Supplementary Memorandum by the Royal
Society for the Protection of Birds (PI 19(a))
INTRODUCTION
Following the oral evidence given by Professor Malcolm
Grant to the Committee on 28 March, and particularly his evidence
on the issue of Environment Courts, the RSPB has pleasure in submitting
supplementary evidence to the inquiry which we believe may be
beneficial to the Committee's deliberations.
This supplementary evidence focuses on the issue
of Environment Courts. It briefly explores the reason for the
focus on Environment Courts in written and oral evidence to the
Inquiry, outlines the role and structure of the Environment Court
in New Zealand, draws some conclusions on the benefits and drawbacks
of the Environment Court approach in New Zealand, and concludes
with some brief remarks on the thrust of Professor Grant's evidence.
The evidence draws on the personal experience of our Head of Planning
and Rural Development Policy, Mark Southgate, who visited New
Zealand in October and November 1998 on a Winston Churchill Memorial
Trust Travelling Fellowship to look at implementation of the innovative
New Zealand Resource Management Act 1991. His study included reference
to the New Zealand Environment Court.
THE ARGUMENT
FOR AN
ENVIRONMENT COURT
IN THE
UK—THE HUMAN
RIGHTS ACT
1998
Discussion about the merits of an Environment
Court in written and oral evidence to the Committee's inquiry
has arisen primarily due to the implications for planning, and
the Planning Inspectorate in particular, of the Human Rights Act
1998 (HRA). Principal amongst the concerns is whether the Inspectorate
meets the requirements of the HRA and whether third party rights
of appeal are likely. The RSPB support the high standards that
the Inspectorate has achieved in its work (see our original written
evidence). However, it seems to be generally held that the Inspectorate
is not an independent body that meets the HRA requirements. Our
observations on the Environment Court are offered in this light.
The HRA translates the Human Rights Convention
into UK law, and comes into effect this Autumn in England and
Wales, although the Convention is already in force in Scotland.
Article 6 of the Convention is potentially the most significant
as it confers the right to a fair trial, " . . . in the determination
of his civil rights and obligations . . . everyone is entitled
to a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law."
This Article is crucial to the future of the
Planning Inspectorate, particularly the provisions relating to
impartiality and independence. Most commentators do not doubt
the impartiality of the Inspectorate and Professor Grant emphasised
this in his written evidence when he stated "fairness, openness
and impartiality have been both the mission and the hallmarks
of the Planning Inspectorate". The issue of independence
is much less clear however.
As an Agency of the executive, and with Inspectors
appointed by the Secretary of State, it is doubtful that the Inspectorate
is truly independent in terms of the Convention. The European
Court, in the case of Bryan v UK, was not satisfied that an Inspector
was an independent or impartial tribunal. The case related to
an enforcement notice served on the appellant requiring the demolition
of two buildings on his land. Bryan had taken the case to the
High Court following the dismissal of his enforcement appeal by
an Inspector. The enforcement proceedings were further challenged
in the European Court, arguing that the Inspector was not an independent
and impartial tribunal under Article 6. Whilst the Inspectorate
has a quasi-judicial function and it is intended to act impartially
and fairly, it is also within the Secretary of State's power to
hire and fire Inspectors and to recover appeals. Inspectors do
not appear to be independent, and this was the determining issue.
Even if in practice the Inspectorate has generally been independent
in the past, the past record of the executive is no legal guarantee
of its future actions.
However, the issue is further complicated in
that Article 6 can be complied with either at the "first
instance" or where appeal or review procedures provide independence.
Thus, if the first decision making body is not independent, for
example local authorities or the Inspectorate, the process may
nevertheless be compliant if it is ultimately subject to supervision
by a judicial body that has full jurisdiction, that is, a body
that can hear the case afresh (de novo). This was the finding
in Bryan case, where the European Court held that the High Court
could remedy any defect in decision making, that as an independent
judicial body is satisfied Article 6. However many lawyers doubt
the validity of this finding. The High Court can only hear appeals
on matters of law, it is not able to investigate policy issues.
