Tag Archives: Environment Court

Withdraw proposed Harbourside plan change in its entirety!

On the basis of all information now to hand, there is no basis whatsoever for the proposed harbourside plan change. Not for stage 1, not for stage 2. Not for any of it. Certainly, not while there is no at grade crossing in Rattray-Fryatt St for direct vehicle, cycle and pedestrian access to the Steamer Basin from the CBD.

The ODT editorial writer can descend into waffle as much as he likes (he started well) – the whole plan change must be withdrawn. Throw it back at Jim Harland and Chalmers Properties Ltd. May it knock them out. ABANDON PLAY.

There is no point in a compromise.
There is no point in the Environment Court process being pursued.

Lunacy is very hard to give up.

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### ODT Online Sat, 27 Mar 2010
Editorial: Harbourside jobs
The clamour against the Dunedin City Council harbourside district plan changes is louder than a foundry hammer. Businesses in the area are alarmed and upset and are being backed in an extraordinarily strong show of support by the Otago Chamber of Commerce and other firms around the city. The businesses fear that changes to a mixed “harbourside” zone will kill them off, whether it be quickly or – as one manager said – by a thousand cuts. Gone will be the security of industrial zoning rights to underpin current operations and possible expansion.
Read more

Posted by Elizabeth Kerr

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Tahuna Upgrade or Stadium, or both

### ODT Online Mon, 20 Apr 2009
Opinion: Tahuna vital, stadium not
By Neville Peat

Former Otago regional councillor Neville Peat says that, new stadium or not, the City Council must complete the Tahuna wastewater treatment project on time.
Read more

ODT credits Neville Peat as having chaired the panel of commissioners at the Otago Regional Council’s Tahuna wastewater outfall resource consent hearing.

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### ODT Online Mon, 20 Apr 2009
Report on $74m sewage plan due today
By Chris Morris

A $74.3 million plan for the scheduled stage two upgrade of Dunedin’s secondary sewage treatment facilities is to be considered by city councillors today.
Read more

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StS off this particular hook

### ODT Fri, 13 Mar 2009
No costs to be awarded for the Stop the Stadium appeals

By David Loughrey

A planned Environment Court hearing on Dunedin’s stadium was cancelled yesterday, meaning all appeals against district plan and roading changes to allow the project to go ahead have been dropped, and no costs will be pursued. Port Otago’s property division, Chalmers Properties has dropped its appeal. An Environment Court spokesman said the hearing had been cancelled, and files relating to the case had been closed. Full ODT link

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StS didn't know the cost all along???

Hello…

### ODT Online Tue, 10 Mar 2009
By David Loughrey

Stadium appeal dropped

Stop the Stadium has dropped its Environment Court appeals against the district plan and roading changes necessary for the stadium project, just days before preliminary hearings were to begin. The group’s president, Bev Butler, yesterday said the cost of the appeal would have been at least $200,000, making it “imprudent” to continue.

Read More Online Here…

Full ODT link

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Fairyland just went crunch. Best rule out the judicial review while we’re at it. AWAIT the public meeting, after all, according to Bev Butler on Newstalk ZB, “Reality must intervene.”

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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

See comment on definitions

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StS appeal found, at Environment Court

### ODT Thu, 5 Mar 2009

By Mark Price

Stop the Stadium’s missing “notice of appeal” against the Dunedin City Council’s rezoning of land for the stadium has been found – at the Environment Court in Christchurch.

Read More Online Here…

ODT link

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StS appeal 'lost in post'

### ODT Fri, 27 Feb 2009
Land rezone appeal appears lost in post
By Mark Price

An appeal against the Dunedin City Council’s plan to rezone land in Awatea St for a new stadium appears to have been lost in the post.

