Whatever next? Available processes…

Last year and this, speaking with resource management practitioners (planners) at Dunedin and Christchurch, some of whom also act as planning commissioners, it was easily established that the Otago stadium project could not be stopped via the plan change process.

Refer to Dunedin City Council’s Plan Change 8 – Stadium (PC8) and the Notice of Requirement – Harbour Arterial (DIS-2008-3). Link

On reviewing the Council’s applications for PC8 and the NoR, and listening to points of view of potential submitters, the practitioners explained that to participate in the plan change process might alter, most likely for the good, aspects of the plan change documentation and subsequent effects. Fair enough.

This information was made available to several parties within the submission period, including the management committee of Stop the Stadium Inc.

Since the plan change hearings, and following receipt of the commissioners’ decisions for PC8 and the NoR, Stop the Stadium has gone on to lodge appeals with the Environment Court – most properly it seems, not as a ‘delaying tactic’.

Recently, the organisation’s president Bev Butler said an approach had been made to Chen Palmer, the only specialist Public Law firm in New Zealand. There are indications that Stop the Stadium is investigating whether to seek a judicial review at the High Court in relation to council decision-making processes under the Local Government Act. Time will tell. As will finance.

OH DEAR GOD. 9 March 2009. Stop the Stadium has issued a press release to confirm it has withdrawn its appeals to the Environment Court. If intending to seek a judicial review, on who knows what grounds – as yet, or if – then things get interesting. Meantime don’t hold your breath, people.

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The Environment Court is the primary judicial decision-making body under the RMA, and is at the same level as the District Court. The Environment Court hears appeals from people who disagree with RMA-related decisions made by local councils. The Court can enforce their decision on a person, company or organisation. Link

The Court can be asked to overturn any council decision to do with a plan or resource consent application.

If you disagree with a decision from the Environment Court, you can appeal to the High Court. Any appeal is considered on points-of-law only, rather than a reconsideration of all the matters that were considered by the Environment Court in making its decision.

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Judicial review is the review by a Judge of the High Court of a decision to determine whether it was according to law, proper procedure, fair and reasonable. Link

Judicial review is not the same as an appeal.

Judicial review is an enquiry into the process by which the decision was made, rather than the merits of the decision itself. The grounds for judicial review include mistakes of law, taking account of irrelevant considerations (or failing to consider relevant matters), or having insufficient information to reach a certain decision.

The judicial review of a decision-making process by a local authority may only be sought if the option of an appeal under the RMA is not available (section 296 RMA).

All judicial reviews heard in the High Court may be appealed to the Court of Appeal. The Court will scrutinise the decision-making process and, if it finds errors, usually send the decision back to the decision-maker for correction.

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The classic theory of judicial review is that it is an important restraint on the exercise of public power. By this theory, judicial review imposes upon all decision-makers standards that are inherent in a democracy and embraced by the rule of law. The role of the courts to uphold the rule of law and restrain the exercise of power has long been articulated.

Link to Judicial Review – An Update by Charles Chauvel, Partner, Minter Ellison Rudd Watts (Thursday, 04 July 2002).

The principal difficulty in determining whether a decision-maker has acted illegally occurs in those circumstances where the decision-maker has been granted a broad decision-making discretion. However, the courts’ jurisdiction is not ousted merely because the statute confers upon a decision-maker a discretionary power.

The courts maintain a reluctance to interfere in the exercise of a discretion that has been granted to a decision-maker. Even so, the courts maintain their right as the ultimate arbiter of what is lawful.

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Relationship between Local Government Act and RMA
Visit the Quality Planning website here.

The Local Government Act 2002 (LGA) represented the first major revision of local government law for 28 years. This review was also part of a wider legislative reform, which included the reform of earlier legislation to create the Local Electoral Act 2001, and the Local Government (Rating) Act 2002 (which replaced the Rating Powers Act 1988).

