The Hearing

Management Tracks

The Environment Court case manager will notify you in writing of the track which has been identified for your case. There are three tracks: ¹¹⁹⁶

Standard track: Cases that do not require priority attention are assigned to a Standard Track. This includes most appeals including resource consent appeals, some plan appeals and non-urgent enforcement proceedings. The Court will normally issue a standard direction requiring a party to the proceedings (normally the Council) to consult with the parties and then lodge an initial report  with the Court setting out a programme for the proceedings within a 40 working day period. The programme will generally include a list of the unresolved issues, a timetable for the filing and exchange of evidence and an estimate of hearing time.

Priority track: Cases that require priority attention (in terms of priority resolution or more intense case management) are assigned to a Priority Track. They will be case-managed by the Environment Court to produce an early result. Direct referral applications will also be placed on this track. A programme will be established after consideration of parties’ views. Non-compliance with time limits may result in sanctions being imposed by the Court (such as the awarding of costs).

Parties’ hold track: Subject to the Court’s agreement and for good cause, cases where parties to the proceeding are not actively seeking a hearing are placed on a Parties’ Hold Track for a defined period. This track may be chosen to allow parties an opportunity to negotiate or mediation or where a plan change or variation is promoted by a local authority to meet an issue raised in an appeal. There will be judicial oversight to ensure real progress occurs. Case management is resumed at the parties’ request, at the expiry of the deferral period, or as otherwise directed by the Court.

Pre-hearing conference

The Court must, as soon as practicable after lodging the proceedings, consider whether to convene a pre-hearing conference ¹¹⁹⁷  to determine procedural issues. A pre-hearing conference may also be convened at any other time. After a pre-hearing conference the Court may issue directions about the resolution of preliminary questions, timetables for the exchange of evidence, and the date and duration of the hearing. Any party who intends to take part in the hearing should attend the conference, or be represented at it by someone who is familiar with the party’s position and the submissions and evidence to be given. ¹¹⁹⁸

Notice of hearing

You will receive at least 15 working days notice of the hearing date.

Exchange of evidence

Statements of evidence are to be delivered to the other parties prior to the hearing. In most cases, the Court will give directions about the time for when statements of evidence are to be delivered to the other parties (in either a sequential evidence exchange or simultaneous evidence exchange). Where no special direction is given, statements of evidence are to be delivered no less than five working days before the start of the hearing. Evidence must include copies of all exhibits.

Hearing body

Appeals are heard by an Environment Court that usually consists of an Environment Judge and two Environment Commissioners. Environment Commissioners are not usually lawyers, but have professional experience relevant to resource management issues. In some circumstances, appeals may be heard by a Judge alone or by one or two Environment Commissioners without a Judge. This is only done with the consent of all parties.

Hearing procedure

Cases in the Environment Court are usually heard de novo, which means that the Court considers all the relevant issues afresh. ¹¹⁹⁹  However, the court must have regard to the decision appealed against. ¹²⁰⁰  The order of presentation of cases for an appeal on a proposed policy statement or plan is usually:

• Council as the initiator of the policy statement of plan
• The appellant(s)
• The section 274 parties

The order of presentation of cases for an appeal of a decision on a resource consent application depends on whether the resource consent application was:

• Granted, and the appeal is opposing the grant of consent
• Granted, and the appeal is opposing the conditions of consent
• Declined, and the appeal is seeking the grant of consent

The Court may accept evidence that was presented at the council hearing on the matter (section 276(1A)).

Preparation of evidence

Evidence can have a major impact on determining the outcome of a case. The person presenting the evidence will need to prepare it. It is important to brief your expert witnesses well so that they are clear about the issues in contention and how their evidence will contribute to your case. They will need to have first-hand knowledge of the issues in dispute and have formed an independent and professional view of the merits of your case.

The Environment Court has stated that although any evidence considered by the Court to be relevant might be received that does not mean that "anything goes". In particular, information sourced from the internet addressing technical issues does not come within the legitimate range of lay evidence to which due regard may be had by the Court. This does not mean that the end decision is determined solely by expert evidence, both expert and lay evidence can assist the Court to assess effects on the environment. ¹²⁰¹

Evidence should be in the first person and start with the expert setting out her or his qualifications and experience. The structure of expert evidence will differ between each type of expert and the nature of each case. All quoted information needs to be carefully referenced to its source.

Maps, diagrams and photographs should be used where possible to illustrate the evidence. Make sure photographs are mounted and numbered and that the date, time taken and lens size is recorded where possible. Bundles of documents or a series of photographs should be presented in a folder or booklet. If using colour, all copies of the evidence made available to the Court and other parties must be in colour.