Read more

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Plunket, 'Appeal will be withdrawn immediately'

### D Scene 25-2-09 (page 5)
And then there was one

Dunedin’s proposed $188 million stadium is about to dodge one of the two Environment Court appeals lodged against it this month. Chalmers Properties Ltd have lodged an appeal to the Environment Court through its Auckland-based lawyers. The appeal relates to a Dunedin City Council-initiated arterial route making way for the Awatea St stadium. However, Port Otago chief executive Geoff Plunket says the appeal will be withdrawn immediately.
{story continues}

Register to read D Scene online at http://fairfaxmedia.newspaperdirect.com/

### D Scene 25-2-09 (page 5)
‘A plan change appeal won’t hold up demolition work’ – Trust
Stadium start regardless

By Michelle Sutton

Opponents’ hopes that court appeals will stall work on Dunedin’s controversial megabucks stadium will come crashing down in June. Demolition work at the site will start regardless, according to the Carisbrook Stadium Trust.
{story continues}

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If to Environment Court

Stop The Stadium President Bev Butler has confirmed the organisation has lodged a letter of appeal to the Environment Court seeking to prevent the Harbour Arterial Link project – this joins the proposed harbourside arterial with State Highway 88 by skirting the site for the Awatea St stadium.

Loss of the Harbour Arterial Link would place the proposed stadium project in jeopardy. http://www.odt.co.nz/news/dunedin/42373/environment-court-stadium-appeal

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What is the role of the Environment Court?

Ministry for Environment web pages cleanly state (http://www.mfe.govt.nz/publications/rma/everyday/court-guide/html/page2.html):

“The Environment Court is a specialist court operating under the Resource Management Act (RMA). The Environment Court has the same powers as the District Court and considers appeals on council decisions about:

* resource consents
* abatement notices
* proposed district and regional plans
* proposed regional policy statements.”

Among other things, the Environment Court can consider appeals on designations.

“The Environment Court has the power to:

* direct councils to make changes to their policy statements or plans
* confirm, amend or cancel decisions on applications for resource consents and designations
* stay or confirm abatement notices
* make or decline to make declarations and make or refuse to make enforcement orders
* award costs in favour of one or other of the parties involved.”

The Environment Court holds sittings as required throughout the country. These are usually held as close as possible to the site that the proceeding is concerned with.

Always google “Environment Court” or “RMA” to pick up useful explanatory guides, definitions and descriptions of planning processes, court processes, procedural matters and participation. Most of these are phrased for easy comprehension by lay people and practitioners, and general query solving. Plenty of cross links are given for consistency and elaboration.

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Last year, Ms Butler expressed concerns when she discovered the Dunedin City Council had pushed for early Environment Court slots for expected appeals blocking the Awatea St stadium proposal. She considered this application to the Court to be highly unusual. Via media reporting – and, as underlined to Ms Butler by the Commissioners at the stadium plan change hearings – this was shown to be standard practice. Forward scheduling allows the Court to allocate personnel and resources to see to upcoming business. Appeal hearings have been sought for April or May 2009.

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Case Management

One of the objectives of case management by the Environment Court is to “efficiently use available judicial, legal, and administrative resources, and achieve the purpose of the Resource Management Act (where that is the relevant controlling legislation)”.

Cases such as statutory plan appeals, appeals concerning a major development proposal (and matters referred to the Court by the Minister for the Environment under s141B(l)(b)) which require individual management are “assigned to a complex track, and are managed through mechanisms such as timetabling of procedural steps and progress reporting to the Court, judicial conferencing, and formal pre-hearing directions or rulings”.

To find out more about the Court’s case management system, go to:
http://www.courts.govt.nz/environment/procedure/case-management.asp
http://www.courts.govt.nz/environment/legislation-and-resources/practice-notes.asp?inline=case-management.asp

Designations

Unsure of the term ‘designation’ as it applies to local authority planning processes? What does it mean?

Areas of land can be designated for use by requiring authorities as network utilities or public works, for example, roads. This means that works can be carried out without the subsequent need to comply with district plan rules. The process for designating land is similar to a resource consent application and provides for public submissions.

“[A designation] gives providers of network utilities and public facilities certainty and the ability to plan ahead. It gives them control over activities on the site to prevent anything that may compromise future works, even if the site remains in private ownership.”

In effect, the designation “creates a special zone within the district plan where the specified activity becomes a permitted activity”.

To note: “Tensions can develop between the community’s desire to achieve a good environmental outcome, and the necessity to provide public utilities such as a road or a wastewater treatment plant, within a designated area.”

