Appendix B: Environment Court practice notes
These notes have been issued by the Environment Court. They are a guide to practice in the Environment Court generally. They are not to be seen as inflexible rules, but should be followed unless there is good reason not to.
Appeals lodged out of time
1. On receiving a notice of appeal, if it appears to the Registrar that the appeal is out of time, the Registrar will record it as having been received subject to the Court having jurisdiction to hear and determine it, and advise the parties accordingly.
2. If a waiver is required 1, an application should be made accordingly 2. If written consents of the respondent and the applicant for resource consent (if any) are lodged with the Registrar, an extension of time for lodging and/or serving the appeal will normally be granted as of course.
3. Until a waiver is granted, any party may apply for an order that the appeal be dismissed on the ground that it has been lodged or served out of time.
Waiver of service of annexures
4. Because all parties and submitters would normally have the primary decision and where applicable, the relevant resource consent application, an appellant or referrer may, after listing the annexures required by the regulations, subscribe to a notice of appeal or reference an application under section 281 of the Act for waiver of service:
(1) In the case of an appeal under section 120 of the Resource Management Act, of the resource consent application and the respondent’s decision;
(2) In the case of a reference under the First Schedule, the respondent’s decision.
5. Although no decision on the waiver application has been made, the appellant or referrer is, within the prescribed time, to serve the notice of appeal or reference without the annexures for which waiver is sought.
6. The Court will decide the waiver application either on the papers or at the first call of the proceeding.
Multiple consents required
7. Where a development proposal requires resource consent under more than one enactment in respect of which the Court has jurisdiction, for example, a land use consent and a discharge permit, the Court will normally postpone hearing an appeal under one of the enactments until after the first-instance decision under the other enactment has been given.
8. If appeals are lodged under more than one enactment which relate to the same proposal, the Court will normally hear those appeals together.
9. Where circumstances referred to in paragraphs 4 or 5 arise, the applicant for the consents should inform the Registrar without delay.
Case management
10. Shortly after being registered, applications and appeals are shown to an Environment Judge for case management. That may include —
- directions to include the proceedings in a callover list.
The party initiating the proceedings should therefore ensure that the Court is full informed of circumstances that may make directions of any of those kinds appropriate or not.
Mediation
11. In accordance with section 268 of the Resource Management Act, the Court encourages parties to consider mediation and other additional dispute resolution procedures. If the parties to proceedings before the Court desire to have an Environment Commissioner act as mediator to assist them to try and reach agreement on the matters in dispute, they should inform the Registrar as early as possible.
However no party is obliged to submit disputes to mediation, and parties to proceedings within the Court’s jurisdiction are entitled to adjudication of them. Nor can mediation force a result on anyone. The outcome will only be binding on the parties if it is agreed to by all of them and (to the extent necessary) if the Court makes an order giving effect to it.
Prehearing conferences
12. At the request of any party or on the Court’s initiative there may be a prehearing conference of the parties or their representatives as contemplated by section 267 of the Resource Management Act. The purpose of the conference is to ensure that proper preparations are made for the fair, orderly and efficient hearing of the proceedings. Directions may be given about disposal of preliminary questions, delivery of statements of evidence, and time and duration of the hearing of the case.
Any request for a conference should state any particular matters which the party requesting it proposes should be considered at the conference. Any party who intends to take part in the hearing of the proceedings should attend the conference or be represented at it by someone who is familiar with the part to be taken and the submissions and evidence to be made.
Callovers
13. Callovers of numbers of proceedings are held from time to time. The purpose of callovers is for the parties to inform the Court of the status of the proceedings. A callover allows opportunity for proceedings to be withdrawn; or (following settlement of issues) for consent orders to be proposed for disposal of the proceedings; or for directions to be sought and given in preparation for hearing of the proceedings including disposal of preliminary questions, timetables for delivery of evidence, and the time of hearing of the case.
Setting down appeals for hearing
14. The Court has a statutory duty to hear and determine every appeal as soon as practicable after it is lodged unless circumstances warrant otherwise. Consequently, the Registrar will, without prior reference to the parties, issue a notice of hearing as soon as an opportunity presents itself for an appeal to be heard. Therefore, if there are reasons in any particular case why the hearing of an appeal should be deferred, the Registrar should be informed by one of the parties as soon as those circumstances arise.
