NZLII Home | Databases | WorldLII | Search | Feedback

New Zealand Journal of Environmental Law

You are here:  NZLII >> Databases >> New Zealand Journal of Environmental Law >> 2004 >> [2004] NZJlEnvLaw 7

Database Search | Name Search | Recent Articles | Noteup | LawCite | Download | Help

Daya-Winterbotham, Trevor --- "RMA déjà vu: reviewing the Resource Management Act 1991" [2004] NZJlEnvLaw 7; (2004) 8 NZJEL 209

Last Updated: 12 February 2023


RMA Déjà Vu: Reviewing the Resource Management Act 1991

Trevor Daya-Winterbotham*

This article considers the RMA review announced by the Government in May 2004 and comments on what should be done to improve practice under the RMA. In particular, the issue of delay in relation to the resource consent process is considered, together with the peculiar issues relating to major projects. Changes to the jurisdiction of the Environment Court are also critically analysed.


The current review of the Resource Management Act 1991 (“RMA”) was launched by Associate Minister for the Environment, David Benson-Pope, on 12 May 2004 hard on the heels of the announcement that Project Aqua had been abandoned and less than 12 months after the Resource Management Amendment Act 2003 (“RMAA 2003”) received the Royal assent.

The review will focus on “improving both the legislation and the way the Act operates in practice”.1 It will concentrate on five key areas:

* BA (Hons) in Law (LJMU), MA in Environmental Law (DMU), FRSA, Legal Associate RTPI, Barrister (Lincoln’s Inn & New Zealand), Senior Lecturer in Law in the University of Waikato.

  1. Ministry for the Environment, Improving the RMA 2004: the scope of the programme (May 2004) at 1.
  2. Ibid, at 2.

The objective of the review is “to identify what initiatives can be taken immediately through both amendments to legislation and other measures and what will require further work”.3 It was originally anticipated that an Amendment Bill would be introduced into Parliament in September 2004 and that the Bill would receive the Royal assent during 2005. However, the timing for introduction of the Bill has slipped and the Bill has not (at the time of writing) been introduced into Parliament.

A cynical person could, however, be forgiven for experiencing a sense of déjà vu given the recent enactment of the RMAA 2003 on 19 May 2003 following a five year review process from 1998 to 2003 based on the objectives of improving the implementation of the RMA “with particular emphasis on reducing costs and delays” and strengthening the provisions “that provide for the establishment of national instruments ... to assist with management of nationally important environmental issues”.4 This article will, therefore, critically analyse the need for further changes to the RMA against the background of progress made with the review process to date.

Given the limitations of space, this article will focus on particular aspects of the proposed changes relating to achieving the right balance of national and local interests, and improving the consent decision-making process. It is intended that a sequel to this article will be published after the Amendment Bill has received the Royal assent, analysing whether the objectives of the review have been achieved in terms of any statutory amendments made to the RMA as a result of the review.


Before turning to look in detail at the proposed amendments to the RMA it is important to have an overview of the review in terms of what has occurred to date and the next steps which are to be taken in the process, together with an understanding of the general tenor of the review and the broader political objectives which the Government wishes to achieve. These matters will be covered briefly in the next paragraphs.

2.1 Outline of Review Process

The review process launched by the Associate Minister has to date comprised the announcement of the review in May 2004, the establishment of a five-member

  1. Ibid.
  2. Resource Management Amendment Bill (No 2), Explanatory note (March 2003) at 1.

reference group to provide independent advice to the Associate Minister on ideas and proposals in June 2004, meetings with business and non-governmental organizations in June 2004, the release of the comprehensive package of RMA improvements in September 2004 and public meetings in the main centres in September 2004. The process is to be completed with the introduction of the Amendment Bill into Parliament later in 2004 when:

There will be opportunities for the public to make submissions on the proposed amendments during Select Committee consideration of the Bill.5

2.2 Background to the Review

The background to the review was set out in one of eight information sheets released by the Ministry for the Environment (“MfE”) in September 2004 which stated that:

On the whole the Act works well to protect our environment. However, over the 13 years since the RMA came into force, concerns have been raised by some people about unreasonable delays, compliance costs and bureaucracy, and abuse of the consultation process. Some of these concerns appear to be based on myth. Some arise from the conflict between people’s values which any law governing resource use would have to deal with. Some are real problems.

Many of the problems have been dealt with by previous amendments to the Act, improvements in the Environment Court and sharing of best practice among councils. However, other concerns were identified during consultation with business, local government, environmental organizations and the wider community.6

These statements are important for two reasons. First, they provide an indication of the nature of the debate about the RMA that continues to be waged from strong ideological viewpoints notwithstanding the fact that the RMA has been on the statute book for over 13 years. Second, they illustrate the informal nature of the consultation process that has informed the current review process. Whilst there have been a number of “opportunities for public input during the four month review process”, it is of note that no formal submission process has been provided during the current review.7

  1. Ministry for the Environment, Improving the RMA – Overview (September 2004) at 2.
  2. Ibid, at 1.
  3. Ibid.

Significantly, the scope document noted that, as there had “already been considerable dialogue about the issues, a lengthy consultation process [was] not considered necessary”.8 The concerns identified by the dialogue which preceded the announcement of the review in May 2004 will therefore be important when critically analysing the proposals to improve the RMA.

2.3 Dialogue about the Issues

The MfE has posted details on its web site of the feedback about the RMA received from “discussions with government agencies, local government, business, practitioner and environmental groups, and the wider community” during the period 2002 to 2003.9

The one page summary records concerns about Local Authorities in terms of their commitment to sustainable management, their ability to process resource consent applications efficiently and the inconsistent approaches taken by various Local Authorities. Concerns were also recorded about the cost and complexity of procedures for minor applications that imposed unreasonable compliance costs, the need to obtain consent from more than one Local Authority in relation to the same project and the lack of any national policy guidance in relation to infrastructure projects. Whilst on a more positive note the feedback recorded:

... the need to maintain opportunities to review decisions in a well-respected independent forum but to avoid any unnecessary duplication and/or delays.10

Separately, the suggestions made for improvements in practice and procedure under the RMA included capacity building for Local Authorities, the preparation of national policy guidance, using independent commissioners to decide applications where consent is required from more than one Local Authority and making greater use of alternative dispute resolution to resolve issues. In relation to Environment Court hearings, the suggestions included greater controls on the admission of evidence to avoid “unnecessary” duplication, providing appropriate sanctions to support directions, and “providing for preliminary review of appeals”.11 These points will be considered further when analysing specific proposals for improving the RMA.

  1. Ministry for the Environment, supra note 1 at 3.
  2. Ministry for the Environment, Feedback about the Resource Management Act during 2002 and 2003,
  3. Ibid.
  4. Ibid.

2.4 Objectives for the Review Process

In the press release issued with the “comprehensive package of RMA improvements” on 15 September 2004, the Associate Minister set out the Government’s objectives for the review process. He stated that:

The RMA has always recognized that ... important decisions are best made in the communities which might be affected by any initiative. This package of improvements is about practical solutions and improved processes to make the law work better.

By providing leadership and partnership with the community, business and local government we will get better environmental results.12

These statements by the Associate Minister place a strong emphasis on the principle of subsidiarity, namely, that where possible decisions under the RMA should be made by the level of government that is closest to the communities which might be affected by any initiative. Whilst delegated decision-making is one of the central themes in the RMA, it is apparent from the focus in the current review process on “achieving the right balance of national and local interests”13 that there may be a degree of tension between these two objectives.


