Is it possible to appeal against resource management decisions or plan change applications? Amanda Douglas of Wynn Williams & Co. outlines the circumstances and time frames for such appeals.
The recent High Court decision of Island Bay Residents' Association (Incorporated) v Wellington City Council [2000] 2 NZLR 737 has ramifications for anyone who wishes to take part in the process provided for in the Resource Management Act 1991.
The processes that the decision covers include appeals against resource consent decisions or plan change applications. You may wish to become involved in such a process because you are affected by a proposal near your home or work, or you may simply be interested in protecting certain aspects of the environment.
The Island Bay decision looks at section 271A2) of the Resource Management Act ("the Act"). It determines when people can still become involved in the Environment Court process. The Island Bay decision was about a zoning application which was appealed to the Environment Court. This is known as a "reference". The principles in the Island Bay decision are just as applicable to other Environment Court proceedings, such as appeals on resource consents.
When people have made a submission to the local authority on the original application, section 271A(1) of the Act provides for them to become a party to any Environment Court proceedings. They must advise the Court that they wish to be a party to the proceedings within 15 working days of receiving a copy of the notice of appeal.
Section 271A(2) almost acts as a back up provision. It states that, despite subsection (1), the original submitter may advise the Court up to 10 working days before a hearing begins, that they wish to be a party to the proceedings.
Commencement Of The Hearing
The main issue in Island Bay was when a hearing begins and the definition of the words "commencement of the hearing". The Island Bay Residents' Association sought to join a reference proceeding, brought by Mr Tse, under section 271A(2). The proceeding related to the Wellington City Council's decision to zone an undeveloped block of land owned by Mr Tse as "Open Space B". Mr Tse wanted his land rezoned as "Outer Residential Zoning".
The Environment Court met twice, by holding "callovers", to determine the status of the reference. The notice setting the date for the callover stated that everyone who wished to take part in the proceeding should attend or be represented at the callover. The Residents' Association took no steps to attend either callover, despite the notice having been sent to them. At the second callover, Mr Tse and the Wellington City Council indicated to the Court that they were likely to agree about how the reference should be resolved.
A hearing was set down for 27 July 1998. However, the Residents' Association still did not indicate an interest in the proceeding. On the hearing date, the parties advised the Court that the hearing time would not be required because the parties had reached agreement. The hearing was therefore adjourned.
A further notice of callover was then sent out in April 1999. For the first time, the Residents' Association filed a notice under section 271A(2). Later that month, Mr Tse and Wellington City Council requested that the Court resolve whether the Residents' Association had status in this proceeding.
The issue was then which of the appearances before the Environment Court, if any, constituted the beginning of the hearing. Given that the matter had been set down for hearing on 27 July 1999, but the hearing was not needed, the issue turned to whether that date constituted a hearing. This would mean that, to have status in the proceedings, the Residents' Association would have needed to have filed its notice 10 working days before that date.
The Environment Court concluded that "the hearing" was that set down for July 1998. This meant that the Residents' Association did not file its notice within the required time period, and therefore could not be heard in the proceeding.
The Residents' Association then appealed to the High Court, saying that the Environment Court had been in error in deciding that the appellant had not satisfied the requirements for achieving party status. Accordingly it contended that the Environment Court was wrong to decide that the Residents' Association's notice was of no effect.
The High Court found that for section 271A(2) to have meaning in the context of what actually occurs before the Environment Court, the words "the commencement of hearing" should be read as relating to the first call of the proceeding for hearing. The Court considered that any other meaning would cause confusion and difficulty. In the opinion of the Court, the legislature could not have intended there to be a series of opportunities for a prospective party to join the proceedings depending on what occurred at the first callover.
The High Court added that the Environment Court, the parties, and others seeking to be heard require clarity and certainty as to when notice has to be given for the purposes of section 271A(2). The High Court considered that the interpretation adopted by the Environment Court in this case was the only clear interpretation.
The Court said that once the Environment Court has given notice of hearing of a particular matter and the matter is called after that, the hearing can be treated as having commenced for the purposes of the section.
The Court recognised the fact that the policy of the Resource Management Act 1991 is to encourage the participation of interested parties. However, it noted that there is a limit on the opportunity given to interested parties to participate. Section 271A(2) itself is remedial in that it extends the time for interested parties to become involved in the court process. The High Court was of the opinion that it was not necessary to further stretch the meaning of the words in that subsection.
The Court's Findings
The decision of the High Court, therefore, was that the "commencement of the hearing", for the purposes of section 271A(2) is the time and date upon which the proceeding is called in accordance with the first notice of hearing for it. In the Island Bay decision, this was the hearing held on 27 July 1998.
How It Affects You
To register an interest in a matter before the Environment Court, you should complete the prescribed form or write a letter to the Registrar of the Environment Court in Wellington. To be entitled to become a party under section 271A, you should have made a submission when the application was first made to the responsible council. It is also a good idea to send a copy of your notice to the other parties involved in the proceeding, so that they involve you in the process.
As a result of the High Court's decision, it is important that anyone who is interested in a resource management matter that is before the Environment Court registers their interest with the Court promptly. The best way to ensure that you can be involved in the proceedings is to lodge your notice as soon as you become aware that the matter is before the Environment Court. This avoids any confusion in the long run. It also assists the other parties in the proceeding, who will know to involve you in any discussions or evidence exchange that may take place before any hearing.
Copyright The Lawlink Group Ltd 2000
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
Amanda Douglas is a solicitor with the Christchurch Lawlink firm of Wynn Williams & Co. She specialises in resource management and civil litigation.