Thus it does not have full jurisdiction over reverted cases and
fails to meet the Convention's requirements.
As a consequence it seems unlikely that the
Inspectorate can remain an executive agency. Many commentators
believe a clear separation of the Inspectorate's functions is
inevitable and this has lead them to propose alternative models
including independent tribunals and Commissions or an Environment
Court like those already established in Australia and New Zealand.
Professor Grant's evidence to the Committee drew on his recently
published study for the DETR Environment Courts Project—Final
Report (DETR 2000).
THE ENVIRONMENT
COURT—THE
NEW ZEALAND
EXPERIENCE
The Environment Court in New Zealand was established
under the Resource Management Amendment Act 1996 and replaced
the former Planning Tribunal. Prior to the introduction of the
Resource Management Act (RMA) in 1991, New Zealand's Town and
Country Planning Act 1977 was broadly based on the British model.
Other Australasian Environment Courts are older, in New South
Wales, for instance, the Environment Court has operated since
1979.
The New Zealand Environment Court is an independent
specialist court consisting of Environment Judges (who are also
District Court Judges) and Environment Commissioners (technical
experts) who are appointed for fixed five year terms. Both are
appointed by the governor-general, on the recommendation of the
Minister of Justice. In appointing judges and commissioners the
governor-general is to have regard to the need to ensure a mix
of knowledge and experience—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 Court encourages mediation and arbitration
and a high proportion of cases are resolved by such agreement,
usually presided over by an Environment Commissioner alone. All
such agreements are only given effect once 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.
A Court hearing usually consists of one Environment
Judge and two Commissioners, except for enforcement proceedings,
which are matters of law and presided over by a judge alone. Sittings
may take place anywhere in New Zealand. The Court is not bound
by rules of evidence, being free to establish its own rules of
conduct. Consequently proceedings are often less formal than other
courts. Lawyers frequently represent 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, ie third parties, and to applicants. Third parties
may also apply to the Court for an order to enforce the RMA against
anyone else. Environment Court decisions may be appealed to the
High Court on questions of law only.
The Environment Court has ultimate responsibility
for environmental and resource management decision-making in New
Zealand. It hears references on regional and district statements
and plans (development plan equivalents) and appeals on resource
consents (planning application equivalents); it can make declarations,
ie interpret the law; and it can enforce the RMA through civil
or criminal proceedings. Local authorities are obliged to make
amendments necessary to plans to give effect to Court decisions.
Decisions on consents are taken afresh and can include taking
new evidence. The Environment 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 RMA.
As Birdsong has observed "virtually every
important mechanism for environmental management is now subject
to review in the Environment Court, including regional policy
statements, regional and district plans, and resource consents,
as well as water conservation orders"[5].
Thus, it is the Court that interprets resource management law
and policy—"policy judgements and decisions are the
daily diet of the Environment Court"[6].
SOME STRENGTHS
AND WEAKNESSES
OF THE
NEW ZEALAND
ENVIRONMENT COURT
On the plus side, the Environment Court provides
established environmental expertise, both legal and technical,
and a track record of environmental decision making in the public
interest. This is further bolstered by its duty to promote sustainable
management when hearing cases afresh, as set down in the Act.
This environmental expertise would help address the RSPB's call
for greater environmental expertise within the Inspectorate for
certain planning cases (see our original written evidence).
Another spin off is that the Court hears enforcement
cases and takes breaches of environmental legislation seriously.
It can, and does, impose significant fines. It can also hear enforcement
cases referred to it by third parties, enforcement is not at the
discretion of local authorities as it is in the UK. A frequent
criticism of enforcement cases heard in the UK by magistrates
and other courts is that they sometimes fail to impose the appropriate
punishment for breaches of planning control and environmental
legislation. Environment Courts are better able to understand
the gravity of offences and do not tend to downplay their significance
in comparison to other cases coming before them.
The provisions in the Act to encourage alternative
dispute resolution procedures, that is mediation, conciliation
or other procedures to facilitate a resolution prior to formal
hearing, are welcome. Where applied these have been successful,
although some commentators argue they are not used as much as
they should be.
