Obiter

Environment Court reform – more than the Court under threat?

A recent New Zealand Government Discussion Document “Improving Our Resource Management System” raises concerns as to costs, uncertainties and delays of the current resource management system affecting New Zealand jobs, infrastructure and productivity, and placing an unfair burden on communities.  The document (endorsed by the Minister for the Environment, Hon Amy Adams) acknowledges that the Environment Court has an important role in interpreting and applying policy, but states “the judiciary should not be placed in the position of having to determine values or policy – this role should be played by publicly accountable, elected representatives”.

In the public arena, suggestions have also been made that the Environment Court could be disestablished as a specialist Court. Presumably the Environment judges would, as District Court judges, be warranted to preside over Resource Management Act (RMA) cases in a similar manner as judges who sit on jury trials and in the Youth Court.

The wisdom of these proposals needs to be assessed.  Under the RMA, the Environment Court is not a traditional judge’s court, but a composite court comprising a judge and two environment commissioners.  The court is an expert court, well equipped to deal with complex planning, engineering, environmental, social and economic issues.   For example, the balance between protecting the environment and allowing primary industry development, urban sprawl, allocation of fresh water, discharge of contaminants, may raise highly complex issues. These issues may go beyond the capabilities of many “publicly accountable, elected representatives”.  The reform proposals appear to recognise that aspect, proposing appointed or independent hearing panels to consider submissions, but the appointment of such panels may of itself contradict the assumption of greater local accountability.

By way of comparison, the call-in procedure, requiring a tribunal or court presided over by an Environment judge to determine major projects, is testament to public confidence in the capabilities of the judges. Further the right to seek a direct referral of a plan change or consent to the Court is an acknowledgement of the need for high level assessment of merits.

In relation to delays and expenditure in the Environment Court procedures, it is useful to identify the main participants. First, local authorities, which prepare and administer district and regional plans, will normally become the respondents on any appeal. Secondly, infrastructure providers may be engaged in many appeals. These providers include the Crown and agencies such as the New Zealand Transport Agency,  utility companies, and council organisations.  Their activites may straddle local boundaries. Thirdly, primary industries, especially in the rural sector may contest plan rules and water allocation issues, and environmental matters affecting business interests.  Fourthly, developers and commercial and industrial operators may be seeking to establish facilities or to achieve a favourable zoning or rule framework that enables growth of their businesses and future development.  Fifthly, major environmental groups may consider the objective of environmental protection is not being adequately represented. The Parliamentary Commissioner for the Environment, constituted in 1986 as a system guardian, has been limited to the issue of reports on environmental matters and comment on legislative proposals. The PCE does not normally participate in regional or local plan-making or resource consent proceedings. The Environmental Protection Authority, established in 2011, has mainly administrative functions, and a decision-making role in relation to exploration within the continental shelf.  These functions may inhibit any ability to advocate for protection of the environment.

Beyond these traditional participants, local citizen groups, including heritage and business groups, may advance NIMBY issues regarding roads, developments, and building intensification within the neighbourhood.  Where the groups are well funded, appeals to the Environment Court are not uncommon.  Faced with this type of action, the local authority may concede the issues, and retract the plans to the detriment of the broader public interest.  In a sense, this is the type of local decision-making that is being advocated under the Discussion Document, but with a lesser role for the Environment Court as a ‘check’ against lobbying pressure. Finally, iwi, if resourced, may appeal matters to the Environment Court.  Iwi may claim a failure of consultation over proposals, cultural concerns, and lack of provision for environmental compensation; often being difficult issues for local authorities to resolve. Assertions over fresh water allocation and utilisation are a continuing issue.

In the majority of appeals, the Environment Court is merely the recipient of the claims, and cannot be held responsible for decisions to lodge appeals. Overall, only a minor percentage of procedures are appealed and  a smaller number go on to be heard.

In recent years, the Environment Court has implemented a formal procedure for all parties to appeals, if willing, to be referred to mediation.  The success of mediation processes, presided over by Environment Commissioners, has been significant, with over 50% of appeals being settled, and only (around) 20% of appeals filed with the Court requiring hearing time.  Of interest, mediation has been taken up by other courts at the High Court and District Court level, as an appropriate and efficient method of resolving legal disputes.  Further, mediation is essentially the basis of the “collaborative approach”, which has become fashionable following its exemplification through the Land and Water Forum.  The Environment Court should be acknowledged as one of the bodies at the forefront of such pragmatic resolution of complex environmental issues.

Digressing to the subject of affordable housing, development contributions, which may be imposed by territorial authorities under the Local Government Act 2002, were knowingly included in that Act for the purpose of avoiding appeals to the Environment Court. The alternate power to impose financial contributions under the RMA allows for appeals to the Court.  In the past, the Court has been able to assess the reasonableness of the latter contributions, and has reduced the levies where seen as excessive.  The Court cannot now be held responsible for the level of development contributions, which may be a significant factor in respect of affordable housing.

If the permanent Environment Court is disestablished, the high level of expertise of that court could be diminished.  Similar Environment or Planning courts have been established under Australian State laws to deal with appeals on resource consent matters. Special tribunals or hearings panels are also established to receive public submissions on council plan matters.  Applied to New Zealand, adoption of the Australian models could place a greater procedural burden and cost on local authorities as to hearings. Council level hearings may become more formal, as under the Auckland Unitary plan model where cross examination of witnesses could be allowed. This procedure may result in more lawyers being retained by submitters to present cases. Further, where a project may require a plan change and resource consents, the scope of appeal rights should be common to both procedures. The current reform proposals may not accommodate that situation.

The establishment or disestablishment of a court may involve constitutional issues. Any change to the Environment Court should be approached with caution, and the degree of restructuring should be the subject of in-depth research, transparency and timely public consultation. The judges of the Family Court and Employment Court have similar appointments until retirement.

Reform of the Environment Court could challenge the long tradition and reliance on specialist courts. Greater clarity is needed to identify the actual issues with the current structure; what would be gained by reform, and what might be lost. The benefits and costs to communities of funding a more formal council hearing model for plans and resource consents, should be assessed. The impact on the environment and economy from any reduction in quality decision making under RMA,must not be overlooked.