Following on from the release of the scope document Improving the RMA 2004: The Scope of the Programme, the MfE held meetings in June 2004 with industry and non-governmental organizations to discuss the review. The meetings with industry took place on 28 June in Wellington and 30 June in Auckland. Three broad areas of concern were identified in the presentation to the meetings regarding the balance of national and local interests:

  1. Hon David Benson-Pope, Leadership Central to Comprehensive Package of RMA Improvements (15 September 2004) at 1.
  2. Ministry for the Environment, supra note 1 at 2.

Concerns have focused on the fact that Local Authorities are “increasingly being asked to consider projects that raise issues of national significance (e.g. transportation and energy infrastructure) in a policy environment that provides little or no guidance on how competing national benefits and local costs should be weighed”.15 Specific issues on which the MfE sought feedback at the meetings included changing the principles in Part II of the RMA and whether “recognition [should be given] to infrastructure and essential services”.16 Whilst it is important that such concerns should be resolved, the concerns themselves appear to be a product of history in terms of implementation of the RMA. For example, Dormer observed that:

The administration of the Act is firmly vested with local government. All projects, whether they be of national, regional, local or merely even neighbourhood significance, are required to obtain the necessary approvals from the relevant local government agencies. The applications for consents are considered in light of the relevant local plans and policies.17

More critically, however, Local Government has been left to implement the RMA in a policy vacuum in the absence of any National Policy Statements having been prepared by the Government. Against this background it is not surprising that achieving the right balance between national and local interests should still be a matter of concern. For example, Dormer also noted that:

... local government is faced with the task of weighing national considerations against purely local concerns. This potential conflict is a necessary consequence of the hierarchical regime upon which the Act is based, and is not a departure in any significant respect from the former legislation.18

The only effective control in terms of achieving the right balance between national and local interests is the jurisdiction of the Environment Court on appeal. As a result one of the manifest deficiencies of the policy framework under the RMA has been the re-litigation of issues (e.g. the effects of road noise and

  1. Ministry for the Environment, Government Presentation to Meetings: Improving the RMA

(June 2004) at 6.

  1. Ministry for the Environment, supra note 1 at 2.
  2. Ministry for the Environment, Improving the RMA Meetings (June 2004).
  3. Dormer A, The Resource Management Act 1991 – The Transition and Business (1994) at 28.
  4. Ibid.

electromagnetic radiation), via resource consent appeals or the plan preparation process. In this context, achieving the right balance of national and local interest becomes a matter of judgment for the decision-maker based on the available evidence.

3.1 Changing the principles in Part II of the RMA

Under the RMA the task of making decisions on resource consent applications and recommendations on requirements for designations is given, in the first instance, to Local Authorities. The ultimate test is whether a proposed activity will promote the sustainable management of natural and physical resources. Inevitably, applying s 5 of the RMA involves balancing and weighing the matters in issue. The question is, therefore, what guidance is available to Local Authorities to assist them in discharging their duties under the RMA?

Whilst the RMA provides the Minister for the Environment with powers to prescribe National Environmental Standards and to issue National Policy Statements, to date these powers have been under-utilized. As a result, the task of providing guidance on how competing benefits should be weighed has been left to the determination of the Environment Court in appeals. The Court has resolved the issue as to how s 5 of the RMA should be interpreted by applying an overall broad judgment. For example, in North Shore City Council v Auckland Regional Council19 the Environment Court held that:

The proposed method of applying s 5 ... involves an overall broad judgment of whether a proposal would promote the sustainable management of natural and physical resources. That recognizes that the Act has a single purpose ... Such a judgment allows for comparison of conflicting considerations and the scale or degree of them, and their relative significance or proportion to the final outcome.20

Subsequently, in Watercare Services Ltd v Minhinnick21 the Court of Appeal when considering whether a designation for a sewer pipeline should be subject to enforcement action under ss 314 and 319 of the RMA, due to adverse effects on Maori cultural and spiritual values, summarized the role of the Courts in relation to Part II of the RMA as follows:

19 [1996] NZEnvC 23; [1997] NZRMA 59.

20 Ibid at 94.

21 [1998] 1 NZLR 294.

The Court must weigh all the relevant competing considerations and ultimately make a value judgment on behalf of the community as a whole. ... In the end a balanced judgment has to be made.22

In specific cases where “issues of national significance” have been present the Courts have risen to the task of weighing “competing national benefits and local costs”. For example, in Auckland Volcanic Cones Society v Transit New Zealand23 the Environment Court was required to balance adverse effects on Mt Roskill from a proposed extension to the western motorway, against the need to complete the Auckland motorway system. Having taken both sides of the argument into account the Court held:

Thus if the purpose of the Act on a national scale is best achieved by the implementation of a state highway link then, subject to serious consideration concerning remedial action and mitigation measures, the Act does not require any natural feature, river, wetland, or natural feature to be avoided and thus permanently protected if the value of the proposed public work best achieves the purpose of the Act.24

In arriving at this conclusion the Court found that the proposed motorway extension was a matter of “national sustainability” that would promote sustainable management, because the proposed activity was found to have “significance of national importance and [sic] the economy of the nation as a whole”.25

Although this test could be inserted into s 6 of the RMA so as to give weight to matters of national importance in the decision-making process, it is submitted that legislative amendment alone would not be sufficient to resolve the dilemmas faced by Local Authorities. There would still be “a persuasive burden resting on the applicant” to prove his or her case.26 Applicants would therefore need to adduce sufficient evidence so as to enable the decision-maker to conclude that a project is of “national importance”. Similarly, amending s 6 of the RMA would not assist decision-makers in weighing competing considerations or arriving at a balanced judgment, particularly in cases where matters of “national importance” intersect with landscape issues or Maori cultural and spiritual values. Reference to relevant decisions from the Courts would still be required to guide Local Authorities through the decision-making process under the RMA.

22 Ibid at 305. 23 (A203/02).

  1. Ibid, at para 49.
  2. Ibid, at para 46.
  3. See Shirley Primary School v Telecom New Zealand [1998] NZRMA 66.

The Auckland Volcanic Cones decision, however, clearly indicates that applicants for infrastructure projects can demonstrate that a particular proposed activity is of national significance, and that the national interest in the project being allowed to proceed under the RMA can be given appropriate weight by the decision-maker. Indeed, Bennion has commented that:

The formulation [in the Auckland Volcanic Cones decision] implies that the integrity of the motorway system and safety are matters of “national sustainability” that will trump other matters.27

3.2 Giving Recognition to Infrastructure

The review process has therefore stimulated debate about amending s 6 of the RMA to acknowledge the national significance of infrastructure projects. Whilst Dormer recommended statutory amendment to overcome the problems identified in his report, more recently Local Government New Zealand has questioned the benefit of doing so in Enhancing New Zealand’s Resource Management Performance (2004). The report makes an important contribution to the debate. First, it questions whether the issue is really one of balancing national and local interests, or balancing “environmental and socio-economic objectives”.28 Second, it notes that while amending s 6 of the RMA could provide a more “explicit” statement about the national significance of infrastructure projects, it would not “resolve the critical issue” of how to balance conflicting considerations in a given case.29 Third, it recommends that any statutory amendment should be accompanied by appropriate national policy guidance to avoid perpetuating the policy vacuum that has haunted administration of the RMA since it came into force. Fourth, it questions whether in practice statutory amendment would make decision-making easier or provide greater certainty. For example, the report

notes that:

The result of such a change may simply be to enshrine on the face of the statute objectives that may be irreconcilable in any given context. It is difficult to see how this would make local authorities’ task any easier or give any greater certainty to applicants. ... The veracity of such a change has to be questionable. Any

  1. New Zealand Law Society, NZLS Intensive – The Courts and the Environment – Serious Issues (2003) at 8.
  2. Local Government New Zealand, Enhancing New Zealand’s Resource Management Performance (2004) at 7.
  3. Ibid, at 8.

benefits that might accrue might well be outweighed by the inevitable period of uncertainty that would follow and the unsettling case law.30

An alternative solution that was not been considered in the report could simply involve amending s 175 of the RMA (and related provisions) to require that designations should be provided for in the relevant Regional Policy Statement, rather than District Plans. This would provide greater prominence for major infrastructure projects in the policy formulation process under the RMA, and could avoid the mismatch between growth and infrastructure provision currently experienced in New Zealand and other OECD jurisdictions.