Email: amanda.douglas@wynnwilliams.co.nz
Web site: Wynn Williams & Co
December 2000
The recent High Court decision of Island Bay Residents' Association (Incorporated) v Wellington City Council [2000] 2 NZLR 737 has ramifications for anyone who wishes to take part in the process provided for in the Resource Management Act 1991.
The processes that the decision covers include appeals against resource consent decisions or plan change applications. You may wish to become involved in such a process because you are affected by a proposal near your home or work, or you may simply be interested in protecting certain aspects of the environment.
The Island Bay decision looks at section 271A2) of the Resource Management Act ("the Act"). It determines when people can still become involved in the Environment Court process. The Island Bay decision was about a zoning application which was appealed to the Environment Court. This is known as a "reference". The principles in the Island Bay decision are just as applicable to other Environment Court proceedings, such as appeals on resource consents.
When people have made a submission to the local authority on the original application, section 271A(1) of the Act provides for them to become a party to any Environment Court proceedings. They must advise the Court that they wish to be a party to the proceedings within 15 working days of receiving a copy of the notice of appeal.
Section 271A(2) almost acts as a back up provision. It states that, despite subsection (1), the original submitter may advise the Court up to 10 working days before a hearing begins, that they wish to be a party to the proceedings.
Commencement Of The Hearing
The main issue in Island Bay was when a hearing begins and the definition of the words "commencement of the hearing". The Island Bay Residents' Association sought to join a reference proceeding, brought by Mr Tse, under section 271A(2). The proceeding related to the Wellington City Council's decision to zone an undeveloped block of land owned by Mr Tse as "Open Space B". Mr Tse wanted his land rezoned as "Outer Residential Zoning".
The Environment Court met twice, by holding "callovers", to determine the status of the reference. The notice setting the date for the callover stated that everyone who wished to take part in the proceeding should attend or be represented at the callover. The Residents' Association took no steps to attend either callover, despite the notice having been sent to them. At the second callover, Mr Tse and the Wellington City Council indicated to the Court that they were likely to agree about how the reference should be resolved.
A hearing was set down for 27 July 1998. However, the Residents' Association still did not indicate an interest in the proceeding. On the hearing date, the parties advised the Court that the hearing time would not be required because the parties had reached agreement. The hearing was therefore adjourned.
A further notice of callover was then sent out in April 1999. For the first time, the Residents' Association filed a notice under section 271A(2). Later that month, Mr Tse and Wellington City Council requested that the Court resolve whether the Residents' Association had status in this proceeding.
The issue was then which of the appearances before the Environment Court, if any, constituted the beginning of the hearing. Given that the matter had been set down for hearing on 27 July 1999, but the hearing was not needed, the issue turned to whether that date constituted a hearing. This would mean that, to have status in the proceedings, the Residents' Association would have needed to have filed its notice 10 working days before that date.
The Environment Court concluded that "the hearing" was that set down for July 1998. This meant that the Residents' Association did not file its notice within the required time period, and therefore could not be heard in the proceeding.
The Residents' Association then appealed to the High Court, saying that the Environment Court had been in error in deciding that the appellant had not satisfied the requirements for achieving party status. Accordingly it contended that the Environment Court was wrong to decide that the Residents' Association's notice was of no effect.
The High Court found that for section 271A(2) to have meaning in the context of what actually occurs before the Environment Court, the words "the commencement of hearing" should be read as relating to the first call of the proceeding for hearing. The Court considered that any other meaning would cause confusion and difficulty. In the opinion of the Court, the legislature could not have intended there to be a series of opportunities for a prospective party to join the proceedings depending on what occurred at the first callover.
The High Court added that the Environment Court, the parties, and others seeking to be heard require clarity and certainty as to when notice has to be given for the purposes of section 271A(2). The High Court considered that the interpretation adopted by the Environment Court in this case was the only clear interpretation.
The Court said that once the Environment Court has given notice of hearing of a particular matter and the matter is called after that, the hearing can be treated as having commenced for the purposes of the section.
The Court recognised the fact that the policy of the Resource Management Act 1991 is to encourage the participation of interested parties. However, it noted that there is a limit on the opportunity given to interested parties to participate. Section 271A(2) itself is remedial in that it extends the time for interested parties to become involved in the court process. The High Court was of the opinion that it was not necessary to further stretch the meaning of the words in that subsection.
The Court's Findings
The decision of the High Court, therefore, was that the "commencement of the hearing", for the purposes of section 271A(2) is the time and date upon which the proceeding is called in accordance with the first notice of hearing for it. In the Island Bay decision, this was the hearing held on 27 July 1998.
How It Affects You
To register an interest in a matter before the Environment Court, you should complete the prescribed form or write a letter to the Registrar of the Environment Court in Wellington. To be entitled to become a party under section 271A, you should have made a submission when the application was first made to the responsible council. It is also a good idea to send a copy of your notice to the other parties involved in the proceeding, so that they involve you in the process.
As a result of the High Court's decision, it is important that anyone who is interested in a resource management matter that is before the Environment Court registers their interest with the Court promptly. The best way to ensure that you can be involved in the proceedings is to lodge your notice as soon as you become aware that the matter is before the Environment Court. This avoids any confusion in the long run. It also assists the other parties in the proceeding, who will know to involve you in any discussions or evidence exchange that may take place before any hearing.
Copyright The Lawlink Group Ltd 2000
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
Amanda Douglas is a solicitor with the Christchurch Lawlink firm of Wynn Williams & Co. She specialises in resource management and civil litigation.
Email: amanda.douglas@wynnwilliams.co.nz
Web site: Wynn Williams & Co
December 2000
June, 2001
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