Subject to paragraph 4 of this practice note, the Court will not usually defer the hearing of an appeal against the grant of a resource consent if the successful applicant for that consent opposes the deferment.
Priority hearings
15. In the normal course, and as far as practicable, the Court hears proceedings in the order in which they were commenced. If a party in any proceedings seeks that those proceedings be heard earlier, an application for a priority fixture may be made. Any such an application should show reasons (if appropriate by reference to contents of an affidavit) why those proceedings should be heard in priority to other proceedings commenced earlier, either in the public interest or in the justice of the particular case, such as where waiting their turn would negate the point of the proceedings.
Where there are competing applications for the same resource, the Court considers priorities before the primary decision-maker. The parties should advise the Court when the case would be ready for hearing and the likely duration of the hearing. Unless the other parties signify consent or non-opposition to the priority application, the application should be served on them in the normal way.
Adjournments
16. If after notice of hearing of an appeal has been given, the parties want an adjournment, they should communicate with the Registrar immediately, stating the grounds for the adjournment. However, such an adjournment request, though by consent, may not necessarily be granted. If an adjournment is sought at a late stage, the Court may order payment of costs to the Crown.
Withdrawals and consent orders
17. If any matter is proposed to be withdrawn, or disposed of by consent order, the parties are to notify the Registrar as soon as that course of action is reasonably certain. If the text of a proposed consent order is submitted in writing signed by or on behalf of all parties, with a sufficient explanation of what is proposed and why, appearances may be dispensed with. Otherwise, when seeking a consent order a copy of the proposed order and supporting explanation is to be made available for each member of the Court sitting.
Witness summonses
18. To avoid the late summoning of a witness being oppressive, the Court prefers that witness summonses be served no later than 10 working days before the date of hearing. Except where the witness would attend willingly, and the issue of a summons is a matter of form, the Court will not normally issue a witness summons less than 5 working days before the date of hearing.
Statements of evidence
19. The Court requires that copies of a statement of the evidence (including photographs and other visual presentations other than models) of a witness are to be provided by the party calling the witness to all other parties prior to the hearing of the proceedings. In some cases special directions are given about the time when the statements of evidence are to be delivered to the other parties. In every case where no special direction has been given, statements of evidence are to be delivered no less than 5 working days before the hearing is to start.
If copies of a statement of evidence are not delivered in time, leave will need to be sought to call the witness, and the failure to comply will need to be explained. Leave to call the witness may be refused, or the party in default may be ordered to pay the costs of adjournment incurred by other parties and by the Court.
Exhibits
20. All exhibits, including photographs and other visual presentations, are expected to be presented in a practical and manageable form. By way of example, photographs should be separately mounted and identified. A bundle of documents, or a series of photographs, should be presented in a folder or booklet.
If a photograph, or other visual presentation, is of a size or kind that it is not practical to provide copies to other parties, it will suffice for the party intended to produce it at the hearing to notify the other parties not less than 5 working days prior to the hearing where it may conveniently be inspected.
Planning instruments, maps, etc
21. On a reference under clause 14 of the First Schedule to the Resource Management Act 1991, or on an appeal under section 120 of that Act arising from an application for resource consent, the respondent should bring to the hearing sufficient copies of the relevant regional and district plan(s) for the use of members of the Court during the hearing. The Court may need to retain a copy for reference in its deliberations and in the preparation of its decision.
22. In the case of appeals lodged under other enactments too, the Court expects to be provided with copies of the relevant instruments or subordinant legislation.
23 The respondent should also bring to the Court hearing all documents, maps, plans, and other exhibits relating to the proceedings that are in its custody.
Procedure at appeal hearings
24 The Court usually conducts an appeal against a decision on an application for a consent, approval or permit as a complete rehearing afresh. When hearing such an appeal the Court will normally call first upon the person who applied for the consent, approval or permit to state his or her case and then to adduce the evidence in support of it, followed by the cases of those who support the grant.
Next it will call upon the body whose decision is appealed against to present its case. Then it will call upon those parties who oppose the grant of the consent, approval or right to present their cases, followed by the cases of parties who oppose the grant.
25. On a reference under clause 14 of the First Schedule to the Resource Management Act, the Court will normally call first upon the party who is proposing to alter the status quo, to state his or her case and adduce evidence. (This practice does not imply that there is a burden of proof on that party.)