3.3 Improving the Expression of the National Interest

Subsequently, the Government has moved away from any proposal to change the principles in Part II of the RMA in order to give better recognition to infrastructure and essential services. Instead the comprehensive package of RMA improvements released in September 2004 includes:

Greater use of national policy statements and national environmental standards to give national direction and consistency across local government. The development process for policy statements and the scope of environmental standards will be improved.31

This position reflects feedback received by the MfE on the RMA review. For example, the Summary of Written Feedback about Improving the RMA records that response to the scope document:

... considered national policy guidance on certain matters needed to be strengthened possibly by increasing the number of national environmental standards and national policy statements. In particular matters concerning infrastructure, energy, water supply and sewage treatment were identified.32

The summary also noted that some respondents “considered the national interest was already adequately provided for in the Act”.33 So what has been proposed to balance national and local interests?

  1. Ibid.
  2. Hon David Benson-Pope, supra note 12 at 1.
  3. Ministry for the Environment, Summary of Written Feedback aboutIimproving the RMA

(October 2004) 2.

  1. Ibid.
The Government proposes to make better use of National Policy Statements and National Environmental Standards to fill the policy vacuum. Given the emphasis placed on transport and energy projects in the review process it is not surprising that the list of first priorities for the development of policy statements and standards includes energy, telecommunications, transport, and reticulated water and waste-water projects.34

Three specific proposals are made for changes to the RMA in relation to the preparation of National Policy Statements in order to streamline the policy formulation process. First, the requirement for a Board of Inquiry to be appointed under s 47 of the RMA to hear submissions made about proposed National Policy Statements and make recommendations to the Minister is to be made optional. Second, it is proposed that consultation requirements should be relaxed in those cases where a Board of Inquiry is not appointed. In such cases it is proposed that the public should be given “adequate time and opportunity to comment on the proposed subject matter” of the National Policy Statement. This is similar to the process outlined in s 44 of the RMA in relation to National Environmental Standards. Third, provision is to be made for National Policy Statements to be implemented without the need for Policy Statements and Plans prepared by Regional Councils and Territorial Authorities to be changed in accordance with the provisions found in the First Schedule to the RMA. For example, the package of RMA improvements states:

To implement national policy statements more quickly, it will be possible to specify that certain provisions can be included in council planning documents without the need for normal local planning processes.35

This proposal is a significant departure from the cumbersome procedure currently found in s 55 of the RMA which requires Local Authorities to change the Policy Statement or Plan affected by the National Policy Statement in order to give legal effect to the National Policy Statement within the administrative area covered by the Policy Statement or Plan.

As noted above, the Government also intends to make better use of National Environmental Standards. This aspect of the package of RMA improvements will require commitment from the Government, rather than legislative changes. It is however clear from the information sheets released by the MfE in September

  1. Ministry for the Environment, Improving the RMA – Improving the Expression of the National Interest (September 2004) 1.
  2. Ibid.

2004 that National Environmental Standards are likely to play an important role in promoting consistency between Local Authorities. For example:

National environmental standards are intended to increase consistency across the country. In some cases they will be able to apply absolutely, or to require councils to show that it is necessary if they want to set standards that are stricter. Some possible topics for national environmental standards are water issues, network utilities, noise and further air quality standards and septic tank standards.36

In particular, National Environmental Standards may also be useful in preventing the re-litigation of issues both at the primary hearing before the Local Authority and on appeal before the Environment Court.

When responding to the scope document, Local Government New Zealand made the following point in support of its argument that achieving the right balance of national and local interests did not require legislative amendment:

The Act already contains a method that the Government can use to promote a balancing of national interests at the project level – the submission. As a general comment, the Project Team believes that if government has a position to promote it should make a submission and turn up to hearings and make that position known.37

The report produced by Local Government New Zealand in response to the scope document has been influential and has played a critical role in the development of the Government’s programme for improving the RMA.38 As a result, the Government has announced an intention to become more involved in making submissions about Regional and District Plans and resource consent applications when matters of national significance arise. The MfE has indicated that:

This will occur through central government representatives discussing process requirements with applicants and relevant councils, and using a set of criteria to determine whether government intervention or input is justified.39

  1. Ministry for the Environment, supra note 34 at 1.
  2. Local Government New Zealand, supra note 28 at 9.
  3. Ministry for the Environment, supra note 5 at 1.
  4. Ministry for the Environment, supra note 34 at 1.
The Government proposes to modify the Minister’s call-in powers under s 140 of the RMA that enable him or her to determine resource consent applications (following the appointment of a Board of Inquiry to hear submissions and to report to the Minister with a recommendation as to how the application should be decided) by providing a more “flexible [menu of] options” for use in appropriate circumstances.40 The options include:

... central government providing information about the national interest through a submission on a proposal, funding an independent co-ordinator to ensure processes are run effectively, directing that an application be heard jointly by the councils if more than one must give consent, or appointing a person to the hearing panel.41

In addition, the call-in power under s140 of the RMA will be extended to include private plan changes, designations and heritage orders. To ensure that the Board of Inquiry appointed to hear a particular matter will have the appropriate skills to process the application, the Government proposes to establish a “standing body of commissioners” from amongst whom members of the Board of Inquiry will be selected. Beyond that, it is also proposed that rights of appeal from the Minister’s decision should be limited to points of law only.42

The MfE considers that these changes will provide a more open and flexible process to determine whether decisions should be made locally “or whether some form of input from central government is needed”. It is also anticipated that these changes will result in the call-in power being used more frequently than in the past. Overall, the MfE has indicated that:

Decision makers, applicants and communities will benefit from having more suitable processes and improved information for applications that raise issues of national importance.43

Other commentators are less convinced about the practical impact of these proposals. Hassan, for example, has stated that:

A question which must be asked, as the details of the call-in proposals are refined, is why this option has sat largely unused to date? One cause of that, perhaps, has been the potential for call-in to become political. As long as the Minister

  1. Ibid.
  2. Ibid.
  3. Ibid at 2.
  4. Ibid.

stands as gatekeeper, Ministers can become embroiled in defending whether or not to call-in a project, and this can constrain the effectiveness of the call-in option. ... The menu of options proposed ... would also add a complexity to the process which might in practice hinder further recourse to call-in.44

However, in the speech given by the Associate Minister, in the main centres in September 2004, he clarified the position and confirmed that the report of the Board of Inquiry will become final and that “the Minister will not have a say at the end of it all”.45 As a result the process may no longer become political.

Beyond that, a further concern about the modified call-in process is the repeal of the right of appeal against the decision to the Environment Court. First, due to the need to ensure that a reasoned and robust decision will be produced by the decision-maker(s). Second, because it removes the supervisory jurisdiction of the Court from possibly the most important cases decided under the RMA. There would, however, be no cause for concern if the model adopted for the Waitaki Catchment Water Allocation Board were to be used when setting up a Board of Inquiry in the future. In that case, membership of the Board comprises of an Environment Judge together with an Environment Commissioner and three other members with a local background in resource management.


