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New Zealand Journal of Environmental Law |
Last Updated: 13 February 2023
329
The Right of Third Party Appeal in New Zealand Land-use Planning: An Outsider’s Perspective
Carla Towns*
Planning systems in Western democracies are often the focus of public scrutiny as they inevitably interfere with property rights. The effect of the right of third party appeal thus becomes the subject of debate. The New Zealand system of integrated planning and environmental manage- ment embraces not only public involvement in planning decisions, but also a right of third party appeal. The debate in the UK, where the right is absent, prompted the author to research the operation of the right of third party appeal in a system where it is truly entrenched. The paper offers an overview of the evolution of the New Zealand land-use planning system and a critical appraisal of the way in which the system has incorporated the right of third party appeal. Statutory limitation of the right is addressed, procedural and financial limitations are detailed, and the interplay between public participation and third party right of appeal is investigated. The conclusions suggest the New Zealand system is to be admired for valuing the right as democratically necessary and that the model indicates that third party rights and the right of appeal can complement each other.
1. INTRODUCTION
Third party rights are a matter for debate across all democracies, and are particularly contentious when private property rights come into play, thus the third party right of appeal in planning has sparked much debate. The right is
*LLB (Aberdeen), Dip LP (Aberdeen), LLM by research (Aberdeen). Part of the research for this article was completed at the Law School of the University of Auckland where the writer was a visiting scholar.
entrenched in New Zealand landuse planning and its value is rarely questioned; therefore, as an outsider, the researcher chose to review resource management. The aim of this article is to critically appraise the operation of the right of third party appeal in New Zealand environmental planning. To achieve this aim the paper provides firstly an overview of the operation of the third party right of appeal in the evolution of New Zealand planning, and secondly focuses upon a critique of the third party right of appeal by establishing the provision of third party rights in New Zealand and drawing upon case studies. Overall this critique of the unique way in which New Zealand incorporates the right of third party appeal into landuse planning adds to contemporary debate across Western democracies.
Historically, the law in New Zealand, often influenced by that of England, diverged in terms of town and country planning as New Zealand developed a zoning system.1 The beginnings of the zoning system emerged from the grid patterns seen in colonial developments, which are still used in regional and district plans in New Zealand today. The zoning system allows some development as of right, but other activities require permission from the planning authority (resource consent).2 This has been the case since the birth of the New Zealand planning system. It is an application for resource consent that triggers the third party right of appeal.
New Zealand’s approach to the limitation of developers’ rights is that the right of use and enjoyment of property has always been subject to qualifications.3 Williams demonstrates the qualification on the absolute right to property by referring to the English case of William Aldred in 1609.4 Aldred brought a case against Thomas Benton because Mr Benton had put a pigsty upwind of his property. The judge applied the maxim sic utere tuout alienum non laedas (use your own property in such a manner as not to injure another) and demanded removal of the pigsty. The birth of town and country planning in 1926 introduced state intervention in development rights. It did not, however, qualify this further by using statutory interference with private rights of individuals to justify a removal of third party rights. Rather, just as the common law of nuisance allowed parties to bring an action, the system accommodated the third party right of appeal. The writer seeks to demonstrate that although the system
4 [1572] EngR 478; (1609) 77 ER 816.
has never questioned the value of the third party right of appeal, it has sought to limit it.
2. THE CURRENT ENVIRONMENTAL PLANNING SYSTEM IN NEW ZEALAND
New Zealand (hereafter “NZ”) has a population of just over 4 million5 and a landmass of 280,000 square km.6 The Auckland region, alone, contains a third of the population of NZ and the five major cities account for over half of the population. As an outsider from a country of apartment blocks, townhouses and small gardens (UK), the researcher was surprised to find the average New Zealander regards less than a quarteracre section of land as being quite small, even if they are living in the city. The NZ planning regime is to be admired in the way it accommodates this type of land subdivision so closely associated with the New World culture, encourages involvement in planning, and provides for a right of appeal for the applicant, the individual currently holding the resource consent and any person who made a submission (a written representation detailing an opinion on the application for permission to develop).7
The NZ landuse planning system was previously governed by the Town and Country Planning Act 1977, but reforms in the late eighties saw the emergence of integration of planning and environmental regulation.8 Planning is now governed by the Resource Management Act 1991 (“RMA”), which provides for development control by way of regional and district plans, policy statements, plans and rules, and applications for resource consent. This means certain development is permitted by virtue of the regional or district plan. There are rules in the relevant plan governing development activities. The role of the plan is very important as people will purchase land and develop without consulting the planning authority.9 When an activity is not permitted by the regional or district plan, the developer applies for resource consent to carry out development. The decision whether or not to grant resource consent is at the discretion of the relevant regional and district planning authorities. It would seem this system offers a degree of certainty for the developer. A third party,
7 RMA, s 120.
however, who is not up to date with the content of the regional and district plans can find they are powerless to stop development in their area. As will be discussed, the third party may also find themselves excluded from the resource consent decisionmaking process as their involvement and right of appeal is dependent on a planning authority decision to notify the consent.
To an outsider, the system seems very inclusive because the right of appeal is not limited to parties who are directly affected by development on neigh bouring land. All third parties are viewed as potentially having an interest in any development and have an independent judicial body (the Environment Court) to appeal to when aggrieved by a planning decision. On the face of it this appears to be a very liberal and potentially expensive provision. An investigation of the historic development of NZ environmental planning, however, beckons a different conclusion.
3. THE RIGHT OF THIRD PARTY APPEAL IN THE CONTEXT OF THE HISTORIC DEVELOPMENT OF
THE NEW ZEALAND PLANNING SYSTEM
The right of third party appeal is entrenched in the NZ system, but it has not proven impervious to limitation. New Zealand, like most democracies, has found landuse planning central in promoting economic development. Accordingly, the planning system has undergone changes over the years. This section of the paper traces the evolution of town and country planning and examines the journey of the third party right of appeal and how it was incorporated into the current system of resource management.
3.1 The Planning Acts of 1926, 1953 & 1977
The formal inauguration of the NZ zoning system was marked by the Town planning Act 1926.10 Post World War II the legislation was considered inadequate and duly replaced by the Town and Country Planning Act 1953 (“TCPA”).11 Under the 1953 Act, planning consent was necessary when there was a specified departure from the plan, a conditional use, or a dispensation. Dispensation was generally used for minor household applications. When there was to be a specified departure from the plan or a conditional use, the planning authority notified those likely to be affected by the development. An application for a dispensation could be granted without notification if written consent was
obtained from every person affected by the development. The right of third party appeal was only triggered when citizens were notified. The limitation of third party right of appeal is apparent from 1953 as the dispensation procedure deemed the householder the applicant most likely to be allowed to proceed with a nonnotified application. As householders constitute a large body of resource consent applications it might be assumed that this limitation was directly related to the speed, efficiency and cost of planning procedures. For the third party, development in close proximity to their property is normally of primary consideration and although giving consent involves relinquishing the right of appeal it can also be viewed as an innovative, positive way of avoiding neighbour disputes about development.12 As will be discussed later, the extent to which the provision for giving consent is exploited has a bearing on effective limitation of the right of third party appeal.