If in respect of a particular reference or group of references it appears that it will be helpful for the Court to call first upon the council to outline the background circumstances (but reserving its other submissions and its evidence) before calling upon the applicants or other parties who would ordinarily commence, the Court may so direct, either of its own motion or on the application of any party. (This may apply even when references in a group are not to be heard together.)
26. Where there is indeed a burden of proof upon a particular party, the Court will usually call first upon that party to state his or her case and adduce evidence.
27. The Court expects that when parties state their case in opening, they will outline the circumstances of the case and the nature of the evidence to be called, state the resource management factors relevant to their case, and state the legal principles upon which they rely. A party generally has only one opportunity to address the Court.
28. Evidence-in-chief will normally be given by the witness reading a typed statement of evidence, of which 4 copies are to be made available for the use of the Court, and additional copies for the other parties.
Four copies of exhibits and graphic presentations, such as documents or photographs, should be produced where practicable. Where matters of primary fact are in issue, the Court may require evidence in- chief to be given in viva voce examination by question and answer, avoiding leading questions.
Presentation of evidence
29. The Court does not normally allow an opportunity to address in reply to parties who have, before opening their cases, heard all the evidence to be given by the parties in opposition to them. After all the evidence has been taken, the parties who stated their cases and adduced their evidence before hearing the cases and evidence of those parties opposed to them, may have a separate opportunity to address the Court in reply to the opposing cases. That opportunity will be confined strictly to replying to those cases, and is not an opportunity to reiterate that party’s case as such. Persons who appear solely in support of a principal party are not normally allowed a separate opportunity to reply.
30. The foregoing paragraphs 21-26 outline the Court’s general practices. However the Court has power to regulate its procedure in such manner as it sees fit. It may therefore modify its procedure in particular cases if the interests of justice and the orderly and logical presentation of evidence so require.
31. Where an appeal is withdrawn after having been set down for hearing the Court will normally award costs against the appellant in favour of the other parties in respect of their preparation for hearing. Particulars of the claim should be given by the party applying for costs.
Opposing applications
32. Any person who is entitled and wishes to be heard on an application referred to in regulation 30(4) is to give notice to the Registrar and the applicant of–
- their address for service.
Costs
33. If a request for withdrawal of an appeal or other matter is made by letter, an application for costs may be made by letter, with a copy being sent to the appellant so that he may have an opportunity to reply.
34. Where a reference under clause 14(1) of the First Schedule to the Resource Management Act 1991 has proceeded to a hearing, costs will not normally be awarded to any party. But if the action appealed against would impose an unusual restriction upon the applicant’s rights, and the restriction is not upheld, costs may be awarded against the respondent. On other appeals the Court will not normally award costs against the public body whose decision is the subject of the appeal.
35. One factor which will be relevant in considering whether to order payment of costs, and in fixing the amount of an award, will be whether any party has been required to prove undisputed facts which, in the Court’s opinion, should have been admitted by other parties. In particular, a party may avoid liability for the costs of other parties proving undisputed facts by lodging and serving a statement specifying which of the statements or findings of fact contained or referred to in the respondent’s decision the party admits, and which of them the party requires to be proved at the appeal hearing. Any such statement should be made within 15 working days of receipt of the respondent’s reply.
36. Where, in giving the decision on an appeal, the Court considers that costs should be awarded, it will either fix a specific sum in its decision, or will indicate its willingness to make an order concerning costs, and reserve its decision on the amount of the award. The Court may also simply reserve costs without indicating whether or not an award will be made. In the latter two instances, those claiming entitlement to costs should make their claims by letter, supported by particulars, or in the manner requested by the Court in its decision.
37. Once a final determination has been made on particular proceedings, the Court’s function is at an end. Consequently, if any party wishes costs to be reserved, the matter is to be raised before the conclusion of the hearing, so that the question of costs may be considered when the Court comes to deliberate upon the outcome of the case.
Communicating with the Court
38. Where a party to proceedings before the Court seeks to communicate with the Court on any matters relating to the merits of the case or its outcome, otherwise than in open court in the course of a hearing or at a judicial conference duly convened, such communication shall be by way of a memorandum filed with the Registrar and served on other parties, so that such other parties may have the opportunity to respond in like manner. It is generally inappropriate to seek to communicate with the Court after a hearing has concluded and prior to the issue of the Court's decision.