Concerns about the consent decision-making process highlighted by the review included:

... [the] lack of consistency between councils; delays and costs; lack of certainty for applicants; abuse of the process for personal gain, trade competition, or other vexatious reasons; and lack of clarity and consistency about consultation requirements.46

Subsequently, proposals to improve the RMA have focused on “local” consent decision-making with a strong emphasis on avoiding duplication. For example:

  1. Hassan, “Reforming the RMA: are we there yet?” Counsel (27 September 2004) at 6.
  2. Hon David Benson-Pope, Improving the RMA (27 September 2004) at 5. See http:// www.beehive.govt/ViewDocument.cfm?DocumentID=21105.
  3. Ministry for the Environment, supra note 1 at p2.

Giving resource consent authorities power to take a more active and direct role in conducting the hearing, including taking an inquisitorial approach and sufficiently testing evidence to avoid duplication of processes in any appeal.47

These matters will be discussed in the following paragraphs, focusing in turn on improving consent decision-making at Local Authority level and improving consent decision-making at the Environment Court.

4.1 Consistency between Councils

Lack of consistency between Local Authorities can be an issue where resource consents for a project are required from more than one Local Authority. This can arise because District Plans impose different requirements on applicants in relation to the same activity, or because different decisions are made by Local Authorities in respect of the same project.

The RMA provides Local Authorities with a large measure of discretion in relation to the content of Policy Statements and Plans. Accordingly, it will be difficult to provide greater consistency in relation to matters such as defining particular activities as permitted or controlled activities on a uniform basis, either within a particular region or nationally, absent national policy guidance.

More consistent decision-making by Councils could, however, be achieved through greater use of Independent Commissioners. For example, making increased use of Independent Commissioners was previously considered in the Report of the Minister for the Environment’s Reference Group prior to enactment of the RMAA 2003. The report noted that:

The Group considers that there would be major benefits from improving the independence and quality of resource consent decision making at the primary level by shifting the function from Councillors to qualified Commissioners. These Commissioners would be appointed by the Minister on the basis of their qualifications, experience and expertise. ... From a procedural and practice viewpoint it should over time, improve the quality of primary decisions while reducing overall costs for all parties, including the need for appeals.48

This proposal did not meet with approval of the Select Committee when the RMAA 2003 was reported back to the House of Representatives on 28 April 2003. The commentary on the Bill noted:

  1. Ministry for the Environment, supra note 5 at 2.
  2. Report of the Minister for the Environment’s Reference Group (September 1998) at 83-84.

Government and Green members do not believe that mandatory use of hearing commissioners is desirable, for a number of reasons. We were advised that there is little evidence that commissioners would provide higher quality decision- making than councilors. The increased formality of commissioner hearings would discourage public participation – this was specifically seen as a concern by tangata whenua. Our concern is that the use of hearing commissioners could remove local input on decisions that have environmental impacts. One of the founding principles of the Act is that environmental decisions are best made by those who will be closely affected by the outcome of those decisions. We consider this to be a sound principle and we are concerned that the use of hearing commissioners may affect this.49

Notwithstanding these comments, concern about the quality of local decision- making has remained. For example, the comprehensive package of RMA improvements included specific proposals for improving consent decision- making at Local Authority level. The information sheet records that:

Many of the suggestions for improvements to the hearing process indicate that some council hearings panel members lack qualifications, experience and an appropriate level of detachment.

As a result, the accreditation of Local Authority decision-makers has been proposed. The information sheet notes that:

This training will include the RMA hearing processes and procedural skills. Once this is law, it is expected that chairs will be required to become accredited within 12 months and the majority of the hearing panel within 24 months.

Whilst provision of training on RMA hearing processes and procedural skills will improve the quality of decision-making at Local Authority level, resource management is a complex and technical subject and it is unclear whether any technical training will be provided on specific issues (e.g. noise), so as to assist decision-makers in assessing the weight that should be accorded to evidence given during the hearing. This could be done either as part of the accreditation process or subsequently by continuing professional development.

There are also strong parallels between the proposal for training and accreditation of Local Authority decision-makers and the accreditation process for arbitrators and mediators. However, absent any proposals for continuing

  1. Resource Management Amendment Bill, as reported from the Local Government and Environment Committee, Commentary (April 2003) at 35.

professional development after accreditation, annual practicing certificates or warrants, or a specific level of experience before decision-makers can be included on an advanced panel of accredited decision-makers, it is unclear whether accreditation will result in more appropriately qualified and experienced decision- makers. Indeed, it is submitted that a key requirement for ensuring quality of outcome is the ability to ensure that the skill level of decision-makers is appropriately matched with the significance and complexity of the decision they will be required to make in a given case. As a result it is uncertain whether accreditation by itself will improve the quality of Local Authority decision- making.

Additionally, whilst local input into the decision-making process is valuable, no consideration appears to have been given to achieving an appropriate balance on hearings panels between local input and qualified Independent Commissioners as a matter of course. This approach could significantly enhance the competence and reliability of Local Authority decision-making.

4.2 Inquisitorial-Style Council Process

Indeed, the competence and reliability of Local Authority hearings panels will be critical to the success of the Government’s proposals for changing the RMA. For example, the proposal for accreditation of Local Authority decision-makers appears to lay the foundation for the introduction of an “inquisitorial style council process” directed to inquiring into and testing the evidence given at the hearing. Specifically, it is proposed that:

The new style of hearing would see councils take a more active and direct role in conducting hearings for resource management decisions. The chairperson would be required to maintain order and direct the timing of when evidence is heard and the detail of that evidence.50

No detail is given as to how panel members will undertake the task of testing evidence given at the hearing. One possibility is that the new style of hearing would see more questions asked by decision-makers as the evidence is given. Whilst this will be assisted by advance circulation of written statements of evidence prepared by expert witnesses, it is submitted that Local Authority decision-makers will (as mentioned above) need to develop an appropriate understanding of technical issues to ensure that any questions asked by members

  1. Ministry for the Environment, Improving the RMA – Improving Consent Decision Making at the Council Level (September 2004) at 1.

of the hearings panel are focused and sufficiently searching, but without unduly prolonging the duration of the hearing.

These changes are supported by the proposal to make attendance at pre- hearing meetings mandatory. It is anticipated that this particular change will:

... ensure councils have more options and stronger powers at an earlier stage to get the parties together to refine or resolve their disputes, and stronger powers to control hearings.51

However, the increased emphasis given to dispute resolution may require significant investment by Local Authorities to ensure that staff responsible for convening pre-hearing meetings are accredited mediators, as there is likely to be a direct link between the success of the pre-hearing meeting in refining issues or resolving disputes and the skill and training of the staff involved.

4.3 Delays and Costs

Under the RMA any person can make an application for resource consent to the relevant Local Authority. Assuming that the application is complete and that no further information is required, the Local Authority will then be under a statutory duty to process the application in accordance with the time periods specified in the RMA either on a notified or non-notified basis (i.e. within 70 or 20 working days respectively).

