What are the Underlying Principles

The Environment Court has developed a statement of principles for consultation. These principles have been primarily developed through case law relating to resource consents and notices of requirement.

The Environment Court's statement of principles for consultation are:

  • The nature and object of consultation must be related to the circumstances.

  • Adequate information of the proposals is to be given in a timely manner so that those consulted know what is proposed.

  • Those consulted must be given a reasonable opportunity to state their views.

  • While those consulted cannot be forced to state their views, they cannot complain, if having had both time and opportunity, they for any reason fail to avail themselves of the opportunity.

  • Consultation is never to be treated perfunctorily or as a mere formality.

  • The parties are to approach consultation with an open mind.

  • Consultation is an intermediate situation involving meaningful discussions and does not necessarily involve resolution by agreement.

  • Neither party is entitled to make demands.

  • There is no universal requirement as to form or duration.

  • The whole process is to be underlain by fairness.

These principles can be further drawn on from other decisions of the Court to include that:

  • there is an overall duty on the part of both parties to act reasonably and in good faith, because consultation is not a one-sided affair

  • consultation has overlapping requirements of reasonableness, fairness, open mind, freedom from demands, and the need to avail oneself of the consultation opportunity

  • consultation is as much about listening as it is about imparting information, and is more about the quality of information imparted than it is about the quantity

  • consultation is not an end or an obligation in itself, it is just one possible method of gathering views from those affected so that they can be taken account of in the decision-making process. The primary obligation is to ensure that the decision-maker has sufficient material before it to make the necessary decisions about Part 2 issues.

Councils also have to consider how consultation principles under the Local Government Act 2002 are addressed when undertaking consultation on resource consent matters.