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RMAA 2005: Commentary for RMLA Auckland Branch

RMAA 2005: Commentary for RMLA Auckland Branch. Jennifer Caldwell September 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?

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RMAA 2005: Commentary for RMLA Auckland Branch

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  1. RMAA 2005: Commentary for RMLA Auckland Branch Jennifer Caldwell September 2005

  2. 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

  3. 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

  4. 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

  5. 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

  6. 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?

  7. 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?)

  8. 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?

  9. 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

  10. 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

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