However, simple analysis of the time periods specified in the RMA does not assist in defining what constitutes “delay”. For example, delay can arise where the time periods specified in the RMA are not complied with by a Local Authority when processing resource consent applications. Alternatively, delay could be attributed to the “inconvenience” of having to comply with statutory requirements. Whilst it is healthy to engage in debate about the type of environmental controls that should be adopted in New Zealand, it is submitted that the debate about such issues is very different from asking questions about performance within the current regulatory environment. The former exercise is directed to the type of environmental controls that could be adopted to replace the RMA, whereas the latter exercise is directed to monitoring performance under the RMA with a view to achieving improved practice. It appears from the scope document and the comprehensive package of proposals that the review will focus on the latter question, rather than embarking upon a more wide ranging strategic debate or seeking to challenge the legitimacy of regulation under the RMA. As a result,

  1. Ibid, at 2.

statistics will be an important component of the review process and will help to put concerns about “delays” in context.

The most recent statistics available from the MfE show that Local Authority performance in processing resource consents has improved. For example, there has been increase in the number of notified consents processed within the time periods specified in the RMA from 63% in 1999/2000 to 69% in 2001/2002. The Resource Management Act: Two-yearly Survey of Local Authorities 2001/ 2002 also reveals that overall “82% of all resource consents were processed within statutory time limits in 2001/2002”.52

Although there are no comparative statistics available from a range of OECD countries, as in the study of major roading projects referred to below, comparison with the UK shows that only 65% of planning applications were processed within statutory time limits in the UK in 2001/2002.53 However, the target set by the UK Office of the Deputy Prime Minister for the speed of decision-making was that 80% of applications should be decided within statutory time limits.54 This reflects positively on the position achieved in New Zealand. However, notwithstanding the relative success displayed by improvements in Local Authority resource consent processing the Report of the Minister for the Environment’s Reference Group (September 1998) noted that there remained “anecdotal evidence that notified applications take too long to process and that the process is very costly”.55 For example, Grant noted in a report prepared for the UK Department of the Environment Transport and the Regions, Environmental Court Project: Final Report that:

Criticism of local authority performance [in New Zealand] is endemic, and informs much of the critique that the Minister commissioned in 1998 from Owen McShane. Yet even that review supports the conclusion that local authority failure was far from universal: the major problems as seen by McShane, ... lay with a handful of local authorities, with particular political agendas, with overbearing senior staff and councilors who allegedly failed on a regular basis to disclose conflicts of interest.56

Similar concerns have again been identified in the scope document in relation to the current review as noted above. It is not surprising, therefore, that the most recent statistics also show that performance is uneven both between Local

  1. Ministry for the Environment, Resource Management Act: Two-yearly Survey of Local Authorities 2001/2002 (June 2003) at 6.
  2. Office of the Deputy Prime Minister, Development Control Statistics: England 2001/02 at 6.
  3. Ibid, at 8.
  4. Report of the Minister for the Environment’s Reference Group (September 1998) at 49.
  5. Grant M Environmental Court Project Final Report (2000) at para 4.13.3.

Authorities in respect of the same type of consent and within Local Authorities in respect of different types of resource consent. For example, in the Waikato region Hamilton City Council processed 70% of notified applications for land use consent within time, whereas Waikato District Council processed 100% of notified applications for land use consent within time. Similarly, when looking at regional councils, Environment Canterbury processed 55% of notified water permit applications within time, but processed only 25% of notified discharge permit applications within time.57

As a result there is a need for further research in relation to the reasons why some Local Authorities perform better than others in processing resource consent applications within the statutory time periods, and why other Local Authorities are markedly better at processing certain types of resource consents than others. Without further enquiry it will be difficult to determine the reasons for such differences in performance, or to assess what needs to be done to improve matters in terms of statutory reform or preparation of national policy guidance or increased funding.

Similarly, without further enquiry into the cause of delays in resource consent processing it will be difficult, on an empirical basis, to consider whether the time periods specified in the RMA should be reduced to provide further incentives to Local Authorities to process resource consent applications more quickly. It is, however, important to inject a degree of caution into the debate about whether shorter time periods should be specified in the RMA for processing resource consent applications, to ensure that environmental quality is not sacrificed as a result of any statutory amendment. There will inevitably be a threshold below which the desire for greater efficiency, in terms of the time periods specified for processing resource consents, would be likely to have an adverse effect on environmental outcomes.

4.4 Major Projects

Particular concerns have been expressed in relation to major transport projects, which resulted in publication by the MfE of the report on Streamlining RMA Approvals for Land Transport Projects – A study of delays in major roading projects. The report found that the time taken for major transport projects in New Zealand is affected by a number of factors. These include the impact of the project on private property, the number of resource consents required for the project, the number of local authorities involved in the process and whether any

  1. Ministry for the Environment, supra note 52 at 49-50.

appeals are lodged with the Environment Court against Local Authority decisions. For example, the report noted that:

For large projects the causes of delay are complex and cannot fairly be attributed to any single factor. Any major road project will invariably affect a large number of individual property owners and a wide range of community and environmental values. In rural situations there are often large-scale effects on natural values and landscapes, while urban concerns are more often about impacts on the value and enjoyment of private property. As a result, property owners will often have a strong interest in delaying a project.58

As noted by Dormer the number of consents required in relation to a major transport project will in practice be determined by the scale of the project. This in turn will determine the number of Local Authorities involved in the consent process. The scale of a project will not, however, always respect the artificial boundaries that determine the territorial jurisdiction of Local Authorities. As a result some projects will straddle administrative boundaries and involve more than one Territorial Authority.

The position is further complicated by the type of authorisations provided under the RMA in relation to infrastructure projects. For example, although land-use consent for a project (when required under the terms of the District Plan) could be sought from the relevant Territorial Authority, the need to do so will normally be avoided by seeking a designation under s 168 of the RMA.

Whilst the RMA enables a single application to be made to the Regional Council for any coastal permits, water permits or discharge permits required in connection with the project, the procedures under the RMA dictate that separate applications must be lodged with the relevant Territorial Authorities for any designations required in relation to the project. Added to the complexity of these administrative arrangements, is the possibility that different standards may be imposed in relation to the project by the statutory planning instruments (i.e. District and Regional Plans) prepared by the various Local Authorities involved.

The report on major roading projects noted that structural reform of local government could resolve these problems. For example:

Local government reform could reduce the number of local government units in New Zealand. This might include adopting the concept of unitary authorities, or creating a single National Environmental Protection Agency to manage all RMA approvals.59

  1. Ministry for the Environment, Streamlining RMA Approvals for Land Transport Projects - A Study of Delays in Major Roading Projects (2003) at 15.
  2. Ibid at 43.

Another solution that was not canvassed in the report could include amending Part VIII of the RMA to transfer jurisdiction for processing designations from Territorial Authorities to Regional Councils. This would enable a single application to be made to the relevant Regional Council for the designation and all resource consents required in connection with a project, whilst at national level for projects which straddle regional boundaries the number of councils would be reduced and the joint hearing procedures in the RMA could be used to provide a single primary hearing and decision.

The most recent New Zealand statistics also show that 190 designations were processed by Territorial Authorities in 2001/2002, but no statistics are given on the percentage of designations processed within statutory time limits prescribed in the RMA. However, because most major projects will also require resource consent from the Regional Council, the statistics for processing consents by Regional Council’s may provide a useful guide to whether applications for major projects are processed within statutory time limits. The statistics show that 86% of coastal permits, 63% of water permits, and 75% of discharge permits were processed within statutory time limits in 2001/2002.60 What emerges from this analysis is that projects requiring water permits are likely to take longer to process than the national average.

