Report No. 186

New Zealand:

The N.Z. Environment Court was established under the Resource Management (Amendment) Act, 1996 by amending the 1991 Act and it replaced the former Planning Tribunal. Prior to the introduction of the Resource Management Act, 1991 (RMA), the statute that applied was the New Zealand's Town and Country Planning Act, 1977 which was based on the British Model. (A detailed account by Mr. Mark Southgate is available from the Supplementary Memorandum published by the Royal Society (UK) (2000) for the protection of Birds (PI. 19(a)) and is adopted hereunder (with minor changes) in view of its precise and correct assessment of the provisions of the New Zealand Act).

The Environmental Court in New Zealand under the Amendment Act of 1996 is an independent specialist Court consisting of Environment Judges (who are at the level of the District Judge) and the Environment Commissioners (technical experts). They are appointed for a period of five years each time by the Governor-General on the recommendation of the Minister of Justice.

In appointing the Judges and Commissioners, the Governor-General is to have regard to the need to ensure a mix of knowledge and experienc.- including commercial and economic affairs; local government; community affairs; planning and resource management; heritage protection; environmental science; architecture; engineering; minerals; and alternative disputes resolution processes.

The Environment Court encourages mediation and arbitration and a high proportion of cases are resolved by such agreement, usually presided by an Environmental Commissioner alone. However, all such agreements are not given effect unless they have been looked at by the Court, which may alter the settlement. Where adversarial processes do occur in the Court, they are primarily aimed at developing high quality information to allow the Court to reach a decision.

The New Zealand Environment Court usually consists of one Environmental Judge and two Commissioners.- except in enforcement proceedings which are matters of law and are presided over by a Judge alone. (Even under the NSW Act of 1979, enforcement is always by the Judge or with his consent).

The New Zealand Environment Court is not bound by rules of evidence and it is free to establish its own rules of procedure. Consequently, the proceedings are often less formal than those in other Courts. Lawyers do normally represent the parties but anyone may appear in person and the Court encourages individuals and groups to represent themselves.

The right of appeal, on resource-consent decisions, to the Environment Court extends to any person who makes a submission on that consent, i.e. to third parties, and to applicants. Third parties may also apply to the Court for an order to enforce the RMA against anyone else. The Environmental Court decisions may be appealed to the High Court on questions of law only.

The Environment Court of New Zealand also hears references on regional and district statements and plans (development plan equivalents) and appeals from resource-consents (planning application equivalents); it can make declarations, i.e. interpret the law; and it can enforce the RMA through Civil or Criminal proceedings. Local authorities are obliged to make necessary amendments in the plans to give effect to the Court's decisions.

Decisions by the Court on consents given by local authorities can be taken afresh, after taking new evidence. The Court's duties include avoiding, remedying or mitigating adverse effects on the environment and a general duty to promote sustainable management, in accordance with the RM Act.

Even policy judgments and decisions are the 'daily diet' of the New Zealand Environmental Court as stated by Mr. B. Birdsong in his Oxford Fellowship Report (1998), Auckland, on "Adjudicating sustainability (1998) New Zealand's Environment Court and the Resource Management Act."

On the positive side, the N.Z. Environment Court provides environmental expertise, both legal and technical, and a track record of environmental decision-making, in public interest. The Court has also a duty to promote sustainable management when hearing cases afresh, as stated in the Act. The environmental expertise would help address the need for greater environmental expertise within the Inspectorate also in certain planning cases.

Another advantage is that the Court itself hears cases relating to enforcement and views breaches of environmental legislation seriously. It can impose and does impose significant fines. It can also hear enforcement cases referred to it by third parties.- enforcement is not at the discretion of the local authorities, as it is in the UK. In fact, the criticism of the Magistrate's Courts in UK and other Courts is that sometimes they fail to impose appropriate punishment for breaches of planning control or environmental legislation. The seriousness of environmental offences are better appreciated by Environmental Courts in New Zealand.

The NZ Act encourages alternative dispute resolutio.- e.g. Mediation, conciliation or other procedures to facilitate the resolution of disputes before the initial hearing of the case. These provisions have proved very successful.