Use the following links to view the full context of these excerpts:
http://www.rmalink.org.nz/view-subprocess.php?id=4
http://www.mfe.govt.nz/publications/rma/everyday/designations/index.html
http://www.mfe.govt.nz/rma/public/designations/index.html

Sections 166-186 of the Resource Management Act (RMA) deal with designations. These are searchable online.

Notified Decision

The Council notifies the decision of the requiring authority (Dunedin City Council, in this case) to all submitters and affected landowners/occupiers.

Planning hearing commissioners Roger Tasker, John Lumsden and John Matthews confirmed a notice of requirement for the new Harbour Arterial Link, subject to a list of conditions, on 9 January 2009.

STS, as a submitter, didn’t like the notified decision and has appealed to the Environment Court by the due date set down in the decision (2 February 2009).

ODT reports (go to link at top of page), “Among Stop the Stadium’s reasons for appealing to annul the Dunedin City Council’s “notice of requirement” – the process by which a designated authority gives notice it is seeking to designate land – were that the planned new infrastructure duplicated existing infrastructure; it was contrary to various objectives and policies of the Dunedin district plan and Otago’s regional policy statements and objectives because it failed to recognise available transportation alternatives and to reduce the use of fossil fuels and production of harmful emissions; and it made more appropriate technology less likely in the future. The new route would isolate the harbour area from the rest of Dunedin and make access to the harbour area more problematic…Ms Butler noted the commissioners had conceded a shorter arterial route through fewer private properties than would be needed to go around the proposed Otago Stadium site would be preferable.”

If you hold concerns similar to these about an RMA decision, initially you might consult the following guidelines, Resolving Resource Management Act Concerns and Your Guide to the Environment Court:
http://www.mfe.govt.nz/publications/rma/everyday/concerns/index.html
http://www.mfe.govt.nz/publications/rma/everyday/court-guide/index.html

Better, directly consult a lawyer for advice and to know your options, and or an experienced RMA practitioner.

The Resource Management Act

The Ministry for Environment provides a gateway to information about the Resource Management Act 1991 (RMA), New Zealand’s main piece of legislation that sets out how we should manage our environment. http://www.mfe.govt.nz/rma/

The approach to environmental management under the RMA is centred on the concepts of sustainable and integrated management of resources. Other principles of national and lesser importance are set out in the Act.

The Environmental Defence Society (EDS) also provides a community guide to the RMA: http://www.rmaguide.org.nz/rma/introduction.cfm

In 2005, the RMA was amended – and shortly, it will be again.

The Resource Management Amendment Act 2005 changed Environment Court procedure. “Rather than the ‘de novo’ hearing, the Court must now consider the decision made by the consent authority, and the evidence that was presented at it. This provision avoids the need to re-hear entire cases, and will speed up Court proceedings. However, there has been a corresponding increase in the documentation that consent authorities are required to make for consent hearings.” http://www.rmalink.org.nz/view-subprocess.php?id=3

Quality Planning is another RMA resource, providing valuable information on a range of planning topics (including conduct at hearings), as well as best practice guidance and relevant case law. http://www.qualityplanning.org.nz/

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Pending the Dunedin City Council’s decision on the stadium project tomorrow, will StS continue with its appeal? It’s understood Chalmers Properties Ltd (CPL) has also appealed the decision for the notice of requirement.

More soon.

Posted by Elizabeth Kerr

Postscript, from ODT Online

Comment submitted by andy73 on Sat, 07/02/2009 – 11:31am.
http://www.odt.co.nz/news/dunedin/42373/environment-court-stadium-appeal#comment-2338
“Although I don’t particularly think that the ‘Stop the Stadium’ group is the best to represent the vast majority of Dunedin’s residents that are against the stadium, I am pleased that they are at least doing something about it. Dunedinite’s apathy is the reason we have ended up with such an out of touch council in the first place. I would hope that Stop the Stadium is also looking at legal ways of having this council removed from office due to a ‘vote of no confidence’ from the people. I really believe that the problem has got that bad!”

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