The reason why applications for water permits should take longer to process is unclear. However, the demise of Project Aqua in May 2004 where Meridian Energy sought designations and resource consents for the construction of a series of canals and other works in the Waitaki River catchment in relation to an energy project, indicates that the reason could relate to the absence of Regional Water Plans in certain parts of New Zealand and the need for legislative amendment of the RMA to “enable the merits of competing water uses ... to be considered and to establish a framework for the allocation of water that will allow for sustainable development”.61

Equally, the reason why certain applications for water permits take longer than average to process could simply be symptomatic of the complexity involved in assessing applications for the use of water. For example, the Development Control Statistics: England 2001/02, published by the UK Office of the Deputy Prime Minister, notes that:

Planning applications vary in complexity and authorities may have different mixes of simple and more complicated applications. The speed with which applications are decided varies according to the type of development ... Applications for larger scale ... developments generally took longest to decide.62

  1. Ministry for the Environment, supra note 52 at 20.
  2. Resource Management (Waitaki Catchment) Amendment Bill, Explanatory note.
  3. Office of the Deputy Prime Minister, supra note 53 at 9.

4.5 Clarity and Certainty for Applicants

Lack of clarity and certainty for applicants can arise as a result of requests for further information under s 92 of the RMA. It is therefore proposed that:

Councils will be required to give written reasons for further information requests to avoid allegations that such requests are used only to stall the process.63

To avoid stalemate, when applicants consider a further information request to be unjustified it is proposed that they should “be able to refuse to provide information and to request council to proceed on the basis of information already provided”.64 There is, however, a risk in this approach that some Local Authorities may be swayed by arguments from applicants to grant resource consent for activities this will not achieve good environmental outcomes in line with the statutory purpose of the RMA. As a result this particular amendment may not comply with the principles on which the review is founded, namely:

Achieving good environmental outcomes in line with the purpose of the Act.65

To overcome this problem it may be appropriate to process applications which do not comply with a further information request as non-complying activities. Alternatively, certainty could be provided by amending the RMA to provide that the power to require further information to be provided under s 92(1) should only be exercised in accordance with a rule in the relevant Plan, or in cases where the Plan is silent about the matter the Local Authority’s power to request further information should be limited to commissioning a peer review report under s 92(2) of the RMA.

4.6 Abuse of Process

Concerns about abuse of process for personal gain, trade competition, or other vexatious reasons primarily arise as a result of the provision made in the RMA for public notification of resource consent applications. For example, where an application is notified, a hearing must be held where a person who made a submission in respect of the application has requested to be heard and has not subsequently withdrawn that request. Additionally, there is no requirement for standing to be demonstrated under the RMA, any person can therefore make a

  1. Ministry for the Environment, supra note 50 at 1.
  2. Ibid.
  3. Ministry for the Environment, supra note 5 at 1.

submission about a notified resource consent application without disclosing the nature of their interest (if any) in the matter.

Whilst it may be tempting to argue for standing to be demonstrated as the basis for making a valid submission (particularly where projects are delayed as a result of vexatious or frivolous objections), it is submitted that limiting standing may simply divert resources into arguments before the High Court about standing as a result of judicial review actions brought by disappointed “submitters”. As a result speed of decision-making will be important in reducing the opportunity for submitters to abuse the hearing process. For example, Legomsky observed that the disposal rate of cases is “crucial” when dealing with “frivolous actions [lodged] for purposes of delay”.66 Speedy decision-making on the other hand was found to “discourage frivolous actions”. Processing resource consent applications in accordance with the statutory time periods prescribed in the RMA will therefore be a deterrent against abuse of process, and it will be critical for Local Authorities to be properly resourced to ensure that these obligations are met.

It will be noted from the statistics quoted above that delay currently occurs in relation to the processing of approximately 31% of publicly notified resource consent applications, and it is likely that the proposed changes for improving consent decision-making will increase Local Authority workloads as a result of the requirement for mandatory pre-hearing meetings and the added emphasis place on the primary hearing. Absent specific measures designed to improve practice and build capacity the scope for submitters to abuse the hearing process at Local Authority level for personal gain, trade competition, or other vexatious reasons, may be increased.


Since 1991, the Environment Court has come under pressure from an increased workload and has been subject to criticism about delays in the processing of appeals. The number of cases waiting for a hearing rose from 500 in 1993/94 to a peak of 3,000 in 2000/01. The increase in workload arose primarily from appeals lodged against District and Regional Plans prepared under the RMA, which accounted for 51% of the Court’s workload. Increasing dissatisfaction with the speed of decision-making by the Court during this period was not surprising, given the historic under-funding of the Court by previous Governments.

  1. Legomsky S, Specialized Justice – Courts, Administrative Tribunals, and a Cross-National Theory of Specialization (1990) at 31.

Subsequently, a funding package of $1.2 million per year for a period of four years announced in May 2002 has increased the capability of the Court by enabling the appointment of additional judges and the provision of enhanced administrative support. However, notwithstanding these initiatives and the consequent reduction in the number of cases waiting for a hearing, criticism of the decision-making process under the RMA continues.

Release of the scope document in May 2004 was followed by intense speculation in the media as to the detail of improvements that should be made to the RMA, with both the Labour and National Parties raising the issue of de novo appeals to the Environment Court and questioning whether the scope of the appeal process should be changed.

Specific concerns have focused on transport and energy projects. For example, Improving the RMA - A Progress Report on Achievements noted that the demise of Project Aqua had led to claims that the RMA was a disincentive to investment in large projects.67 Concern about delays in consent-processing in relation to major projects may, however, be overstated as Fixing the Resource Management Act noted that such projects are “the exception rather than the norm with around 3-6 projects nationally per year”.68

5.1 De Novo Appeals

As anticipated the Government’s proposals for changes to the RMA focus on de novo appeals. It is proposed that the Environment Court will:

... have regard to the council’s decision and conduct a hearing that focuses on matters in contention. This will replace the presumption in favour of a fresh (de novo) hearing which doesn’t refer to the council’s decision.69

Following on from proposed changes in relation to decision-making at Local Authority level, these proposals place further emphasis on the role of the primary hearing.

It is, however, unclear how exactly the new style “rehearing” before the Court will work in practice. From the guidelines to determine when a de novo hearing may be required, it appears that the ability of the Local Authority hearings panel to adjudicate properly on matters of fact and law and to produce a decision

  1. Ministry for the Environment, Improving the RMA A Progress Report on Achievements (May 2004) 2.
  2. Ministry for the Environment, Fixing the Resource Management Act (October 2003) 2.
  3. Ministry for the Environment, Improving the RMA – Improving Decision Making at the Environment Court (September 2004) at 1.

that can safely be relied upon will be the focus of the Court’s discretion. As a result de novo hearings will be limited to circumstances where:

When examining these criteria more closely it becomes apparent that there will be a transitional period while members of Local Authority hearings panels are accredited. During this 24 month period it is likely that de novo hearings will remain the norm, as there will be no guarantee that members of a specific hearings panel will have the skills to sufficiently test the evidence given at the hearing.

Beyond that, it becomes less certain in the context of resource consent and designation appeals as to when a de novo approach would be adopted by the Court. However, it is possible that de novo appeals will continue to be preferred in a number of situations. For example, where the Local Authority decision was not based on appropriately qualified expert evidence, or where the complexity of the matters to be determined required scrutiny by qualified Independent Commissioners to ensure that the “evidence relied upon was [sufficiently] tested”.71

More importantly, the proposed changes to the manner in which appeals are to be heard by the Court may have a subtle impact upon the nature of the appeal rights provided under the RMA. In particular, the requirement to “have specific regard to the consent authority’s decision as a starting point” could provide an in-built presumption in favour of the Local Authority decision being upheld on appeal unless new circumstances or further evidence indicate that matters should be determined otherwise. This approach would be radically different from the current position under the RMA that enables the Court to arrive at a different decision on the merits of a particular application based on its own value judgment. In other respects the proposed changes will enhance the supervisory jurisdiction of the Court in relation to the preparation of Policy Statements and Plans and the determination of procedural matters, such as the notification of resource consents. However, the influence of judicial discretion over policy matters is to be reduced with added emphasis being placed on resolving such

matters at Local Authority level.