However, there is some criticism of the Court's power to impose costs against unsuccessful parties but imposition of costs is a normal feature of litigation except where plans or policy statements or public interest is involved. It is however pointed out by critics as to why costs could go as high as $8,500 upto $20,000, and that for that reason threats by developers about costs could discourage genuine objections. The criticism against taking a vast range of evidence is not correct because the experts on the Bench could always cut short unnecessary evidence.

The 1999 Amendments to the New Zealand Act of 1991, have been summarized as follows: (See Angelo Rego). The Bill was aimed to address several components of the law. Firstly, it was designed to reduce unnecessary delays and costs in the procedure without undermining the objectives. Secondly, there are a number of provisions relating to heritage and archaeology, which recognize the protection of historic heritage as a matter of national importance and brings archaeological controls from the NZ Historic Places Act, 1993.

In addition to this, the Bill aims at strengthening the national environmental standards and national policy statement provisions. The Bill introduces a new definition of 'environment' which focuses more closely on the biophysical environment and narrows the human element to health, safety, amenity and cultural values.

Three other important amendments are those relating to the 'resource consent processing', the 'direct referral to the Environmental Court' and the 'use of Environment Commissioners' to hear cases and take decisions. These changes allow applicants to choose whether their applications will be 67processed by the Council or by a private consent processor and to have complex or contentious applications referred directly to the Environmental Court. Applicants and those who oppose applications will also be able to choose whether they want the Council or an independent commissioner to hear the case and make the decision. This was designed to improve the impartiality of decision-making and remove any appearance of bias or conflict on the part of the decision-maker.

The NZ Bill was introduced in the House in July 1999, and the Report of the Select Committee came on 8.5.2002, and further changes were suggested by the Report of the Business-compliance-Costs Panel, Government announced further changes.

The NZ Resource Management Act, 1991 consists of 433 sections and 11 Schedules and consists of 15 parts. After Parts 1 to 10, we have the Environmental Court in Part II (sections 247 to 308). Part 11 deals with 'Declarations, Enforcement and Ancilliary Powers' (section 309 to 343D).

There are in all 110 sections from section 297 to 343D which deal with the Environmental Court, as per the 1999 Amendment to the NZ Act of 1991. We shall briefly refer to some of the sections and to the sub headings in Part 11 and 12.

Section 247 names the erstwhile Planning Tribunal as the Environment Court, section 248 deals with its Membership, section 249 with the eligibility for appointment as an Environment Judge or alternate Environment Judge; section 250 deals with the appointment of not more than 8 68such Judges. Basically they are District Judges in service; section 251 deals with the Principal Environment Judge. Section 252 states when an alternate Environment Judge may act.

Environment Commissioners and Deputy Environment Commissioners are contemplated by the Act. Section 253 refers to their eligibility. It states that the Environment Commissioner must have knowledge and experience in

(a) Economics, commercial and business affairs, local government, and community affairs;

(b) Planning, resource management and heritage protection;

(c) Environmental sciences, including the physical and social sciences;

(d) Architecture, engineering, surveying, minerals technology, and building construction;

(da) Alternate dispute resolution processes;

(e) Matters relating to Treaty of Waithangi & Kaupapa Maori, and section 254 refers to the appointment of a Commissioner for not more than 5 years. Section 255 mentions when a Deputy Environment Commissioner may act. Section 256 with the oath of office for the Commissioner or Deputy Commissioner.

Sections 257, 258 deal with procedure for resignation and removal of members by the Governor-General, including the Judge for inability or 69misbehaviour. Removal of a Judge will not amount to cancellation of his appointment as a District Judge.

Section 259 refers to special advisors, section 260 to 'officers of the Environment Court' i.e. Registrar and other offices. Section 261 refers to 'Protection from legal proceedings'. Section 262 refers to members of the Environment Court who are rate-payers and it is made clear that it is not a disqualification to be a rate-payer if one is proposed to be appointed to the Environment Court. Section 263 deals with remuneration of Environment Commissioners and special advisors. Section 264 refers to Annual Report of Registrar to be submitted to the Minister concerned in charge of Courts.