From the outset, the planning system created a separate body to decide appeals by first and third parties. Under the 1926 Act, the town planning board operated within the discretionary processes of local authorities. The 1953 Act replaced this system with an independent appeal board, which operated under a legally qualified chairman and was given additional jurisdiction to hear land subdivision and water right appeals.13 This change signified the formal recognition of greater involvement of the legal profession in the planning process.14 The creation of an independent board also signified a move toward further formality of the appeal process and, as will be discussed, the formality of procedures discourages certain litigants thereby limiting the number of third party appeals.
The Town and Country Planning Act 1977 brought three further develop ments. Firstly, it changed the system of appeal boards by providing for a Planning Tribunal, thereby introducing District Court Judges into the tribunal system.15 Secondly, the 2nd Schedule directed “ ‘greater concern’ toward the ‘social, economic, spiritual, and recreational opportunities’ and amenities ‘appropriate to the needs of the present and future inhabitants of the district, including the interests of [children and] minority groups’.”16 Thirdly, it prescribed those bodies with a right to object under the planning regime.17 Legarth suggests the scope of planning was expanded by the 1977 Act “to encompass social,
economic, spiritual, recreational opportunities and amenities”.18 Memon argues the 2nd Schedule marked the beginning of community involvement and sustainability.19 It would seem, by 1977, NZ was embracing an approach to landuse planning which endeavoured to accommodate the conflicting needs of communities, future generations, and aggrieved third parties. The move toward sustainability was to go further than balancing competing needs, as an integrated environmental management and planning system was about to be born.
3.2 Law Reform and Resource Management 1970 to 1991
Williams traces the lineage of the Resource Management Act 1991 back to 1970 when the New Zealand Environment Conference recommended an Environmental Council, which was set up accordingly.20 Further to this, the United Nations Conference on the Human Environment 1971 resulted in the NZ government appointing the first Minister for the Environment and a Commissioner for the Environment.21 The World Conservation Strategy of 1980 led to political strategy changes in line with international recommendations,22 and the 1987 Brundtland Report was to become the most important source of resource management concepts — namely, sustainability.23
A change of government in 1984 led to a political shift as the new Labour government restructured policies, creating a new public bureaucracy responsible for the management of the environment and natural resources. The Environment Act 1986 constituted the Ministry for the Environment, the office of Minister for the Environment and Parliamentary Commissioner for the Environment. The Conservation Act 1986 created the Department of Conservation. The Ministry for the Environment assumed responsibility for town and country planning functions.24 The government endorsed and adopted the World Conservation
Strategy of 1980, and the Brundtland Report provided the impetus for sustain ability to become the primary focus of the pending law reform.25
In 1987, parallel to consideration of international environmental influences, the government commissioned the Review of the Town and Country Planning Act 1977.26 Hearn examined third party rights, stating, “the reduction of third party rights in the interests of reducing potential delays would probably not now be publicly acceptable”27 and:
Others have suggested that third party rights of objection ought not to extend to third party rights of appeal against a local authority’s decision in favour of an application. I do not see that that could be acceptable in a democratic society, when account is taken of the nature of the hearing before the Planning Tribunal, the absence of crossexamination in the hearing before a local authority and matters of that sort.28
The report recommended that the planning system be flexible and recognise market forces; the Legal Aid Act 1969 be amended to enable public issue groups to apply for legal aid, shorter time limits in the appeal process, and greater coordination between the Town and Country Planning Act and other resource management statutes.29 In the author’s opinion, Hearn’s review sowed the seeds for further limiting the right of third party appeal. However, it highlighted the value of the right of third party appeal — not to the planning system, but rather as a democratic necessity that would require accommodation in any future reform.
In 1987 the Labour government appointed a new Minister for the Environ ment, Geoffrey Palmer.30 In the same year, at the first meeting of the Ministry for the Environment (“MfE”), the proposal for the Resource Management Law Reform (“RMLR”) was put forward. Palmer is quoted as saying to the Ministry: “I agree with all you want to do. We’re going to do it and we’re going to start this afternoon.”31 And so, throughout a threeyear process of reform, the interrelationship between town and country planning and other statutes was discussed, adapted and developed.
Sustainable development was the focus of the RMLR. The definitions of
27 Ibid, 129.
28 Ibid, 130.
sustainability discussed, therefore, were broad. Initially, the MfE referred to the World Conservation Strategy definition:
to maintain essential ecological processes and lifesupport systems on which human survival and development depend; to preserve genetic diversity ... and to ensure the sustainable utilisation of species and ecosystems, which support millions of rural communities as well as major industries.32
The MfE defined the sustainability approach as follows:
The anthropocentric view holds that ecosystems and the resources they provide are available in the environment to be used to maximise human welfare. In other words, rights and obligations do not exist of themselves but are conferred and accepted by humans. This approach acknowledges that present management of resources will have implication for the welfare of future generations.33
MfE supported this statement, contending:
The anthropocentric view is embodied in most Western thinking. Not sur prisingly, therefore, it provides the basis for one approach to viz., the economic approach, to resource management in general and the issue of sustainability in particular.34
The word in the MfE approach to anthropocentric sustainable management worth highlighting is “economic”. It would seem that the MfE acknowledged that the interrelationship between sociopolitical and environmental sustainability is fragile and the effects of prioritisation of needs, as a result of resource management, creates uncertainty for all parties involved in the planning process.
MfE decided to use the concept of “sustainable management”. The operation of sustainable management, within the realms of resource management, was dependent on clear decisionmaking by planning authorities. The new regime, therefore, delegated environmental planning functions to regional and district authorities. The holistic approach to environmental planning advocated by the government was incompatible with an ad hoc of 700 local authorities of vary ing types. In parallel with the RMLR, the task of reducing the number of local authorities was undertaken. The final schemes were issued in July 1989; 217 city, borough and county authorities were reduced to 12 regional authorities
and 74 territorial authorities. The number of special purpose authorities was reduced from 466 to just seven. By reducing the number of local authorities, environmental decisionmaking would happen at a regional and/or district level. Prior to the reorganisation, when a developer applied for resource consent, the technicality of communicability between various authorities involved in the planning decision often caused confusion for first and third parties. The new system was designed to reduce complex interaction between varying resource consent authorities thereby making information clearer and easier to access.