Replacement of practice notes
39. These practice notes replace previous practice notes issued by the Planning Tribunal and by the former Town and Country Planning Appeal Boards, which are hereby revoked.
Case management in the Environment Court
Practice Note (under section 269 Resource Management Act 1991)
Introduction
[1] This practice note is to be read with the Environment Court’s practice note issued in June 1998 [1998 NZRMA 282] provided that if any conflict should arise, this practice note is to prevail.
[2] This practice note comes into force on 30 April 2004.
Case management objectives
[3] Consistent with the circumstances of each case, the objects of case management by the Court are to:
The concept of case tracks
[4] The Court’s principal methods of case management are as follows -
[5] The case management tracks are thus describable in brief as:
- Parties’ Hold;
The essential features of case management
[6] Identification, at an early stage, of the issues in dispute and encouragement of settlement by negotiation, or the use of additional dispute resolution (ADR) techniques, bearing in mind section 268 of the Resource Management Act 1991.
[7] Planning the course of the proceedings soon after commencement, in consultation with the parties and counsel, so that the parties and counsel are aware of the events that will occur, and the likely time and cost involved.
[8] Reduction in the delay and expense of interlocutory processes.
[9] The application of Court supervision for more complex cases through directions and conferences, timed to occur at critical points in the progress of those cases where such supervision is required.
[10] Monitoring parties’ performance in ensuring that events occur as time-tabled; that orderly progress towards conclusion results; that parties’ preparation is facilitated; and prompt settlement is encouraged.
Management tracks
[11] All cases, on filing, are assigned by a Judge or the Registrar to one of the management tracks, and the parties notified.
[12] Cases may be transferred at any time from one track to another, where circumstances warrant, by order of the Court (whether upon application by a party or not). Any request for transfer will be considered at the next conference or upon an application made for that purpose.
[13] Proceedings that require priority attention, including applications for enforcement orders (including interim enforcement orders) and for priority proceedings under Part XII of the RMA, have tailored case management applied according to the needs of each case. Such proceedings will usually be placed in, or moved to the Complex track.
[14] Where an application for priority hearing is granted, the proceedings will be automatically moved to the Complex track for case management purposes.
The essential features of the Standard track
[15] This track includes most section 120 appeals, few (if any) plan appeals, non-urgent declaration applications and other miscellaneous proceedings. The features of Standard track case management are:
[16] If any party fails to co-operate with the reporting party in order to assist preparation of the report, the reporting party is still required to lodge the report in any event, against the background of consultation with those parties who do co-operate, within the time prescribed. If any party has failed to cooperate with the reporting party as above without reasonable excuse, or any party otherwise fails to comply with the Court’s directions applicable to that party, sanctions and other steps will be considered and invoked by the Court as appropriate.
The parties’ hold track
[17] Cases will automatically be placed in the Parties’ Hold track (unless the managing Judge otherwise directs) in circumstances such as where parties are not actively seeking a hearing - for example, to negotiate and/or mediate, or where a plan variation or change is promoted by a local authority.
[18] However, there does need to be some judicial oversight so that progress occurs; and cases may be set down for a judicial conference at a Judge’s direction or upon written application.
The essential features of case management under the complex track
[19] This track applies to more complex or urgent proceedings - that is, most plan appeals and more complicated section 120 appeals (for instance, where there are multiple parties or complex factual or legal issues); also to proceedings that require priority attention, including applications for enforcement (including interim enforcement orders) orders, and other priority proceedings under Part XII of the Act. Given that most plan appeals in practice settle, reasonable opportunity is needed for parties to consider settlement, and, if necessary, to move the proceedings to the Parties’ Hold track. Further, it is recognised that a local authority will need time to analyse and categorise plan appeal proceedings and supply information about that to the Court in summary form.
[20] The essential feature of the Complex track is that cases (or sets of related cases) will be managed on an individual programme as set by the managing Judge.
[21] When judicial management is required the Court’s role will include the following:
- periodic monitoring of the progress of litigation to see that timetables are being followed.
[22] Except in the case of the statutory or regulatory time limits (which, if not met, may result in an application for waiver being considered under section 281), time limits and other controls and requirements are fixed after consideration of parties’ views, and are subject to revision when warranted by the circumstances. Once having established a programme, however, the managing Judge expects schedules to be met. Failing adherence, sanctions and other steps for derelictions and dilatory tactics will be considered and invoked by the Court as appropriate.