The reforms encourage local authorities to focus on promoting the social, economic, environmental and cultural well-being of their communities, consistent with the principles of sustainable development. Local authorities in consultation with their communities now have greater discretion in the choices they make about what services will be provided, and the manner in which these services will be undertaken. The very prescriptive provisions of the previous Act have been replaced by a general form of empowerment.

The LGA requires local authorities to consult with their local communities and Crown Agencies to determine what public goods and services the community wants provided. This process leads to the development of ‘community outcomes’. These outcomes are then translated into a plan of action referred to as the long-term council community plan (LTCCP).

This is a ten-year strategic planning document, and covers all local authority functions from financial planning and economic development initiatives, to social service provisions such as libraries, housing and community facilities. LTCCPs must be reviewed triennially.

The Resource Management Act (1991) establishes a hierarchy of policy documents from national instruments to regional policy statements, and regional and district plans. This ‘hierarchy’ and requirement to ensure consistency between plans, is to promote sustainable management and ensure integrated management of natural and physical resources at a national, regional and local level.

The following FAQ were prepared by John McSweeney and Sandra Proctor from the Ministry for the Environment; and peer reviewed by Fiona Illingsworth from the Department of Internal Affairs and Jane Johnston from Local Government New Zealand. More

What regard must be given to the decision-making and consultation principles under the LGA when following specified processes in the RMA?

The decision making and consultation principles (sections 76-82) of the LGA are designed to apply only where no requirements are specified in other relevant local government legislation. For example, a decision about notifying a resource consent application would be made under the processes of the Resource Management Act, not under the LGA.

A general principle of law is that specific provisions contained in one Act override the general provisions contained in another Act. The RMA contains specific requirements pertaining to resource consents and decision making, whereas the LGA has general consultative principles that must be applied when consulting with the local community. As there are no specific processes for carrying out consultation under the RMA about how the community should be consulted when preparing a policy statement or plan, local authorities will be required to apply the consultative provisions contained in the LGA.

What are the differences between the decision making processes in the RMA and the LGA?

The RMA has a codified submissions and hearings process, where the Act sets out the process and timeframes to be following, the manner in which hearings must be conducted, and the matters that must be taken into account in making decisions. This quasi judicial process allows for RMA decisions to be challenged on policy grounds to the Environment Court. Any submitter or further submitter can also be a ‘party to proceedings’ in the Environment Court.

RMA decisions can also be challenged in the High Court on points of law and process. For example, decisions relating to whether resource consent applications should, or shouldn’t be notified.

The LGA does not codify the way consultation and decision making is undertaken by local authorities. Each local authority must however ensure that its decision making processes ‘promote compliance’ with sections 76-82. The effect of this is that a local authority’s decision-making processes must:

* involve consideration of all reasonably practical options;
* involve consideration of the views of persons likely to be affected by a decision;
* identify any significant inconsistency between the decision and any policy or plan adopted by a local authority;
* provide opportunities for Maori to contribute to the processes; and
* promote compliance with the principles of consultation, including giving interested persons a reasonable opportunity to present their views.

The LGA contains consultation principles that should be applied when consulting with the public. This is not a mandatory requirement as it is under the RMA.

Members of the public can only challenge LGA decisions in the High Court on the basis that the correct process has not been followed or on a point of law. Legal challenges cannot be made on the merits of the decision. This is the main point of difference between RMA and LGA decisions.

Other sources of information include:
Local Government KNOWHOW guides to the Local Government Act: produced by SOLGM, LGNZ and the Department of Internal Affairs.

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The High Court, established in 1841 and known as the Supreme Court until 1980, is of pivotal importance in New Zealand’s justice system. It has general jurisdiction and responsibility, under the Judicature Act 1908, for the administration of justice throughout New Zealand. This includes maintaining the consistent application of the rule of law, supervision of other courts and tribunals, and the judicial review of administrative power. It has jurisdiction over both criminal and civil matters, and deals with cases at first instance or on appeal from other courts and certain tribunals.