As part of the RMLR, MfE produced a paper on public participation in environmental planning called Working Paper No 12 which stated: “there is a presumption that any resource use law should ensure that all interested parties have equal and effective access to decisionmaking processes.”35 The ethos of resource management was one of involvement. The rights of third party objectors were not to be interfered with; rather, the principle of sustainable management and the focus of environmental effects were to remodel their status.
3.3 The Resource Management Bill
On 28 August 1990 the Minister for the Environment gave the Second Reading of the Resource Management Bill to Parliament stating the purpose as “sustain able management of natural and physical resources”.36 Palmer went on to say that the emphasis on natural and physical resources is deliberate and defines sustainable management as “management which enables people to meet their needs now without unduly compromising the needs of future generations”,37 concluding overall that the Bill makes “significant advances in streamlining the procedures for obtaining resource consents”.38
The Bill was to provide a onestop shop for resource consents where “joint hearings, where more than one consent is needed are encouraged, and any decision to hold separate hearings requires the agreement of the applicant”.39 Fisher goes as far as to say the Bill was sold to the NZ public on the basis of the streamlining of resource consent.40 The reform of local government meant that the regional and district councils would act as planning authorities and that
37 Ibid, 100.
38 Ibid, 101.
resource consent applications would be heard all at once. A most significant change affecting third parties, however, was that the dispensation category was not carried forward. The Bill afforded local authorities the discretion whether or not to notify consents in all types of consent application. Only through notification would the third party right of appeal be triggered; nonnotification would limit third party rights. It would seem that the certainty afforded by the economic benefit of streamlining of consents outweighed the limitation on third party appeals.
The Bill was successful and the Resource Management Act 1991 came into force on 1 October 1991, repealing or amending over 50 other environmental statutes. The birth of the RMA was only the beginning. The next section of the paper examines the complexities of interpretation and administration of the Act.
4. THE REDEFINITION OF PLANNING
Gunder describes the Resource Management Act as redefining planning pro cesses; he states: “the Resource Management Act is a legal framework for supporting the economic system by defining and protecting individual property rights against the threat of environmental externalities, or effects.” 41 Barton contends: “there would not be much point in the RMA if it did not encompass the possibility of constraining the use of property.”42 The Courts have also interpreted the effect of the RMA on property rights. In the case of Falkner v Gisborne District Council 43 Barker J held: “The Act is simply not about the vindication of personal property rights, but about the sustainable management of resources.” 44
It would seem sustainable management includes consideration of the protection of the property rights of future generations. In this sense, the economic focus, highlighted by the relationship between property rights and resource management, is one of encouraging economic activity with longterm potential. “Sustainable management” is defined by s 5 of the RMA:
44 See Hall v McDury [1996] NZRMA 1 (PT). The Court held the common law and statutory right to use a public road did not override the RMA provisions.
... means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while:
(a) sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and(b) safeguarding the lifesupporting capacity of air, water, soil, and ecosystems; and
(c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.
The Courts, however, have differed in their interpretation of sustainable man agement. An example can be seen in the case of Te Aroha Air Quality v Waikato Region (No 2), involving the right of third party appeal.45 A community organisation opposed the granting of a resource consent for a beef byproducts rendering plant. In the decision of the tribunal, Judge Sheppard said that “the judgment must be informed by the statutory purpose of promoting sustain able management of natural and physical resources”46 and that “avoidance of adverse effects is more consistent with the purpose of the Act than enforcement proceedings after the adverse effects have been experienced”.47 The Court decided, the potential effects of the unavoidable emission of odour on adjacent properties, the degradation of amenity values of the properties, and the adverse effect on the local racecourse and motor camp outweighed any positive effect of establishing the plant. Judge Sheppard concludes: “The Resource Management Act ... is concerned with natural and physical resources as defined, not with economic resources.”48 The third party appellant was successful, as the Court held that the application for landuse consent should be refused.
It would seem the concept of sustainable management potentially subjects those with property rights to further restrictions, with a view to protecting natural and physical resources and economic benefits in the long term. The way in which planning authorities carry out their duties under the RMA may affect how people use their property. This, in turn, affects arguments used by third parties when they object to development, regardless of motive. The lack of consistency in the interpretation of sustainable management appears to add to the uncertainty of bringing arguments to court, a significant deterrent for a potential third party appellant. This uncertainty can be regarded as a strength as it also encourages third parties to be well organised. The prudent third
45 [1993] NZPT 155; [1993] 2 NZRMA 574.
46 Ibid, 584.
47 Ibid, 586.
48 Ibid, 588.
party seeking to limit development will be aware of how the RMA is being administered by their regional and district council and may become involved in the process as early as possible, rather than reacting at the time a decision is published.
5. HOW DEVELOPMENT IS CONTROLLED BY THE RMA
The RMA is administered by councils who prepare regional policy state ments and regional and district plans to ensure sustainable management of the environment. These are developed through a process which allows public participation.
RMA 1991 Part 2 sets out the purposes and principles that are to be recognised and provided for by all persons exercising functions under the RMA. For example, s 6 sets out matters of national importance. The culture of the ancestral people of New Zealand is considered a matter of national importance. Section 6(e) provides that “the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga must be provided for”. Sections 7 and 8 further reinforce the importance of Maori relationships. Section 7(a) is concerned with the exercise of guardianship in relation to a resource (kaitiakitanga) and s 8 takes into account the principles of the Treaty of Waitangi 1840.49 This means that Maori have an enhanced role as third parties because the statute provides that they be consulted on many planning decisions.50
In the main, the regional and district councils are responsible for im plementing the RMA, although key government bodies may be involved. The function of regional councils can be found at s 30 of the RMA. Councils have to ensure that “environmental effects of resource use are avoided, remedied or mitigated”.51 Today there are 86 councils in NZ; 12 regional, 15 city and 59 district. Only four councils in NZ are unitary authorities. The regional council prepares plans and policy statements on land use and assesses some resource consents. The regional policy statement clarifies the roles of regional and district councils and sets out an overview of key policy objectives and resource management issues.52 The territorial authorities — namely the city and district
52 RMA, ss 59 & 62.
councils and unitary authorities — prepare and implement district plans relating to landuse planning and development control. The authorities encourage third party involvement early in this process.53 The development of a plan or policy statement can be found in the First Schedule of the RMA. The plan or policy statement is publicly notified and there is a period of at least 20 days in which submissions may be made. The council conducts a hearing (or a series of hearings) in relation to the submissions. Any person dissatisfied with a decision of the council may appeal to the Environment Court. The type of appeal was formerly called a “reference”. The plans contain rules which are legally binding. Rules allow the environmental effects of an activity to be evaluated before it is carried out. The property rights of individuals are interfered with by rules because they may find the rules contain a restriction of an activity, such as tree felling, on their land.
