Notice of motion
Once the applicant has received the council report prepared under s87F(4), and the applicant wishes to proceed with direct referral, the applicant needs to lodge a notice of motion with the Court within 15 working days of receiving the council report. The lodging of a notice of motion effectively starts the Environment Court process.
A notice of motion is a written document which commences the case and informs the Environment Court and (when served) other parties that the applicant has lodged its application with the Court.
Section 281 of the RMA does not expressly allow for the Court to grant waivers for notices of motion which are lodged late. Therefore, if the notice of motion is not lodged within 15 working days, the application will not proceed to the Court and will fall back to the council for a decision.
The notice of motion must be lodged in the prescribed form specifying the orders sought and the grounds upon which the application is made. Refer to Form 31A Notice of Motion . A supporting affidavit about the matters giving rise to the application also needs to be included with the notice. The applicant’s legal adviser will generally prepare the notice and the affidavit. The applicant must lodge the original and one copy of the notice and supporting affidavits with the Court. However, the applicant is encouraged to liaise with the Court Registrar and/or case manager to see whether additional copies would assist the Court, i.e., if commissioners are also appointed by the Judge, extra copies of the documentation would be beneficial to the Court. The Court can advise the filing fee payable by the applicant.
At this stage it is advisable to indicate to the Court whether the applicant is interested in mediation.
As soon as reasonably practicable after lodging the notice with the Court, the applicant must serve a copy of the notice and affidavit on the council(s) that granted the direct referral request and every person who made a submission to the council on the application. The applicant must also tell the Court Registrar when these copies have been served on these parties. The Court will work with the applicant to remedy any issues with the format or content of the notice that are evident to the Registrar.
The role of council
The council is required to appear before the Court and speak to the section 87F(4) planning report. The council’s planning report is a key piece of information for the Court.
The council is automatically a party to the proceedings and must be available to attend the hearing to discuss or clarify matters in the report, give evidence to the Court about its planning report and any other relevant information.
Transfer of information from the council to the Environment Court
Once the council receives a copy of the notice of motion and affidavit (served on them by the applicant within 15 working days), the council must provide the Environment Court with the following information:
the application to which the notice of motion relates
the council report on the application
all the submissions received on the application
all the information and reports on the application that were supplied to the council, including any further information. This is interpreted as including all information supplied by the applicant to the council that forms part of the application such as the applicant’s assessment of environmental effects (AEE), development plans, any reports, and any information submitted in response to further information requests.
Section 87G(3) states that the council must provide this information to the Court ‘without delay’. Again, while ‘without delay’ is not defined in the RMA, this information should be transferred as quickly as possible so as not to hinder the process. Preparation for this information transfer should ideally begin before the applicant lodges the notice of motion. There is a small risk the applicant may not continue with the application to the Court, but maintaining open lines of communication with the applicant should minimise this risk.
The Court Registrar and/or case manager will liaise with the council to determine the format of this information (ie, hard and/or electronic copy) and the most practicable way to transfer it to the Court. The Court also needs to act promptly to avoid any unreasonable delay.
Where will the Court hearing be held?
Section 271 of the RMA requires the Environment Court hearing to be held as near to the locality of the subject matter to which the proceedings relate as the Court considers convenient, unless the parties otherwise agree.
The Court is responsible for disseminating information to all parties about the hearing location and timing. However, it would also be helpful for the council to make this information available through their website or some other means.
Environment Court case management
Once the notice of motion is lodged an Environment Judge will be assigned to the case and a case manager from the Court will be formally appointed. The key features of case management include:
planning the course of the proceedings, in consultation with the parties and counsel so the parties and counsel are aware of the events that will occur, and the likely time involved
the identification at an early stage of the issues in dispute and encouragement of settlement by negotiation (if appropriate), or the use of alternative dispute resolution (ADR) techniques under s268. If the Court orders ADR parties must participate unless leave is granted by the Court (s268A).
The Environment Court’s Practice Note 2014 contains more detailed information on case management.
The Environment Court has indicated the intention to contact all submitters with information about the proceedings and to advise them of the need to file a s274 notice with the Court should they wish to be a s274 party ( Form 33 ). Although there is now a filing fee of $100 for becoming a s274 party, that fee is exempt for direct referral proceedings.
As soon as practicable after proceedings are lodged, an Environment Judge must consider whether to convene a pre-hearing conference. A pre-hearing conference will ensure preparations are made for efficient, fair and ordered Court proceedings. The Court also occasionally uses the term ‘status hearing’ for a pre-hearing conference.
The Environment Judge can require any party who will be involved in the hearing to attend the pre-hearing conference or be represented by another person. At this meeting, directions may be given about preliminary questions, circulation of evidence, delivery of statements of evidence, and the timing and duration of the case.
Alternative Dispute Resolutions (ADR)
An alternative dispute resolution process (for example, mediation) is designed to facilitate the resolution of a matter. The Environment Court can (at their discretion) ask one of its members (or other person) to conduct an ADR process at any time after the lodgement of proceedings. Where the Court requires an ADR process, all parties must participate in the process or be represented by another person, unless the Court grants leave otherwise.
Currently, the Court expects the majority of applications on appeal to the Court to proceed to ADR. The Court has indicated this is also the expectation for direct referral cases. ADR can help parties identify common ground and define, narrow and resolve issues, which may negate the need for a hearing, or at the very least, reduce hearing time.