It comprises the head of the New Zealand Judiciary, the Chief Justice and up to 55 other Judges (which includes the Judges of the Supreme Court and Court of Appeal). In addition, Associate Judges of the High Court (formerly known as Masters of the High Court) supervise the Court’s preliminary processes in most civil proceedings, and have jurisdiction to deal with summary judgement applications, company liquidations, bankruptcy proceedings, and some other types of civil proceedings. The High Court Judges and Associate Judges are based in Auckland, Wellington and Christchurch, but also travel on circuit to Whangarei, Hamilton, Rotorua, Gisborne, New Plymouth, Napier, Wanganui, Palmerston North, Nelson, Blenheim, Greymouth, Timaru, Dunedin and Invercargill. The Court also has registries in Masterton and Tauranga. Court staff in those centres are responsible for supporting the management of cases before the Court and, as Registrars and Sheriffs of the Court, are responsible for exercising certain judicial powers, and enforcing the Court’s judgements and orders. Link

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7 Comments

Filed under Other, Politics, Stadiums, STS, Town planning

7 responses to “Whatever next? Available processes…

  1. Peter

    Given the apparent withdrawal of StS’s appeals to the Environment Court, does this mean they’ve received advice from Chen Palmer indicating they might have grounds for a judicial review? That would be interesting given the Auditor General’s office has already examined Council processes and given a clean bill of health … Also if StS sought a judicial review, would that mean the High Court would issue an injunction against any work on the stadium commencing until the Court’s decision was reached? In effect, if that is the case, this would appear a more effective delaying tactic than an Environment Court appeal, which StS wouldn’t win … It’s certainly all the eggs in one basket stuff if that’s the path StS intend to follow.

  2. Tell you what, chances of any such review being successful are risky. However if they do get injunctions and construction is delayed etc, but in the end the stadium goes ahead, but not in time to cash in on the biggest sporting event to hit the country outside of hosting the Olympics, there would be some people in line for a hell of a ‘run out of town’.

  3. Elizabeth

    Thanks Peter, intriguing.
    In the hands of others such a move (JR) might have a chance…but there’s the track record to consider. Is the organisation able to give and take professional instruction. Leaving off the question mark for now.
    Mustn’t credit too much ingenuity. Wonder if EC disallowed one appeal due to lateness as an associate suggests, some face-saving going on…

  4. Elizabeth

    A dependable source confirmed StS would seek a judicial review and had got hold of Chen Palmer for the purpose. Adding, “A JR doesn’t have to be toweringly expensive – especially if someone has worked out the basic arguments for you…They may do something useful yet.”

    PS. If costs are awarded against a JR is expensive! Can StS afford a second bout of brinkmanship…

  5. I doubt it, but they will try anyway.

    What is the StS kitty at now, here’s a genius idea, use that to pay the rates of the poor buggers for the next x years, that surely will see them through till opening when they marvel at the glowing complex with open drooling mouths, I’ll even contribute to shut them up – whops was that too rude.

  6. Elizabeth

    If StS winds up – or is wound up by another party – any funds remaining go to the foodbank. Quite some time ago I was hoping the foodbank would get the full dollop of about $14,000.

    StS hasn’t been running a massive campaign lately to accrue fighting funds from its numerous but low-paying subscription members (spot the problem). Instead, it is hoping to utilise the generosity of a smart individual, or more, to mount the legal case on grounds that must remain anonymous, well, for the moment at least.

    Sorry about the drip feed.

  7. Elizabeth

    Another thing, there’s been a telling interval between past presidential/committee emails sent to StS financial members and the StS ‘appeal dropped’ news in ODT today. It’s poor that StS hasn’t consulted its members on appeal of the plan changes, on withdrawal of the two appeals, or in discussion of likely expense incurred to StS in ‘dropping out’. It’s all very well for StS to wait until Thursday to see if Dunedin City Council will apply for costs. Right now, the members deserve some direct communication, explanation and support. A just courtesy, StS should put its ‘case’ to the membership (in general terms is fine) before doing so to a member of the judiciary.

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