If an activity is subject to a rule or detailed in the regional or district plan as an activity not permitted as of right, then it will require resource consent.54 The resource consents most relevant to this article are those involving land use (land use includes the surface of water). The two types of landuse consents are subdivision consent (required to divide land or buildings for separate ownership, such as new lots or sections) and landuse consent (required if a building project or landuse activity does not comply with the regional or district plan rules). Activities are classified as follows: “controlled”, eg the painting of a relocated home;55 “restricted discretionary”, eg building a garage too close to a boundary; “discretionary”, eg building a healthcare centre in a residential zone; and “non complying”, eg an activity breaching the standards in the district plan, such as building an office block in a residential zone, or being an activity not provided for in the policies or rules. Councils are not bound to grant resource consent for restricted discretionary, discretionary, and noncomplying activities. Part 3 ss 9 to 13 of the RMA provide for duties and restrictions in the use of land. Section 9 restricts land use that is not expressly allowed or has not received resource consent from the relevant local authority.56
As discussed more fully below, when a person applies for resource consent the authority decides whether or not the application will undergo a notification procedure. If the planning authority decides to notify the consent, the right of
third party appeal is triggered. Section 120 provides for the third party right of appeal:
(a) the applicant or consent holder:(b) any person who made a submission on the application or review of consent conditions.
Having considered the way in which the NZ planning system has evolved and its administration, the discussion turns to a critique of the resource consent process and the limitation of the third party right of appeal.
6. RESOURCE CONSENTS AND LIMITATION OF THE THIRD PARTY RIGHT OF APPEAL
A total of 54,658 resource consent applications were processed by resource consent authorities in the period 2003/2004. Only 4.8 per cent (2,921) of these were notified.57 In 2004, 548 third party appeals were made to the Environ ment Court. That is to say, only 19 per cent of notified resource consent applications are likely to become the subject of third party appeal. The Court determined 1,377 cases in 2004 and 629 of these were third party appeals.58 The Environment Court’s success in determining these appeals is good, as only 22 third party right of appeal cases were appealed to the High Court in 2004. These statistics raise questions concerning resource consent and Environment Court procedures acting as a limitation on the exercise of the right of third party appeal.
6.1 The Resource Consent Process
Resource consents are mainly covered by Part 6 and Part 6A of the RMA (ss 87–150G), which cover the general resource consent process including landuse
consent; and Part 10, which covers land subdivision. The same process applies to all different types of resource consent. The initial process involves applicants contacting the planning authority to ask if resource consent will be required. The planning officer informs the applicant of the type of consent relevant to the activity and posts out the application form. The applicant then lodges an application with the council.59 In accordance with the principles and purposes of the RMA, the council is primarily concerned with the “effects” as opposed to the type of the activity.60
On receipt of the application, the council will decide within 10 working days if the consent should be publicly notified.61 The council may request further information at this stage.62 If the consent is not publicly notified then there is a period of 20 working days in which the council makes its decision.63 The council can extend time limits up to twice the specified period for any resource consent application.64 Under nonnotification procedures, the minimum period a consent application can take is six weeks and the maximum period is 12 weeks.
If the consent is publicly notified, there is a further 20workingday period in which the procedures for notification take place and submissions are received.65 There is then a period of 25 working days66 during which the council completes three procedures: the council may request further information from the applicant; submissions are considered; and a prehearing meeting may take place.67 At the end of this period there is a hearing68 and then a further 15 working days before the council makes its decision. By contrast to the non notified consent, the minimum period that an applicant can expect the public notification process to take is 19 weeks; the maximum period is 38 weeks.
Further to the council decision on any resource consent, a copy of the decision is served on the applicant and a notice of the decision is served on persons who made submissions and other persons the authority considers appropriate.69 The copy and notice of decision detail that the applicant or
69 RMA, s 114.
submitters have 15 working days to appeal the decision to the Environment Court.70 In addition to the right of appeal to the Environment Court, submitters who have had their submission struck off at the hearing stage under s 41C(6) and applicants have a limited right of objection to the consent authority.71 If a resource consent is granted with conditions attached,72 and is nonnotified, applicants may appeal to the Environment Court against the conditions. If it is notified, submitters and applicants may appeal to the Environment Court against the conditions. The remedy of judicial review of process is open to anyone, but this remedy may be of dissatisfaction to the aggrieved third party as their case will rest with procedural arguments rather than being judged on its merits.
The disparity of 26 weeks, in the event of the notification of resource con sent, highlights the uncertainty, complexity and delays caused by notification and the potential for third party appeal. For example, the international logging firm Blue Lumber waited two years for a final decision on a proposal to estab lish a sawmill on the Coromandel Peninsula because of third party opposition led by the Whangapoua Environmental Society.73 At first glance it would seem that the right of third party appeal is an intolerable threat to development, but an assessment of the notification procedure and the role of the Environment Court, however, reveals that the impact of the third party right of appeal can be minimised.
6.2 Notification of Resource Consents
Coutts describes public involvement as a “fundamental principle of the Resource Management Act” and explains “for this reason, the process of gaining a resource consent is principally a public one”.74 The Royal Forest and Bird Protection Society of New Zealand (“Forest and Bird”) claim that public notification under the RMA is less than half that which occurred under the TCPA 1977,75 the reason being the removal of the dispensation and the extension of nonnotification to all types of resource consent. The discussion will now assess notification requirements.
Sections 93 to 94B provide resource consent applications need not be notified in a number of circumstances. Controlled activities need not be
