Item 3:  Recommendations of the TAG that Appear to have been Ignored.

Many of those unused to reading Amendment Bills, and making the connections with the Act to be amended, found it much easier to read the Media Releases for a general overview and the Report of the Minister for the Environment’s Technical Advisory Group. (The TAG Report)

Many assumed that the recommendations of the Technical Advisory Group would be accepted and included in the Bill. While virtually every topic has been addressed, some of the detail – wherein lie both the angels and the devils – was lost in the translation.

Some examples follow and the Centre seeks your help in identifying others.

Item 3a: Tighten the Conditions that determine which parties can join the Appeals of Others.

The TAG report recommended that the Amendment Bill:

Tighten the provisions governing participation of those who seek to join the appeals of others by:

- reducing the timeframes for notifying the Court of an intention to join proceedings,

- removing the ability to continue with appeals if the original appellants have withdrawn or settled, and

- clarifying when the 15 day working period for lodging notices commences. 

This promotes consistency with the same timeframes the original appellant had to lodge their appeal and reduces the length of the period in which there is uncertainty amongst all participants as to who is participating in an appeal. This would provide for faster resolution of appeals. There is a small risk that this may provide inadequate time or opportunity for involvement of parties who were not involved in the council hearing such as those who may be representing relevant aspects of public interest and land owners who were overseas or recently purchased property.

Until recently, it was assumed that the Section in the RMA which said parties to an appeal did not need to seek permission from s274 parties (parties who join with genuine parties – such as the applicant and the council) to settle the dispute to their own satisfaction, this meant that the s274 parties could not carry on with the appeal after the parties had settled. However, some recent Judge-made law determined otherwise, and applicants around the country now find that even though they have settled and signed off with council and with other original submitters, the s274 parties (who typically come in late and incur hardly any costs because they ride on others' coat tails) are now carrying on with the appeal and creating lengthy delays, which in this climate are simply driving the applicants out of business because of their holding costs.

Naturally, the second bullet point above delighted many people caught in this unexpected trap. (Many had filed their applications years before the case law changed the standing of the s274 parties and hence had not allowed for such delays.)

For some reason the amended section 274 has not reinstated the original position, so section s274 parties can continue to carry on appeals even though the original parties have settled.

A simple amendment along the lines of the second bullet point will set things right.

Item 3b: Restricting Right to Join an Appeal to those those Directly Affected.

The TAG report further recommended that the Amendment Bill:

Prevent parties from joining an appeal only on the basis that they represent a relevant aspect of the public interest.

This would mean that parties could only join if they have already made a submission or are directly affected. Any person is able to make a submission on a plan or a resource consent and this proposal will encourage parties with either public or private concerns to participate at the outset rather than join proceedings at a late stage. The result will, however, be a reduction in opportunities for public participation.

Again this does not appear to have been included in the amendments to section 274.

We believe that the argument mounted by the TAG is legitimate because the present law encourages participation by parties with a “weak” interest, by enabling them to avoid the normal costs of appeal by riding on the coat tails of those who do all the groundwork.

We seek your assistance in framing a suitable clause for inclusion in the Bill.