At this juncture it should be noted that there is a fallacy in the debate regarding the nature of de novo appeals to the Environment Court. For example, the Law Commission noted that:

  1. Ibid.
  2. Ibid.

Because the court’s workload is largely generated by decisions of local authorities the court considers itself to be essentially an appellate court. Nevertheless, a hearing before the court is a ‘de novo’ hearing (a full hearing of the entire matter), and the court considers afresh all matters of fact and law, unless the parties mutually agree to some limiting. It is the first point in the RMA process where these issues are tackled in an adversarial court setting with cross-examination taking place as a matter of course.72

However, the nature of appeal rights to the Court needs to be put in context. With the exception of appeals made by consent holders against resource consent conditions, the right of appeal under s 120 of the RMA arises as a consequence of the notification and hearing of a resource consent application by a Local Authority. Typically, although a number of persons may make submissions opposing the application, not all submitters will be motivated to lodge an appeal with the Court or to become a party to an appeal under s 274 of the RMA. Similarly, although the parties are free to re-run their entire case again on appeal before the Court, not all will choose to do so. As a result cases before the Court will usually be limited in their scope by a smaller group of parties, and by the grounds of appeal or evidence circulated by the parties. The introduction of Case Management and the added emphasis given to mediation should also result in the scope of any issues to be heard by the Court, being refined or limited.

Additionally, the decision in Westfield (New Zealand) Ltd v Hamilton City Council73 demonstrates that the Court is entitled to rely on evidence given at the Local Authority hearing where matters are not challenged by the parties. It was alleged that the Environment Court had failed to conduct its own inquiry under section 32 of the RMA (which imposes a duty to consider alternatives) before confirming rules in the proposed district plan which provided for retail shopping malls in the commercial services and industrial zones as controlled activities. Westfield argued that “unrestricted retail activity” would give rise to adverse traffic effects and that “more restrictive” rules providing for retail activity as a discretionary activity should have been adopted. To determine this issue the High Court was required to consider the nature of de novo hearings. It found that:

It is ... true that hearings in the Environment Court are rehearings conducted de novo. However the Court does not have to ignore the fact that Council officers and the Council had already covered the same ground. The evidence the Council broadly conveyed to the Court regarding the Council’s own investigations and

  1. Law Commission, Delivering Justice for All (2004) at 218.
  2. High Court, Hamilton, CIV2003 485 000953, 54, & 56, 17 March 2004, Justice Fisher.

conclusions with respect to a proposed plan itself represents fresh evidence before the Environment Court. The Court is entitled to rely upon that evidence in the absence of specific issues to which their attention is drawn. The Court is not expected to conduct the type of broad-ranging inquiry that would have been appropriate if the whole exercise were approached afresh.74

The decision of the High Court in Westfield provides interesting and timely commentary on the nature of de novo hearings in the Environment Court in the context of the current RMA review.

Beyond this, it is also important to put the Court process in context. As noted above, a hearing will only be required where the appeal has not been settled or withdrawn as a result of discussion between the parties. As a result the Law Commission noted that:

The processes below the Environment Court create a very desirable and effective sifting mechanism with a high disposal rate. But our concern is for those cases that are not resolved by these preliminary processes, and proceed to a hearing in the Environment Court. Those cases are entitled to due process, including a right of appeal on fact and law. Curtailing proper rights in the interests of efficiency does not deliver justice.75

It is also the case that most jurisdictions provide for a merit-based appeal from the preliminary decision-maker in relation to environmental matters. For example, after studying “environmental decision-making in 7 jurisdictions” Grant noted that:

It is a common feature of most legal systems that regulatory and administrative matters respecting the environment are assigned in the first instance to administrative agencies and local authorities, and that the adjudicative function comes into play at a higher level. ... an unsuccessful applicant may have a right of appeal to such a body; or a third party may have a right of objection. In these cases, it is common for the court or tribunal to have full jurisdiction to redetermine the matter at stake, and not simply to entertain an appeal on law.76

Here it should also be noted that the Court plays an important role in exercising “a supervisory [jurisdiction]”, particularly in relation to delivering “consistency between councils” through the power “to make findings of fact that are binding

  1. Ibid, para 40.
  2. Law Commission, supra note 72 at 221.
  3. Grant M, note supra 56, in Executive Summary.

in the cases before it” and establish a body of case law and precedent to guide Local Authority decision-making.77

5.2 Case Management

The progress made by the Environment Court in disposing of appeals more speedily is likely to be further enhanced by Case Management. In particular, the introduction of Case Management should remove the ability of parties to use the appeal process as a mechanism to delay development indefinitely. For example, “standard track cases” should be heard before the Court within 6 months of the appeal being lodged. Indeed, the Principal Environment Judge has stated that:

... parties will need to seek to settle or mediate their differences at an early stage following filing of a standard case appeal. Failing an agreed outcome acceptable to the Court, the parties will need to prepare themselves expeditiously for hearing.78

More complex cases (e.g. appeals in relation to Policy Statements and Plans, or major development proposals) “will be managed on an individual programme set by the managing judge”.79

The practical effect of these procedural changes should result in Court sponsored mediation, or a timetable being fixed for preparation of evidence after 3 months if the appeal is not resolved. They should therefore remove the opportunity for parties to “abuse ... the process for personal gain, trade competition, or other vexatious reasons”, certainly at Environment Court level.80

5.3 Court-Mandated Mediation

However, one aspect of the Court’s jurisdiction that may benefit from further legislative attention is that of appeals in relation to Policy Statements and Plans. For example, the Law Commission noted that:

  1. Ibid.
  2. Ministry for the Environment, Improving the RMA – A Progress Report on Achievements

(May 2004) at 2.

  1. Ibid.
  2. Ministry for the Environment, supra note 1 at 2.

As at December 2003, 51 percent of the cases on the court’s files were plan references, 36 percent were resource consents and 13 percent were other matters including designations, declaratory judgments and road stopping and other non- RMA matters, arising from legislation such as the Local Government Act 1974, the Public Works Act 1981, and the Historic Places Act 1993. ... Around 80 percent of references and 70 percent of resource consent appeals are settled prior to hearing. Since the RMA came into effect, references represent roughly 33 percent of the cases dealt with by the court.81

Given the high volume of appeal work in relation to Policy Statements and Plans and the cyclical nature of policy development under the RMA which calls for review of Policy Statements and Plans every 10 years, there is a need to ensure that the number of appeals lodged in relation to “second generation” Policy Statements and Plans does not knock the Court off track in terms of the significant progress made since 2001 in reducing the number of cases waiting for a hearing. The fact that a higher percentage of appeals in relation to Policy Statements and Plans are resolved by consent also indicates that such appeals should be treated differently by the Court in terms of Case Management. Here it is suggested that s 268 of the RMA could be amended to provide for “Court- Mandated Mediation” in respect of appeals in relation to Policy Statements and Plans.

Whilst the Law Commission noted concerns raised by commentators in relation to mandatory mediation such as “unwarranted interference with the parties’ autonomy to choose how they wish to progress their case”, it concluded that:

... we consider that careful design and management of a court-mandated mediation rule will minimize the hazards. In particular, we consider it is possible to create a system in which party autonomy can be accommodated. We have concluded that the benefits offered in terms of the speedier resolution of disputes, greater choice and satisfaction for many litigants, and savings to the court system warrant the introduction of a court-mandated mediation rule.82

Further, to avoid pressure on the Court as a result of the use of Environment Commissioners as mediators in relation to appeals under the RMA, provision could also be made for the appointment by the Court of a suitably qualified and experienced mediator from the panels of accredited mediators maintained by AMINZ or LEADR to act in respect of a particular appeal or group of related appeals.