70 Ibid, s 120.
71 Ibid, ss 357A, 357C & 357D.
notified unless there is a rule in the plan that states otherwise. For a restricted discretionary activity, the consent authority must disregard an effect outside the discretion. In general, discretionary and noncomplying activities are notified unless the effects on the environment are considered by the authority to be minor. Under s 104 the resource consent authority is prohibited from taking into account the effect of an activity upon a person who has given written approval. If some affected persons have not given their written approval the planning authority must serve notice upon all affected parties, including those who have already provided a written approval.76
The planning authority is afforded discretion by ss 94A and 94B to restrict its own powers in terms of creating a restricted discretionary activity in the plan, and may accept a report that effects on the environment will be minor accompanied by the written approval of all persons who may be adversely affected. The powers were introduced by the Resource Management Amendment Act 2003. Otherwise, under s 94 the authority should serve notice upon all affected parties when written approval is not obtained from all parties likely to be affected. The limitation of the third party right of appeal by the resource consent process would seem to highlight the vulnerability of the right to further limitation. But the provision for serving notice on a person likely to be adversely affected suggests commitment to appropriate third party involvement.77
The Resource Management (Forms, Fees and Procedures) Regulations 2003 prescribe the procedures for public notification, and MfE provides guidelines on notification and which parties may be regarded as affected. In the case of Bayley v Manakau City 78 Blanchard J said:
There is a policy evident upon a reading of Part VI of the Act, dealing with the grant of resource consents, that the process is to be public and participatory. Section 94 spells out exceptions, which are carefully described in circumstances in which a consent authority may dispense with notification. In the exercise of the dispensing power, and in the interpretation of the section, however, the general policy must be observed.79
The case highlights that public participation is a primary consideration, but the reality of the pressures on resource consent authorities to perform leads to avoidance of notification.80 Gleeson contends, “the pressure for a more
efficient approvals system that is embodied in the Resource Management Act can encourage planners to adopt very restrictive notions of affected parties in order to limit the potential for notification”.81
In 1994 the MfE conducted the Study of Good Practice in the Processing of Resource Consent under the Resource Management Act 1991. The Ministry’s study found that nonnotification was one of “the biggest opportunities for quicker consent processing”.82 The study details the application of JEC International Takeaway Bar / Christchurch City Council where
the applicant talked to neighbours and got the agreement of 14 adjoining property owners. This allowed the application to be nonnotified. The whole process took 28 working days and cost $200.83
The option of obtaining written approval appears to streamline the process, but sometimes, as discussed below, there is a quid pro quo.
6.3 Non-notification and the Commodification of Rights
In 1998 the Office of the Parliamentary Commissioner for the Environment reported that: “The RMA creates a climate where there are clear incentives to enter into private arrangements.”84 To enable the resource consent to be nonnotified, the developer approaches all parties that may be affected by the development prior to the application. Sometimes the developer effectively purchases the consents from affected parties and presents them to the council. The Office of the Parliamentary Commissioner for the Environment states: “If an applicant provides financial or non financial incentives to secure the approval of these affected parties, they are entering into a side agreement.”85
and Implementation for the RMA 1991 from 1996 to 2001, 1997. See also Ministry for the Environment, Resource Management Act Practice and Performance: Time Delays in Processing Resource Consents, June 1998.
Gleeson calls this issue the “effective commodification of the consent approval process”.86 He claims that s 94 “encouraged the trading between developers and potentially affected communities”.87
For the educated individual, it is possible to take advantage of the re quirement for written approval. For example, a Wellington property owner demanded $100,00088 before he would give approval for a nearby veterinary practice.89 The council need never know the terms of the side agreement, a con siderable motivation for developers, which usually include nonparticipation of an interested party.90 The developer is not accountable to the council for the information provided to the affected/interested party. In this sense, the securing of written approval makes environmental management less effective as it does not protect vulnerable individuals.91 It seems that the individual most likely to give approval is the one least likely to be able to access appropriate information. In turn, the parties most susceptible to prejudicial side agreements are those in society who are least wealthy and least educated. Despite the implications for social justice, the reality for local authorities is that full engagement with the public can lead to the drawing out of procedures, thus side agreements promote expediency.
6.4 The Use of Pre-application and Pre-hearing Meetings
By contrast to the side agreement, the impact of third party objections and the threat of third party appeal are also minimised in more transparent ways. Prior to an application for resource consent the council encourages a preapplication meeting. For applications not involving major or complex issues, the applicant meets planning officials. For applications involving major or complex issues, the meeting will involve many parties.92 The preapplication meeting helps the applicant to find out what to include in their application. This increases certainty for the developer and allows third parties to air their views. If the resource consent is likely to be notified and objections raised, then the applicant can modify the application in advance to help eliminate some submissions.
When a resource consent is notified, there is usually a prehearing, as provided for by s 99 of the RMA. The consent authority can invite “anyone who
88 Approx £32,000.
89 Ibid, 121.
has made an application, a submission or such other persons as the authority sees fit”.93 The outcome of the meeting is circulated to all parties by way of report before the council hearing. The consent authority “shall have regard” to the report in its consideration of the application.94 There is no obligation to hold a meeting unless a submitter requests to be heard.95 One of the weaknesses of predetermination hearings is that the views of parties can be polarised to the extent that the consent authority is powerless in terms of resolution and faces an appeal regardless, thereby rendering the predetermination meeting useless. This weakness has been addressed by s 58 of the Resource Management Amendment Act 2005 which amends the RMA 1991 by adding s 99A. The new section allows the local authority to refer applicants and submitters, with the parties’ consent, to mediation.
Preapplication and prehearing meetings have been found to be useful in the streamlining of consent applications. MfE advised that prehearing meetings are timeconsuming but productive.96 The 1994 Study of Good Practice in the Processing of Resource Consent under the Resource Management Act 1991 examined 15 applicants. The results showed “consent authorities alone could not ensure smooth consent processing, and applicants must work with consent authorities”97 and allowing public participation early on enhanced consent processing. The study details the merits of the preapplication meeting and the prehearing process, noting it “helped to smooth the consent granting process”.98 The report details the examples of: the application of Pauanui Water Ways Ltd, where 427 submissions lodged were reduced to 12 to be heard at the formal hearing; the application of Macraes Mining where, of the 19 submitters heard, only five wished to be heard at the formal hearing; and the application of Massey University at Albany, where the preapplication meeting resulted in a joint stakeholder decision not to notify.
The Massey University application proposal is a good example of the successful operation of preapplication meetings as the proposal included non complying and discretionary activities. A preapplication meeting was attended by residents, community boards, politicians, the consultants and the planners. The stakeholders decided the resource application should be nonnotified and the council accepted the resource consent application as one requiring no notification. The application was processed in 32 days and a university campus was built within six months.99
93 RMA, s 99(1).
94 Ibid, s 99(2)(b).
95 Ibid, s 100(b).
This type of public engagement in the resource consent process is not only a way of eliminating potential objectors, it also allows applicants and the consent authority to ascertain the likelihood of actions of judicial review and of appeal. For the third party, attendance at such a meeting can clarify the applicant’s plans, highlight opportunities for negotiation, and increase confidence in resource management. The opportunity for mediation under s 99A further en courages negotiation and resolution and can help to prevent future appeals. The NZ planning system is to be admired in the way it utilises meetings to assess the balance of conflicting needs and ultimately avoid third party appeals. This model offers proof that the rights of first, second and third parties can complement each other.
6.5 The Role of the Environment Court
When a third party brings an appeal to the Environment Court, they are faced with Court procedure. The Environment Court has sittings around the country, which enhances accessibility for third party appellants. The Court consists of Environment Judges (who are also District Court Judges) and Environment Commissioners. Generally, one Environment Judge and two Environment Commissioners are present at each sitting. In the case of a notified resource consent, the consent is not granted unless the time for lodging appeals has expired and no appeals have been lodged.100
When a third party wishes to lodge an appeal it is in a prescribed form.101 The form provides for relief sought102 and the appellant must include this or the Court will not consider the appeal.103 The relief sought must be within the scope of the original submission. The impact of this on a third party is that the emphasis is on their original objection to the development. This creates certainty for the opposing party, as the relief sought will be clear prior to litigation. The time limits are tight as the forms must be lodged with the Environment Court and served on the council within 15 working days for resource consent appeals104 and the appeal lodged with the applicant and other submitters within five working days of it being lodged in Court.105 The RMA does allow time limits to be waived,106 but, in general, the tightness of the procedures encourages
100 RMA, s 121(1).
See Ministry for the Environment, Preparing an Appeal, 2005.
103 RMA, s 121(1).
104 Ibid.
105 Ibid, s 121(2).
106 Ibid, s 281(1). The Resource Management Amendment Act 2005 inserts s 281(5) which gives the Principal Environment Judge the power to allow the Registrar to make decisions on time
appellants to envisage appeals and be well organised prior to the resource consent decision being made.
If the appeal concerns conditions of a consent, the Court may permit the consent to commence prior to the outcome of the case.107 This allows delays to be shortened and development to go ahead, thus limiting economic loss. When an appeal reaches the hearing stage the Court must have regard to the decision that is the subject of the inquiry. The Court can also accept evidence from the original hearing without the consent of the parties.108 This, however, does not limit the third party appellant as it is not simply a focused rehearing of the council hearing because the Court also allows fresh evidence to be heard.
A significant deterrent for third parties is cost. The role of the Environ ment Court is not about creating winners and losers and awarding damages accordingly. Accessing money for environmental cases often amounts to raising it. Appellants are often dependent on spurring communities into raising financial support.109 MfE has a legal aid system called the Environmental Legal Assistance Scheme which can be accessed by groups who appeal in the public interest. The Environmental Legal Assistance Fund provides funding for environmental, community, and certain Maori groups to prepare, mediate and/or present resource management cases to the Environment Court and other courts.110 The tight time scales, prospect of the Court relying upon evidence from the original hearing, and limited legal aid funding do not prevent parties coming to Court; rather, only parties who are serious about raising an action are likely to become involved in the procedure. In this sense, the procedures are designed to control the impact of third party right of appeal on environmental planning, not to frustrate its use.
waivers. This shows further commitment to the speed and efficiency of Environment Court proceedings.
(ii) McDonnell v Manukau City Council (Planning Tribunal, A80/94, 19 September 1994) where the appeal related to a noise condition, which did not apply during the construction period and construction was permitted prior to the determination of the appeal. See Williams, supra note 3, at 166.
6.6 Additional Dispute Resolution
The Act also provides for Alternative Dispute Resolution (“ADR”) at any time after the lodging of the appeal. The Environment Court, “with the consent of the parties and of its own motion or upon request”,111 can provide ADR at any time prior to or during the hearing. The practice of the Court is to identify issues in dispute at an early stage and encourage settlement by negotiation.112 If the Court decides ADR is an option, the Court Registrar writes to the parties suggesting mediation. If the parties agree to go to mediation, the file is passed to an Environment Court Judge or Commissioner; if not, the appeal continues. The main type of ADR is mediation. The mediators likely to be assigned by the Court are the Environment Court Commissioners.113 The process is voluntary and, should the parties elect to use the mediator chosen by the Court, it is free.114
If an appeal is resolved prior to the Court hearing or the conclusion of the hearing, then the parties prepare a memorandum of counsel in support of a draft consent order and a draft consent order. The draft consent order may be submitted to an Environment Judge sitting alone and the Judge can make a consent order, without need for a further hearing.115 Court practice is to consider ADR at all stages of the life of a case.116 The Local Government RMA Improvement Project Team acknowledge the success of ADR in resolving disputes,117 but criticise the Court for being inconsistent, across divisions, in its approach to mediation and also for using mediation too infrequently.118 No further criticisms of the Court’s use of ADR were found.
It appears that the effectiveness and status of ADR are enhanced by the role it plays in official Court process. Time and costs involved in an appeal case are of paramount consideration for all parties. Parties know when they receive the
111 RMA, s 268(1).
112 Environment Court, Practice Note: Case Management in the Environment Court, 2004, para 6. 113 RMA, s 268. Alternatively, parties may employ their own mediator from a recognised body, such as the Arbitrator’s and Mediator’s Institute of New Zealand or the Leading Experts in
Additional Dispute Resolution, or suggest another form of ADR.
114 Ministry for the Environment, You, Mediation and the Environment Court, 2001. 115 RMA, s 279(1).
letter from the Court Registrar, an Environment Court Commissioner is looking at the case and suggesting a free alternative. ADR is particularly useful when dealing with reactionary appeals by third parties objecting to neighbourhood activities. An example of this is the appeal of the Adriens against the Blacks. The Adriens appealed against the granting of landuse consent,119 which allowed the Blacks “to retain the existing flagpole in its existing position on their property at the corner of Beach Road”. The parties agreed to mediation and the outcome was the added condition that “the flag pole is lowered by 2.5 metres”. The Environment Judge was then able to grant an order by consent.120
7. REPRESENTATION AT PROCEEDINGS
Appeal cases reaching the Environment Court hold a further threat for appli cants; namely increased representation at proceedings. In the event of a first or third party appeal against a resource consent decision reaching the Environ ment Court the section of the Act which the developer may be most concerned about is s 274. Persons other than the applicant and the consent authority may participate in hearings before the Court, providing they give notice of their intention to do so. Persons who were not submitters, but have an interest, in the proceedings, greater than the public generally, or have a relevant public interest may join in proceedings. The Minister for the Environment and the Parliamentary Commissioner for the Environment also have the right to be heard.121 The potential scope of involvement is a daunting prospect for any applicant, as environmental groups representing public interests may become involved.122 This provision reinforces the importance of third party appeals as it allows third parties to utilise experts and strengthen their case.
In general, successfully raising an action of third party right of appeal requires sustained public interest. Buckridge and Tapp have questioned the enabling effect of the RMA, stating: “One party opposed a resource consent on the basis of potential environmental damage; however, underlying this is the opportunity that the Act provided for a party that was to be disadvantaged economically to oppose a proposal.”123 Although Buckridge and Tapp are
correct in pointing out the potential for economically disadvantaged third parties to raise an action based on private interest, the level of involvement required for a third party to be successful, the uncertainty of interpretation of sustainable management, and the procedures third parties must comply with pose a significant deterrent to even wealthy individuals seeking to frustrate development for financial gain.