The Environment Court has issued a Code of Conduct for Expert Witnesses. ¹²⁰²  Each witness must be familiar with the Code of Conduct and comply with it. The Code of Conduct makes it clear that the overriding duty of expert witnesses is to assist the Court impartially on relevant matters within the expert's area of expertise and not to be advocates for their clients. The Code also requires the following to be included in the body of the witness's statement of evidence:

• An acknowledgement that the witness has read the Code of Conduct and agrees to abide by it
• The witness's qualifications as an expert
• The ambit of evidence to be given and whether the evidence is in the expert's area of expertise or relies on some other evidence (which should be identified)
• The data, information, facts and assumptions considered by the witness in forming his or her opinion
• The reasons for the opinion expressed
• Confirmation that the witness has not failed to consider material facts that might alter or detract from the opinion expressed
• Reference to any literature or other material used or relied on
• A description of any investigations on which the witness has relied and the identify and qualifications of any person who carried them out
• Minimal quotes from policy statements and plans in the body of the statement of evidence (these can be attached as a schedule to the statement of evidence)
• Any qualifications to the opinion expressed including the availability of insufficient research or data on which to base a firm opinion

Example

Expert witness conferences

Expert conferencing is a process by which expert witnesses confer and attempt to reach agreement on issues, or at least to clearly identify the issues on which they cannot agree, and the reasons for that disagreement. Such a conference is a structured discussion between peers within a field of expertise which can narrow points of difference and save hearing time and costs. ¹²⁰³

The outcome of expert conferencing is the production of a joint witness statement which should include the following matters:

• The key facts and assumptions that are agreed upon by the experts
• Identification of any methodology or standards used by the experts in arriving at their opinions and reasons for differences in methodology and standards (if any)
• The issues that are agreed between the experts
• The issues upon which the experts cannot agree and the reasons for their disagreement
• The identification of all material regarded by the experts as primary data
• Identification of published standards or papers relied upon in coming to their opinions
• Confirmation that in producing the statement the experts have complied with the Code of Conduct of Expert Witnesses
• Reservations about issues on which the participants are uncertain about the substantive law or procedural matters ¹²⁰⁴

Participants in an experts’ conference must comply with the Code of Conduct, not act as an advocate for the party who engaged them, exercise independent and professional judgement and not act on the instructions or directions of any person. ¹²⁰⁵

Expert conferencing is confidential and apart from agreed primary data and the joint witness statement what is said or done at the conference cannot be referred to or relied on in any proceeding before the Court. ¹²⁰⁶

Preparation of Opening Submissions

Your opening submissions should be short and concise and cover the following matters:

• The background circumstances to the case (unless these have already been covered by an earlier party)
• The issues in dispute
• The nature of the evidence which you will be presenting
• The principles of law which apply to the issues in dispute
• The differences between your case and that of the opposing parties and the reasons why your case should be preferred

Written submissions should be well structured with liberal use of headings. Double space the lines and use an easily readable font such as Arial 11 point. Make sure that every paragraph is numbered for easy identification. Avoid using bullet points for lists, but instead number the items.

Example

Presentation of submissions

Prior to commencing your case, you must provide to the Environment Court registrar four copies of all submissions which you will present. You must also provide copies to the other parties in attendance.

Read from the written submissions. Speak slowly and clearly and vary your tone to keep up interest. Address the judge, not the wider audience. Sound confident.

Presentation of evidence

Prior to commencing your case, you must provide to the Environment Court registrar four copies of all evidence which you will present. Evidence may be given by the witness reading the pre-exchanged statement of evidence to the Court or the Court pre-reading the statement of evidence or another method.

Where evidence of any witness is pre-read, the witness, when called at the hearing, will confirm the statement of evidence as correct and cross-examination will immediately follow. ¹²⁰⁷

A witness should bring to the hearing any field notes, calculations, workings, references and other materials used as a basis for the evidence. These may need to be referred to in cross-examination.

Cross-examination

You will have the opportunity to cross-examine witnesses presenting evidence to support the opposing case. The purpose of cross-examination is to test the witness's evidence and, if possible, to uncover reasons why the Environment Court should not rely on it. You will have received copies of the evidence in advance of the hearing, to provide you with the opportunity to prepare cross-examination questions. If you have professionals assisting you, who have knowledge in a similar area, ask them to review the evidence to identify any weaknesses. