The District Plan appeal process put simply

As many will be aware, the updated version of the Hamilton City Proposed District Plan was released on 9 July 2014 (“July Plan”).  The July Plan was the result of a lengthy negotiation and Council hearing process during which Council received, reviewed, negotiated over and/or heard further evidence in relation to over 1,000 submissions on the Proposed Plan as notified in December 2012 (“December Plan”).  The purpose of this article is to explain the next phase of the process in adopting a Proposed District Plan using the Hamilton City Proposed District Plan proceeding as an example.

The appeals

Since the notification of the July Plan, the original submitters on the December Plan were given the option of lodging appeals with the Environment Court.  Out of almost 1,300 original submitters, fewer than 50 persons/entities chose to lodge an appeal in Court (“appellants”).  A list of the appeals (as well as a copy of the appeals themselves) can be found on Hamilton Council’s website.

In addition to the appeals lodged, some chose to join specific appeal proceedings through "interested party" notices under section 274 of the Resource Management Act 1991.  An interested party notice gives people the right to join an appeal provided they fulfil a defined set of criteria.  The most common reason people join an appeal is because they made a submission on the original Proposed Plan (in this case, the December Plan) and the appeal they wish to join relates to one (or more) of the provisions they made submissions on. However, people can join even if they did not make submissions on the original Proposed Plan, so long as they can show they have an interest that is “greater than the general public”. 

The process

The appeal process is different to the previous Council-controlled process in that this step is controlled by the Environment Court.  This means that the Court determines what the next step of the process will be, albeit by seeking input from Council (and its advisors) and all other parties (both appellants and interested parties).

Given the appeals lodged in relation to the July Plan relate to a large number of provisions, some of which are interlinked, it would be entirely impractical for each appeal to be dealt with separately.  Instead, matters will be dealt with together to the extent they relate to the same subject or topic.  The decision on which appeals will be heard together is determined by the Environment Court with input and suggestions from all parties.  In relation to the July Plan, the parties have decided on a structure for how to group the appeals.

The next step in the process is to determine whether the appeals are likely to be resolved by:

• Negotiation leading to a Consent Order;
• Mediation; or
• Court hearing.

A Consent Order is where the parties, through negotiation, agree on a resolution of the appeal by preparing a draft Order for the Court’s approval.  It is a relatively quick and easy method of resolving an appeal.  In order for an appeal to be resolved by Consent Order, all the parties (including the interested parties) have to agree to and sign the Order.

Mediation is the most preferred way of resolving an appeal if negotiations are unsuccessful, as it provides the parties with input into the process and, if successful, avoids a Court hearing altogether.  The mediators are often Court appointed Environment Court Commissioners with previous experience in environmental matters.

If an appeal is unable to be resolved by way of a Consent Order or through mediation, the matter will proceed to be heard in the Environment Court.  This is a Court directed process in which the Judge and the Commissioners will hear submissions from all parties, along with any relevant evidence.  It is a formal procedure where strict rules of process apply which will need to be abided by.  A failure to adhere to time frames etc, may result in a loss of the appeal altogether.  The hearings in relation to the July Plan (if any) are not scheduled to commence until 2015 in order to give the parties enough time to negotiate and/or mediate.

What to think about

Whichever process is chosen, it is important to ensure that the correct mandates (particularly from the Council) have been sorted out early.  Engaging in a Plan appeal process is time consuming and can be costly, so it is vital to be clear on who is responsible for negotiating and who has authority/mandate to make decisions. This will avoid unnecessary delays and/or the risk of a negotiated resolution being rejected by the decision-makers.

All parties (including interested parties) should be conscious of the length of time a Plan appeal process is likely to take.  Not only because it usually involves a large amount of parties (including interested parties), but also because a Proposed District Plan is a very comprehensive document which often evokes a large amount of local, public interest (as noted, the December Plan gave rise to over 1,300 submissions which led to 50 or so appeals being lodged in relation to the July Plan). 

In addition, if an appeal has to be resolved by a Court hearing, further delays may incur as a result of Court availability (particularly if a number of districts are going through the Proposed District Plan appeal process at the same time, as is the case at the moment in New Zealand).

While the Environment Court is considered more layman-friendly than the civil Courts (such as the High Court), it is key not to underestimate the importance of obtaining expert advice, both planning wise and in a legal sense.  Technical expert evidence is sometimes required to give strength to an appeal and it is vital that such evidence is prepared in a legally compliant manner (having regard to rules of evidence, the expert Code of Conduct etc).

Funding

Plan appeals can be costly exercises.  In certain circumstances however, a party can seek to have an appeal funded by the Environment Legal Assistance Fund (ELA Fund).  The ELA Fund provides not-for-profit groups (such as environmental, community, iwi and hapū groups) with financial assistance to advocate for an environmental issue of high public interest at the Environment Court. In general it is expected that groups are incorporated or a Trust. The Fund is unfortunately not available to individuals.  More information on the ELA Fund can be found on the Ministry of the Environment’s website.

Summary

The Plan appeal process is a key aspect of the democratic process in which one of the most important local planning documents is prepared.  It gives people an opportunity to further engage with the Council before a Proposed District Plan becomes operative.

While all appeals are lodged with the Environment Court, there are a number of ways in which an appeal can be resolved.  The manner in which a resolution is reached is based on a variety of factors, most importantly by the stance of the parties to the appeal.  Time will tell whether the July Plan appeals are resolved by negotiation, mediation or hearing.

It is imperative to obtain appropriate technical and legal advice through the Plan appeal process, which can be lengthy and costly.  Funding through the Ministry for the Environment is available in certain circumstances.

If you would like further information please contact Dale Thomas on 07 958 7428.