In the NZ Act, procedure of the Environment Court is dealt with separately. Section 265 refers to the sittings of the Court and its quorum. Quorum will be one Judge and one Commissioner, except in relation to some sections, where quorum consists of the Judge alone. The decision of the majority of members of the Court will hold good and if there is no majority, the decision of the presiding member will prevail; section 266 says constitution of Court is not to be questioned; section 267 refers to conferences and procedure and powers; section 268 to 'Alternative Dispute Resolution by one of the Members by way of mediation or conciliation or other procedure. These persons are not disqualified to act as Judges later.

Powers of the Court and procedures are defined in several sections. Section 274 deals with 'representation at proceedings'; Section 274(1) states that in proceedings before the Court under the Act, the Minister, any local authority, any person having any interest in the proceedings greater than the 70public generally, any person representing some relevant aspect of public interest, and any party to the proceedings, may appear and may call evidence on any matter that should be taken into account in determining the proceedings.

Others must give 10 day notice to the Court, if they wish to appear; section 275 refers to appearance in person or representative, and section 276 with 'Evidence'. It states that the Court may receive any evidence which it considers appropriate or it may call for any evidence which it considers will assist in the making of a decision or a recommendation and call any person before it for that purpose.

The Court is not inhibited by the principles of law about evidence that apply to judicial proceedings. Section 277 states that hearings and evidence has to be public subject to certain specific exceptions. Section 278 states that the Environment Court to have powers of s District Court; section 279 to powers of an Environment Judge sitting alone. He may strike off vexatious proceedings.

Section 280 refers to powers of Environment Commissioners sitting without Environment Judge and section 281 to waivers and directions; section 282 invests the Court with power to commit for contempt, section 283 take action for non-attendance or refusal to co-operate; section 284 to witnesses allowances, section 285 to costs through the District Court, section 286 to enforcing order as to costs; section 287 permits reference of question of law to the High Court; section 288 refers to privileges and immunities of witnesses and counsel.

Appeals, inquiries and other proceedings before the Environment Court are dealt with by sections 289 to 291. Section 289 deals with 'Reply to Appeal or request for inquiry'. Section 290 refers to powers of Environment 71Court in regard to appeals and inquiries; section 291 refers to other proceedings before the said Court.

With regard to Plans and Policy statements, the Environment Court is given special powers. Section 292 deals with 'Remedying defects in Plans', section 293 to the power of the Court to order changes to policy statements and plans. Section 294 refers to review of decision of Environment Court if new and important evidence becomes available or there has been a change in circumstances which might affect the decision.

Section 295 states that decision of the Environment Court is final; section 290 states that 'No review of decisions unless right of appeal or reference to inquiry exercised'. The section states that if there is a right to refer any matter to the Environment Court or to appeal to that Court against a decision of a local authority or any person under the Act, any other Act or regulation, no application for review under Part I of the Judicature Act, 1972 can be made and no proceedings seeking a writ of mandamus, prohibition or certiorari or a declaration may be heard by the High Court, "unless the right has been exercised by the applicant in the proceedings and the Environmental Court has made a decision." Section 297 says that decision of Court has to be in writing; section 298 to judicial notice of documents.

The next question is as to appeals from decision report or recommendation of the Environment Court. Section 299 states that appeal shall be 'on a question of law' to the High Court. Sections 300 to 307 refer to the procedure in the High Court in the appeals against the Environment Court, section 308 deals with appeals to Court of Appeal.

Part 12 deals with declaration, enforcement and ancillary powers which have to be exercised only by the Judge or Court. Section 309 says proceedings have to be heard by an Environment Judge (i.e. not a Commissioner/Dy. Commissioner). Sections 310 and 311 & 312, 313 deal with nature of declarations and procedure; section 314 to 321 with Enforcement orders by the Environmental Court; section 322 to 325B with 'Abatement notices' (i.e. Abatement of nuisance) and appeal to Court and stay; section 326 to 328 with 'Excessive Noise', section 329 with 'Water shortage', section 330 to 331 to 'Emergency Works', section 332 to 335 to 'power of entry and search', section 336 to 'Return of Property', section 337 to return of property seized under warrant'.