8. HOW THIRD PARTIES USE THE RIGHT OF APPEAL
Having examined how the right of third party appeal is limited and its effects are mitigated and in order to fully assess the operation of the right of third party appeal, two case studies are now utilised to examine the cultural significance of resource management and the ways in which procedures limit third party appeals. The first of these is the V8 Supercar Race in Auckland and the second Cape Kidnappers Station.
Resource management is firmly embedded in NZ culture. The environment is a key issue, worthy of national press coverage every day. Major planning decisions affecting communities are often publicly notified by local authorities, and simultaneously critically analysed by local press. Local freepress publi cation may cover environmental planning in a detailed way, including contact details for local groups involved in objections. In this respect, it appears that NZ’s cultural norm is public engagement with, and interest in, the system of resource management. The culture of involvement invariably leads to a variety of interests being represented and the protraction of planning processes. The arguments used by those opposing planning decisions will generally be those that they hope will guarantee success. As such, arguments based on the protection of natural and physical resources often hold more chance of success than those based on longterm economic potential. A good example of the realms of the RMA and the breadth of environmental argument is the application for permission to hold the V8 Supercar Race in Auckland City.
8.1 Case Study 1: The V8 Supercar Race
The V8 Race is an international carracing event, and if it were to be held in the centre of Auckland, would be a worldclass event bringing large economic benefit to the city. The NZ leg happens once a year over three days (two of the days are over the weekend). It is normally held at the considerably more isolated racecourse location of Pukekohe, south of the city.124
In 2004 the organisers, International Management Group (NZ) Ltd, lodged a resource consent with Auckland City Council, requesting that the event be held in Central Auckland annually for seven years. The environmental effects of the race were considered to be major; therefore, the application was notified. Three independent commissioners acted as decisionmakers for Auckland City Council (the consent authority).125 Traffic access to the North Shore would be restricted over the race period. The North Shore is middleclass suburbia; therefore, the submissions were plentiful. Of 393 submissions, 63 per cent were in favour of the event.126 The arguments made by those opposed to the race centred upon the disruption to traffic infrastructure during the eightweek period from barriers and diversions, and the noise nuisance. The main legal issues were the duration of the activity being contrary to the provisions of the district plan and the level of interference with traffic.
A resource consent application is governed by s 104 of the RMA 1991, which requires consideration of environmental effects, provisions of plan ning documents, any other relevant matter, and a balanced decision in terms of sustainable management. The effects of the event were considered by the Commissioners to be major. The Commissioners refused consent, giving the following as reasons: the noise and amenity effects; the uncertainties relating to traffic suppression; and the ability of the applicant to provide for the avoidance, remediation or mitigation of adverse effects of the event.127 The V8 organisers decided not to appeal the decision as the process would be expensive and lengthy, because of objectors and risk of further third party appeal. They encountered the same difficulties in Wellington, the capital city of New Zealand.128 On 12 June 2005, David John, the owner of the NZ V8 team, said that he could see the V8 Supercars being forced to leave New Zealand. John stated: “That would be a disaster for this country. Right now this series is televised to 700 million people around the globe including China. New Zealand can’t buy that sort of promotion when we host our round of the championships.”129
The V8 example is demonstrative of the cultural importance of resource management. Holding the Supercar event in downtown Auckland would have resulted in international exposure, but the environmental arguments, which
were primarily based on the effect on the local amenity of the urban area, were successful. The problems experienced by the V8 carrace organisers highlight the power the right of third party appeal gives citizens, and the extent of influence on sustainable management outcomes.
The next case study of a successful right of third party appeal embodies the culture of resource management, promotes sustainability, and addresses the way in which the RMA succeeds in embracing the conflicting needs of communities and individuals. A paradox of the political, social, and cultural significance of resource management is that on the one hand tourism is “critical to New Zealand’s economy”, but on the other tourism also brings with it adverse environmental effects.130 Tourists want isolated locations with unblemished, spectacular views. The industry, therefore, is dependent on NZ’s clean, green image. Subsequently, the economic drive to promote tourism can often put local authorities in a difficult position when considering resource consent appli cations. The case of Cape Kidnappers Station Ltd 131 demonstrates the tensions between private, public, and economic interests.
In August 2003, Cape Kidnappers Station Ltd applied for a resource con sent to establish a 25unit visitor accommodation lodge. Three acres of the site of the development (in total an area of 2,086 hectares) is designated by the Hastings District Council as an Outstanding Natural Feature (“ONF5”). ONF5 is zoned as rural and although a smallscale visitor facility is permitted, a lodge is not. The applicant required permission to carry out controlled activities, discretionary activities, and noncomplying activities. The noncomplying activity was to erect buildings greater than 50 m². The gross area of the lodge was to be approximately 1,530 m².
The resource consent application detailed a luxury development including 24 chalets and a swimming pool. It would be visible to tourists from a nearby gannet colony, a popular destination. The application was notified. There were 24 submissions, all opposing the development. Submitters included Gannet Beach Adventures Ltd,132 Charles Gordon (a descendant of the original European owners of the property), and Peter Harland (representative of Maori concerns). Gannet Beach Adventures’ submission opposing the application, argued it was contrary to the purpose and intent of ONF5 and the district plan, would set a precedent for further development of ONF5 areas, was contrary to Part 2 of the RMA, and would have adverse effects on ecotourism.
[2004] NZEnvC 401; [2005] NZRMA 311.
There was no prehearing meetings because the views of the parties were considered to be too polarised.133 The application was referred straight to the Council hearings committee, where the application and submissions were considered publicly before a decision was made. The decision to grant consent at the council hearing was a 4/3 split and the consents were granted with 35 conditions. A third party appeal, against the granting of consent, was lodged with the Environment Court. The author interviewed an official of Hastings District Council: “Was there any indication of these objections or a likely s 120 appeal at the time the consent was granted?” The reply was: “It was clear from the Council hearing that no matter what decision Council made the application would be likely to be appealed to the Environment Court either by the applicant if turned down or by some of the submitters if approved.”134
The appeal was lodged by Gannet Beach Adventures Ltd, Charles Gordon, and Peter Harland. After it was lodged, a group called Cape Kidnappers Pro tection Society was formed and lodged their “representation at proceedings” notice with the Environment Court. Rod Heaps of Gannet Beach Adventures Ltd acted as spokesperson for Gannet Beach Adventures and the Cape Kidnappers Protection Society.135 The Society raised money for the appeal.