The timing of any ADR process will be at the discretion of the Environment Judge. However, it is expected ADR will not occur until the Court has read the submissions and council report, so the Judge has a clear idea of the topics for ADR. The Environment Court’s Practice Note 2014 contains useful information on alternative dispute resolution and the mediation process. The Ministry for the Environment’s An Everyday Guide: You, Mediation and the Environment Court also contains useful information about the mediation process.
Expert witness caucusing/conferencing
The Court is increasingly using and promoting expert witness caucusing/conferencing. The Court may direct that groups of expert witnesses confer to try to agree on matters in their field and to narrow the issues in contention. If and when this occurs in the proceedings is at the discretion of the Judge, but it generally occurs after the exchange of primary statements of evidence. Appendix 3 of Environment Court Practice Note 2014 provides a Protocol for Expert Witness Conferences and contains greater detail on expert witness caucusing/conferencing.
What is council’s role at the Court?
Potentially, councils can have a role as an applicant, and/or submitter and/or provider of expert witnesses/technical advisers or any combination of those roles at the Court. This is an unusual situation for councils to be faced with, which potentially presents conflicts. It is therefore important that the council roles are given thought to and defined early on and documented as to which staff, consultants and/or independent experts will be fulfilling each role. Possibly different delegations will also be required.
A particular area of difficulty is when a council may want to submit on an application. This is a similar scenario to the situation councils find themselves in when they are dealing with applications they have made themselves. As with those scenarios, the council should clearly convey which ‘hat’ they are wearing in the various documents they submit to the Court and other parties. This enables the Court to determine what weight to place on those documents and avoids any sense that the council is not being entirely transparent, or is obtaining any advantage due to its position as consent authority.
The Court expects council to have legal representation. If the council has different and conflicting roles/positions at the hearing (ie, consent authority and submitter with different views) then having separate legal counsel and expert advisers is advisable.
The Court supports the idea of a primary planning report with expert reports attached as outlined above. This approach makes it clear which expert contributed to the council report and easily allows for individual briefs of evidence to be developed. The Court has indicated that each of the people who have contributed to the report must be made available to the Court to participate in the proceedings, be able to speak to their report(s), and answer questions.
The Court may also call on the council witnesses to comment on any recommended consent conditions contained in the report and other recommended conditions which may emerge during the course of the hearing.
The order of proceedings will be outlined at the start of the case by the Judge, which will include when the council planning report will be heard.
A further issue for councils in appearing before the Court are the costs involved. However, there is an ability for a council to recover its costs for participation. The council can also recover its costs of being involved in a direct referral application after the application is referred to the Court. These are the costs of appearing as a party and giving evidence in relation to the planning report. Once the application is before the Court section 285 applies. The council can apply for a costs order to recover the costs of presenting the council report from the applicant.
What is the submitter’s role at the Court?
One key difference between a council hearing and a Court hearing is that submitters need to formally lodge a s274 notice with the Court in order to be involved in the Court proceedings (eg, pre-hearing conference and mediation), including appearing before the Court and speaking to their submission or evidence. If a s274 notice is not lodged, a submitter or anyone engaged to act on their behalf may not participate in the Court proceedings.
However, if the submitter does not lodge a s274 notice, their written submission will still be considered by the Court as it is part of the information transferred from the council to the Court and the submissions should have been summarised in the council report.
The need to lodge a s274 notice to be involved in the Court proceedings makes it important for submitters to give early thought as to whether they would like to speak to their submission or evidence before the Court or have others do it for them and be well prepared for this. If there are other submitters with the same issues, submitters may want to prepare and present a joint submission and have combined legal and expert representation, if required, to potentially save on both time and costs. If developing an original submission into evidence, the evidence needs to be within the scope of the matters raised in the original submission and the s274 notice. The anti-trade competition provisions as set out in Part 11A of the RMA also apply to parties seeking to be heard on matters of direct referral.
The council could also advise submitters of the requirement to lodge a s 274 notice when they send out the council report, although the actual date for lodging the notice (15 working days from the proceedings beginning) would not be known at this point.
To become a party to the proceedings, the submitter must lodge a s274 notice within 15 working days after the proceedings are commenced. After giving notice, the submitter must give the same notice to all other parties (ie other people who have lodged s 274 notices) within 5 working days after the deadline for giving notice to the Court.
The implications of being a s274 party before the Court differ to those of being a submitter before a council hearing. Being a s274 party does not necessarily mean there is an obligation to present a submission, produce evidence or cross-examine; however, there is the ability to do so. It also provides a right to participate in mediation.
Further information for submitters on the Court process is contained in the Information Sheet on the Ministry for the Environment website. The Environment Court website also has useful Guidelines for litigants in person about the Court procedure, including useful guidance on how to set out written statements of evidence.
Cross examination of witnesses
Cross-examination is not permitted in council hearings. However, before the Environment Court, all parties, including lay parties, have a right to cross-examine and may be subject to cross examination themselves. Nobody can be precluded from cross-examination; however the Judge will keep an order to proceedings to avoid time wasting and repetitive questioning.
The Environment Court decision
The Environment Court will issue the decision on the application to the applicant, the council(s), and all section 274 parties by post. It is also good practice for the Court to send the copy of the decision to all submitters, even if they did not become section 274 parties. In some instances, the decision may be issued in the form of a CD_ROM and/or sent as a PDF attachment via email. The Court may include supporting information with the decision and may refer to the relevant parts of the Court website.
Appeals from the Environment Court decision
Appeals from the Environment Court’s decision can be made to the High Court by the applicant and any party, but only on points of law and not findings of fact or decisions on the merits. Legal advice is recommended before considering an appeal.