  1. Law Commission, supra note 72, see note 343 at 218.
  2. Ibid at 93.

5.4 Deciding Matters on Paper

Another aspect of the Environment Court’s jurisdiction that could benefit from further legislative attention is the Court’s ability to determine matters on paper without a hearing. For example, Grant noted that:

There is no equivalent to the British system of written representations, and hearings are the norm although occasionally the Court is able to decide matters on paper. One instance is in relation to the award and settlement of costs. This follows an invitation to the parties to make written submissions, and in this event the matter is determined on the basis of the written submissions and there is no hearing.83

Grant also noted the “decline” in the use of hearings in the UK to determine planning appeals and the “switch” to written representations as a result of both encouragement from government and changes in the attitude of parties. In particular, he noted that:

The delay and expense of [hearings] has itself applied pressure to parties to accept the swifter and cheaper method of written representations, so that today over 80% of all cases are now handled by this method. In place of a formal [hearing], there is consideration by an inspector of the documents submitted by the parties to the dispute, together with a site visit (usually accompanied by representatives of the ... parties) to allow the inspector to familiarise himself with the physical features of the site. This is followed by a decision ... in the usual way.84

A similar procedure is available in New South Wales. In cases where the consent of the parties has been obtained “the Court may give its decision without a hearing, but on the basis of the parties’ written representations”.85 The procedure, however, has not been widely used and “remains deeply unpopular, and is used in less than one per cent of cases”.86

Whether such a procedure would be more widely accepted in New Zealand is difficult to assess without the benefit of a pilot study. It is therefore submitted that Part XI of the RMA should be amended to provide appellants with the option of proceeding by written representations, considered by a Judge or

  1. Grant M, supra note 56 at para 4.10.5.
  2. Ibid at para
  3. Ibid at para 5.9.7.
  4. Ibid.

Commissioner, as an alternative to requiring a hearing before the Court. This may prove to be a viable option for those parties concerned about “delays and costs”.

5.5 How Will the Changes Improve the RMA?

It is, however, submitted that the proposals for improving decision-making in the Environment Court are based on a fundamental misconception about how such hearings are conducted in practice, and how the Court views evidence about Local Authority decisions.

More importantly, whilst the proposals for improving the RMA acknowledge that “there has been a substantial reduction in the backlog of cases awaiting a hearing in the Environment Court from over 3,000 in 2001 to around 1,400 in 2004”,87 no account has, in reality, been taken of more recent improvements in Court procedure due to their recent vintage.

Firstly, the use of digital audio technology has reduced hearing time by 30- 40%. Secondly, the introduction of Case Management in April 2004 should result in the majority of cases being heard within 6 months of the appeal being lodged. Thirdly, the increased provision made in the RMAA 2003 for Environment Commissioners “to sit alone to hear and decide cases” also has the potential to increase the Court’s ability to dispose of cases expeditiously still further. Fourthly, the announcement of changes to Civil Court Fees on 1 June 2004 may provide a disincentive for vexatious and frivolous objectors to pursue appeals or become parties to proceedings before the Court. For example, the filing fee is to be increased to $245 for both appellants and section 274 parties, and appellants will be required to pay a hearing fee of $440 per day for the duration of the hearing. Finally, the information sheet also noted that the Court proposed to issue “practice notes” on the use of Environment Commissioners sitting alone and when alternative dispute resolution processes (mediation and arbitration) are to be used.

When viewed against the background of these improvements, the proposals in the current review that there should be a move away from de novo hearings by the Environment Court are not warranted. Such a move would also reverse the trend to make Local Authority decisions more transparent and susceptible to review by the courts established during the twentieth century.

It also remains unclear what, if any, monitoring is proposed in terms of assessing the impact of the new systems and procedures introduced by the Court since August 2003. In the absence of empirical evidence about the success or

  1. Ministry for the Environment, supra note 69 at 1.

failure of these measures it will be difficult to determine with precision what, if any, legislative changes are required to improve decision-making in the Court. Beyond that, it appears that the proposed changes to decision-making at the Environment Court could simply result in perceived problems being transferred

elsewhere. For example, the package of RMA improvements notes that:

The proposed change will sharpen attention at the council hearing process and avoid duplication. As a result, the cost of appeals may decrease with fewer hearing days needed. However, the cost of the first hearing may increase if more complex.88

As a result a more sensible option for the Government at this point in time would be to refrain from legislative change in relation to the hearing process before the Environment Court, at least in the interim whilst changes to decision- making at Local Authority level are implemented and monitoring takes place on the take up of Environment Commissioner only hearings and the impact of new Practice Notes. Indeed, the Cabinet paper on the review notes that:

... there will need to be a transitional lead in time to ensure sufficiently improved local authority processes in the first instance.89

The paper also notes that the Court already “has most of the powers it requires to control its proceedings”90 and identifies the problem which the proposed changes are intended to remedy as being that:

The parties frequently ‘hold back’ matters and then enlarge the scope of matters taken on appeal through their ability to introduce evidence that was not presented at the consent authority ... hearing.91

These statements confirm that legislative changes in relation to the Court’s jurisdiction are not required. A more straightforward means of addressing the problem would be to amend s 120 of the RMA by limiting the right of appeal to the applicant, the consent holder and submitters who appeared at the primary hearing. Additionally, the scope of the appeal could be limited to matters given in evidence at the hearing, subject to discretion for the Court to admit further evidence in response to new circumstances or changes in the law arising after

  1. Ibid at 2.
  2. Cabinet paper, Improving the Resource Management Act 1991 CAB Min (04) 30/10 at para 93.
  3. Ibid at para 93.
  4. Ibid at para 90.

the conclusion of the primary hearing or important new information that had become available after the hearing. Beyond that, all other concerns raised by the review in relation to the Court appear to be capable of resolution by Case Management, revised Practice Notes, and the increased emphasis on alternative dispute resolution.


The current RMA review process demonstrates a critical need to recognise the importance of making provision for infrastructure projects under the RMA as a matter of national significance. Examining the options for reform of the RMA also demonstrates the critical need for national policy guidance. As a result, the streamlined procedures for preparing National Policy Statements and National Environmental Standards, together with the commitment to progress them now shown by the Government, are to be welcomed.92 Overall the preparation of national policy guidance should assist in achieving the right balance between national and local interests, achieving consistency between Local Authorities, and providing clarity and certainty for applicants on the matters covered by them.

Limited procedural amendments should also be made to improve Local Authority hearing procedures in relation to pre-hearing meetings and to clarify information requirements for applicants. Similarly, accreditation of Local Authority decision-makers should improve the quality of the hearing process. However, the move toward a more inquisitorial approach during the hearing itself is likely to increase costs. Absent any commitment to use qualified Independent Commissioners, it is unlikely that the proposed changes will result in robust hearings or provide confidence that hearing panels have requisite skills to inquire into and test the evidence given.

Finally, procedural improvements in the Environment Court have reduced the number of cases waiting for a hearing by more than half. As a result calls for the removal of de novo appeal rights are unwarranted unless empirical evidence based on monitoring these procedural changes demonstrates that further reforms are needed.

  1. Ministry for the Environment, Improving the RMA and Environmental Standards (November 2004) standards

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback