good thing; a sign that the process is working to achieve a more acceptable environmental outcome for all. • Often leads to a settlement, at least of some issues, assists the Court in respect of others. • Not my experience, nor that of ARC, that parties, and especially applicants frequently hold back evidence at Council hearings.

14. IS THERE A PROBLEM? • Our experience is that all parties keen to produce best case, so that if matter goes to appeal, will have Council on their side in Environment Court. • What parties do is tailor their case at Council level to the extent they judge is necessary to succeed. • If favourable officers report, may be able to produce less evidence, rely on report. • That’s a good thing, reduces time and cost of hearings.

15. WHAT IS PROPOSED • “Clarify” role of Court to inquire into applications, further define issues and call for independent reports. • Require Court to have regard to Council decision. • Not allow the Court to conduct a full hearing of all the evidence the parties want to put to it (as it does at present) unless certain criteria apply.

16. SPECIFIC PROPOSAL • That the Court will only be allowed to hear evidence not presented at the Council hearing if: • Evidence relied upon at the Council hearing was unsafe. • Evidence relied upon at the Council hearing was insufficiently tested. • Principles of natural justice were not observed at the Council hearing. • Important new information has become available.

17. GENERAL COMMENT ON PROPOSAL • Apparently aiming to change Environment Court process from “adversarial ” to “inquisitorial”. • Has not demonstrated improvements – to either environmental outcomes, or the how cases are dealt with? • Environment Court operates as most other NZ Courts – hears the evidence the parties choose to put before it, has that evidence tested by cross-examination and its own questioning, makes a decision. • Also makes a site visit, so exercises own judgment based on that as well. • What’s wrong with that process?

18. COMMENTS ON SPECIFIC PROPOSAL • Parties will need leave of Court to produce new evidence. • Means even if slight change in application, will need to apply to Court for leave. • Almost every application has some change. • So on almost every appeal, will be a preliminary procedural application to Court. • Parties will have to prepare argument on that, and Court hear and determine it, before substantive case heard. • Will add hugely to cost and delays in Environment Court - exact opposite of what Govt is trying to achieve.

19. COMMENTS ON SPECIFIC PROPOSAL • Will also mean parties will need to call at Council hearings same experts as would wish to call if decision appealed to Court (because otherwise may not get leave to call new expert). • Means will want “best” expert in field at Council hearing – whereas at present may be content with someone more junior at that level. • Again, will add hugely to costs, pressure on experts time often unnecessarily, as may well be no appeal. • Also, doesn’t provide for Council case. Council officers don’t give evidence at Council hearing – just produce officers report. • Report is often compilation of various officers views. • Presumably, Councils will have to apply for leave on every appeal to call their witnesses, as will be new evidence.

20. COMMENT ON PROPOSED GROUNDS FOR LEAVE • “Evidence unsafe or insufficiently tested” • If cross-examination not allowed at Council level, how is evidence to be “sufficiently tested”? • Unless evidence at Council hearing recorded, and a transcript is made available to the Court, how is it to know if the evidence at the Council hearing was safe or sufficiently tested? • Recording of evidence at Council hearings would be a logistical nightmare, even for a big Council like ARC. • Some held in relatively remote locations (Great Barrier, rural halls). Often 2 or more hearings at same time. • Environment Court only recently been able to introduce transcripts, because of costs and logistics.

21. COMMENT ON PROPOSED GROUNDS FOR LEAVE • If difficult for ARC and Dept. of Courts, how is Buller District going to manage it? • Huge cost (which will fall on applicants) of recording every Council hearing for the small minority of cases that actually end up in an Environment Court hearing. • “Principles of natural justice not observed at Council hearing” • Again, Court will not be able to decide his without recording and transcript of Council hearing. • Provides another opportunity for pre-hearing procedural wrangling, added costs and delays. Introduces a new role for the Court in effectively reviewing Council processes.

22. COMMENT ON PROPOSED GROUNDS FOR LEAVE • What is the point of that – isn’t the Courts time better used in just getting on and hearing the case on its merits? • “Important new information has become available” • Another opportunity for pre-hearing argument – the Court will have to decide whether the information the party wants to introduce as evidence is newly available, and whether it is important. • It can’t do that without hearing from the parties, seeing the new information, and comparing it with the “old” information on the subject.

23. COMMENT ON PROPOSED GROUNDS FOR LEAVE • Will the fact that an applicant has modified his/her proposal to reduce its scale and effects, in an attempt to meet the concerns of opponents, be “important new information” entitling them to bring new evidence? • If not, does that mean every applicant on appeal is obliged to proceed with their proposal in the exact same form as at the Council hearing? • Is that likely to be conducive to either an efficient process, or a sustainable resource management outcome? • If it is, then virtually every application will require new evidence, so what is the point of a threshold test everyone will pass?

24. CONCLUSIONS and SUGGESTION • The proposed changes to Environment Court procedures are unworkable, and will add hugely to costs and delays both at Council hearing level and in the Court. • They are also unnecessary. • They should be abandoned completely.

25. CONCLUSIONS and SUGGESTION • Nevertheless, if there is a wish to retain an option for an Environment Court decision based only on the information at the Council hearing and not the hearing of new evidence; then the Act could provide for the Court a discretion to do so in appropriate cases if any party requested that. • This would still not overcome the costs and delays inherent in any pre-hearing application procedure. • However, would effectively preserve the status quo while providing an opportunity for a different process to be adopted in those cases where the parties and the Court considered that appropriate.