Auckland Wellington Christchurch Jennifer Caldwell September 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

3© Buddle Findlay 2005 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© Buddle Findlay 2005 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© Buddle Findlay 2005 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© Buddle Findlay 2005 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© Buddle Findlay 2005 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© Buddle Findlay 2005 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© Buddle Findlay 2005 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© Buddle Findlay 2005 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