Appeals to the Environment Court

  • Never underestimate how much time is involved with resolving appeals
  • Be proactive in attempting to resolve appeals - never rely on the apellant (or their advisors) as it may not be in their interest to resolve the matter speedily
  • Establish a process to manage appeals right from the beginning

    This should include:
    • Defining the types of appeals, and identifying the likely path of resolution and the priorities (note: sometimes apparently intransigent cases may actually be mediated to a solution - don't write anything off!);
    • Using a case manager approach, particularly for dealing with multiple submissions. A case manager can act for the council in dealing with the appellant and associated parties in resolving their allocated appeals, as well as being part of the plan project team and working with other case managers. Case managers must be good at organising and chasing up;
    • Establishing a database to monitor progress (either a separate "purpose-built" database, or, as some local authorities have done, adapting the submissions database to deal with appeals as well); and
    • Establishing a delegated authority process (for example, a small council subcommittee) to monitor progress and make decisions as required
  • It is not always easy to predetermine which appeals may be mediated to a resolution and which are irreconcilable and will end up before the Environment Court. Regular re-assessments may therefore be needed to review which route to pursue - mediation or hearing. At some point, a council may reach a "policy threshold", beyond which it is not willing to change any further. However, assessing the other parties' thresholds is not always possible. Such policy thresholds may also change over time: for example, a council may agree to a resolution that it initially refused, so that it may get a plan operative
  • Work closely with the Environment Court in managing appeals - a good working relationship should be established from the beginning in organising and progressing appeals
  • Ensure that correct and adequate mandates have been sorted out early - i.e. who is responsible for negotiation and who has the mandate to make decisions on behalf of Council (noting the restrictions on the ability to delegating decision-making powers under s34). If the two roles are separate, ensure regular liaison so that negotiated resolutions do not run the risk of being rejected by the decision-makers
  • If there are difficulties in maintaining progress on resolving appeals, sometimes direct communication with the appellant rather than their advisors can assist
  • Mediation is often the preferable way to resolve appeals rather than through Environment Court hearings. Court-appointed commissioners (drawn from the Court) are usually used to help mediate appeals
  • While council officers (and their advisors) normally have the authority to deal with the parties involved with appeals, it is often useful to involve councillors in the resolution of appeals, particularly the more significant ones with important policy implications. The final agreement on a resolution, however, should always rest with the council (or some delegated authority thereof) before it goes before the Environment Court
  • If the Court considers that an appealed provision needs amending, the Court can direct a local authority to redraft the provision. The council must redraft the provision in consultation with other parties, and then submit the final draft to the Court for confirmation. Occasionally, the resolution of an issue by the Court may have implications for other parts of the plan as well. For this reason, it is important the Court is fully aware of the wider policy context of some appeals, and the cross-linkages with other provisions and matters of consistency.