Offences are dealt with in section 338 to 343. Section 338 refers to 'offences against this Act', section 339 to 'Penalties' like imprisonment for 2 years or fine up to 200 thousand dollars and if the offence is a continuing one, upto 1000 dollars per day. Violation of some sections results in summary convictions; section 339A refers to 'Protection against imprisonment for dumping and discharges offences involving foreign ships', section 339B to 'additional penalty for certain offences for commercial gain' upto three times the said gain, section 339C to the 'Amount of fine or other monetary penalty recoverable by distress and sale of ship or from agent'; section 340 deals with 'liability of principal for acts of agents', section 341 refers to strict liability and defences'.

Subsection (1) of section 341 states that, in any prosecution for an offence in respect of certain sections (sections 9, 11, 12, 13, 14, 15) it is not necessary that defendant intended to commit the offence. Subsection (2) permits exceptions in case (a):

(i) action or event was necessary for saving or protecting life or health or preventing serious damage to property or avoiding actual or likely adverse-effect on the environment; and

(ii) the conduct of the defendant was reasonable in the circumstances, and

(iii) the effects of the action or event were adequately mitigated or remedied by the defendant after it had occurred or

(b): the action or event was due to an event beyond the control of the defendan.- including natural disaster, mechanical failure or sabotage and in each case (i) the action or event could not reasonably have been foreseen or been provided against by the defendant; and (ii) the effects of the action or event were adequately mitigated or remedied by the defendant after it occurred.

Subsection (3) states that the above defences can be raised only by leave of Court if applied for within 7 days after service or notice. Section 341A refers to 'liability and defences for dumping and storage of waste or other matter' with similar defences, section 341B to 'liability and defences for discharging harmful substances'. In the case of discharge of harmful substances, contaminants, or water in breach of section 15B, it is not necessary that defendant intended to commit the offence. Defences, in relation to discharges from shops are similar to those under section 341. Section 342 to 'fines to be paid to local authority instituting prosecution'; section 342 refers to 'Discharge from ships' (repealed).

Infringement offences are defined in section 343A. Infringement offence means an offence specified as such in regulations made under sections 360 (1)(ba). 'Infringement fee' in relation to the above offences means the amount fixed by regulations made under section 300(1)(bb) as the 'infringement fee' for the offence. Section 343B refers to 'commission of infringement offence' and states that any person who is alleged to have committed an infringement offence may either be proceeded against for the offence under the Summary proceedings Act, 1957 or be served with an infringement notice as provided in section 343C; section 343C refers to 'infringement notices' and section 343D refers to 'Entitlement to infringement fees' of the local authority.

These are basically the provisions of the Act relating to Environmental Courts in Part 11 and 12.

In New Zealand, the statutes which deal with environment are the 'Water and Soil Conservation Act, 1967; the Clean Air Act, 1972; the Noise Control Act, 1982; Marine Farming Act, 1971; Harbour Act, 1950; Forests Act; Historic Places Act; Local Government Act; Transit NZ Act; etc. Schedule 1 deals with 'Preparation, changes and review of Policy statement and Plans', Schedule 2 refers to 'Matters that may be provided for in Policy statement and Plans; then comes Schedule 3; Schedule 4 with Assessment of effects on the Environment. (Other Schedules upto 11 deal with certain other aspects'.

Summarising the functions of the NZ Environment Court, it is seen that it consists of Environmental Judges, who are also District Court Judges in office and of Environmental Commissioners. The Court has a Central Registry at Wellington and holds sittings throughout New Zealand. Normally, the panel will consist of one Environment Judge and two Environment Commissioners (except where enforcement proceedings involve questions of law). Parties before the Court are usually represented by lawyers, but anyone may appear in person, or be represented by an agent.

The Court is not bound by the rules of evidence and the proceedings are often less formal than the general Courts. Most of the Court's work involves public interest questions. The jurisdiction of the Environmental Tribunal consists of matters arising under (1) the Resource Management Act, (2) References about the consents of regional and district statements and plans; and appeals arising out of applications for resource consent; (3) The consents applied for may be for a land use, for a sub-division, a coastal permit, a water permit or a discharge permit or a combination of these.

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