Jennifer Caldwell

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RMAA 2005 Commentary for RMLA Auckland Branch

• Jennifer Caldwell
• September 2005

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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

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