On the debit side the Environment Court tends
to raise issues of costs and consequently public access to justice.
Birdsong has noted that "the awarding of costs against unsuccessful
litigants is a potential barrier to participation under the RMA".
Such costs are for reasonable litigation costs of other parties.
The Environment Court has emphasised they are not punitive, rather
"compensation for costs unnecessarily incurred". The
Court has indicated that costs will not normally be awarded for
references involving plans or policy statements nor in cases in
the public interest. Nevertheless applications for costs of $85,000
and awards of up to $20,000 can, and are, acting as significant
deterrents to participants. Some anecdotal evidence suggests threats
of costs are used by developers to discourage would-be objectors.
The fact that Courts hear a whole case afresh tends to drive up
costs, although a counter argument suggests that the Court's environmental
expertise and familiarity with environmental issues helps to reduce
the "background" evidence necessary, thus reducing the
length of hearings.
The whole issue of de novo hearing by the Court was
questioned by Hon Simon Upton, former New Zealand Minister for
the Environment. In 1998 he proposed that all decisions under
the RMA be heard by Commissioners. Part of his reasoning was the
"the opportunity for de novo appeals (ie. the rehearing of
all evidence on appeal) adds significantly to the cost of the
(planning) process and, more importantly, provides a major source
of leverage for those with an interest in prolonging matters or
simply scaring off potential applicants who know that their pockets
don't extend beyond round one"[7].
He also argued that council hearings are often a mere rehearsal
for the inevitable appearance at the Environment Court. He proposed
that appeals on resource consents be limited to points of law—that
is just the system that now operates in the UK in relation to
judicial review in the High Court. In the event these proposals
were not pursued, but the criticism stands.
Others argue that giving the Court de novo hearing
downplays the political and representational role of local authorities
in the planning process, handing decisions instead to unelected
officials, albeit impartial ones.
SOME BRIEF
COMMENTS ON
PROFESSOR GRANT'S
EVIDENCE
Professor Grant in giving his oral evidence
made the important point that at present 99 per cent of decisions
taken by the Inspectorate are taken by them alone with no need
for Ministerial intervention. Thus the implications of the HRA
in these cases is that any potential for Ministerial intervention
in these decisions needs to be removed. In essence the decision
making process and procedure can be broadly the same, but the
link to the Minister and central government must be severed. As
Grant said "all we are talking about in that (appeals) system
is putting it on a different footing".
Grant suggested that the most appropriate Environment
Court model is that of New South Wales. This, he suggests, would
result in the Inspectorate being used as the bottom (tribunal)
tier with a new "flexible" court tier above it, which
can use alternative dispute resolution procedures, etc. In its
approach this seems broadly sensible. The existing Inspectorate
and its procedures could be "simply transposed" into
the new court, thus meeting the HRA requirements, but minimising
the institutional upheaval. (In practice, the creation of the
Environment Court in New Zealand was achieved by changing the
name of the Planning Tribunal and broadening some of its scope,
by minor evolution not a revolution). Thus Grant argues, 99 per
cent of appeals would still be heard by the now independent planning
Inspectorate, the Tribunal, while the new court tier would hear
those cases currently decided by the Minister.
However, if such a model is the preferred option
of overcoming the problems raised by the HRA, we must be mindful
of the practical issues raised by the New Zealand Court, and particularly
the issue of costs discouraging public participation and legal
challenge, and the need to ensure that alternative dispute resolution
procedures are well tested, robust, workable and actively used
by the Court. Resources would also need to be addressed.
The Human Rights Act raises some far reaching
questions in relation to the determination of planning appeals.
If an Environment Court approach is considered it is important
that lessons from other countries, including New Zealand, are
learnt.
Mark Southgate
RSPB
April 2000
5 Birdsong, B (1998) Adjudicating Sustainability-New
Zealand's Environment Court and the Resource Management Act, Ian
Axford Fellowship report, Auckland. Back
6
Birdsong, B (1998). Back
7
Simon Upton (1998) The Review of the Resource Management Act,
address to RM Association Conference, Rotorua. Back
| 