ADR was requested by Peter Harland. A Council official informed the researcher that the planning authority refused on the basis that: “it was the Council’s belief that there was no middle ground, the applicant wanted devel opment to go ahead on a particular site, they may have been amenable to additional conditions, however those opposing it didn’t want a lodge within the ONF5 area under any circumstances.”
In its decision, the Environment Court stated that:
Section 104(1)(a) speaks of effects on the environment, and is not confined to adverse effects. We accept that the effects of the proposal could not all be adverse. Its economic effects through employment, the provision of services and supplies and the attraction of people with high discretionary spending power would be positive. In that sense, it would be a ‘good thing’ locally, regionally and nationally. The problem is not the concept in the abstract. The problem is its location.136
The Court held:
In our judgment, placing and operating this development on this site would not promote the sustainable management of the natural and physical resource which the site and its surrounding environment represents. It would not use or protect that resource in a way that accords with that statutory purpose. The decision of the council is therefore not upheld and the resource consent is declined.137
Looking at the Cape Kidnappers case from a financial perspective, it would seem the community paid three times over. First they paid for the Council’s original decisionmaking process, then for the legal fees of the Council, and finally they paid into the Cape Kidnappers Protection Society charity buckets to raise money for the appeal. Financially, this was not in the community interest. Discussion with members of the community revealed that they felt immensely satisfied with their victory.
The Cape Kidnappers application was one where the prehearing process was not going to make a difference to the outcome for the planning authority, as the case was destined for an appeal. It is clear the pressure and costs for authorities in such cases is immense. The author considers, however, these are balanced by the rarity of such full utilisation of the RMA. Resource manage ment was conceived as an enabling statute and the case of Cape Kidnappers Station is a sound example of the way in which the right of third party appeal can work in favour of a motivated, organised community.
9. CONCLUSIONS
The conclusions drawn relate to the social and political development of the third party right of appeal and the limitation of the right by local authority decision making, legal procedures, and the financing of appeals. The initial approach taken by the Labour government, in response to international obligations, was thorough and proactive. The Resource Management Law Reform achieved more than a modernisation of planning, it redefined it. It has been described how both the Review of the Town and Country Planning Act 1977 and Working Paper No 12 placed third party rights as being central to the new system. It has also been noted that the government chose to retain third party involvement at the early stages of planning, but the third party right of appeal was adversely affected by the RMA removing the dispensation category and adding the provisions for nonnotification. This suggests the response of the planning system to market forces through expediency of decisionmaking was prioritised, despite a commitment to human values.
The approach to defining sustainability as a central purpose of landuse planning is anthropocentric in terms of placing public involvement as central in facilitating sustainable decisionmaking in planning. The system encourages third parties to be involved in the regional and district plan process, to attend preapplication and prehearing meetings, and to remain well informed on planning issues in their local area. The overall effect is to discourage reactionary challenges to planning decisions.
The procedure allowing for written approvals to be accepted by the planning authority, without proven knowledge of the content of the agreement, may result in the advantages of streamlining of resource consent being weighed against poorly informed decisionmaking. This lawful circumvention of planning procedure removes citizen participation from the system as it impedes third parties exercising further rights and negates the third party right of appeal. As has been demonstrated, the NZ culture is generally proactive in promoting a peoplebased approach to environmental planning matters. It would seem somewhat incompatible with sustainable management to allow, without intervention, citizens to be manipulated by private companies.
The acceptance of written approvals is effective in limiting the right of third party appeal, and there are difficulties in reconciling this with the anthro pocentric approach to sustainability. In short, the side agreement is a flawed procedure rather than a legitimate limitation to the right of third party appeal that creates decisionmaking contrary to the principle of sustainable management. It is acknowledged, however, given the potential delays caused by the right of third party appeal, as demonstrated by the V8 Supercar Race application, that it is hardly surprising that councils and applicants will use side agreements.
The dubious side agreement contrasts with the success of preapplication and prehearing meetings as a device for limiting the effect of the third party right of appeal. Unlike the side agreement, this procedure encourages the applicant to submit a consent that will not be opposed. This serves the purpose of empowering third parties, as their rights are not being interfered with or ignored, thus minimising the chances of a third party right of appeal. The foci of the meetings are understanding, opportunity to contribute, and resolution of issues prior to submission of the resource consent application. The Massey University case study in particular demonstrates the effectiveness of pre application meetings in negating the chances of third party appeals. Similarly, the examples of Pauanui Water Ways Ltd and Macraes Mining indicate the use of statutory prehearing meetings to be a successful tool in reducing objections and ultimately legal challenges by third parties.
As has been discussed, should the third party objector lodge an appeal, the Court procedures have a role in controlling the effects of uncertainty and delay caused by that challenge. The procedures for lodging appeals, the require ment of stating relief sought, the provision for development to commence when
the appeal relates to conditions, Court consideration of alternative dispute resolution, and financing a case when expenses are unlikely to be awarded, all conspire to encourage only wellorganised third party appellants, acting in the public interest, to utilise the right of third party appeal. The right of third party appeal is qualified by these factors, but it puts the third party on an equal footing with the first and second parties who have invested time and money in the resource consent application.
The Cape Kidnappers decision is a good example of the cultural depth of resource management, the right of redress being used in the community interest, and passion in protecting physical and natural resources. The motivation for the 25 submitters and the appellants was true to the ethos of the RMA as they desired to protect an outstanding feature of natural beauty. The communities objected from the stage of the preapplication meeting and made it clear they did not consider the development was in the public interest. The third parties were enabled by the legislation, true to its purpose, as without the right of redress the development would have proceeded. The case demonstrated a positive empowering use of the third party right of appeal, acting as a final check on local authority decisionmaking, and that the independence of a Court judgment was necessary to achieve a justifiable end.
This critical appraisal of the right of third party appeal in NZ has highlighted that the chances of bringing a successful appeal to the Court are marginal, but the democratic significance of the right is considerable. The existence of the right plays a significant role as it acts as a final check on decisionmaking, but there will always be a tension between private and public interests, and, as an obstacle to development, the right of third party appeal is vulnerable to limita tion. Furthermore, the resource management regime succeeds in balancing the administration, operation and effects of third party rights, and weighing these against what is in the public interest (which includes economic expediency).
When starting work on this investigation of the right of third party appeal, the author was sceptical about public involvement in planning and the right of redress for third parties working in unity. The research has demonstrated, however, that third party rights and the right of third party appeal can comp lement each other. It is concluded that the operation of the third party right of appeal in NZ landuse planning proves not only that the right plays a significant democratic role, but it can also be reconciled with effective decisionmaking.
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URL: http://www.nzlii.org/nz/journals/NZJlEnvLaw/2006/10.html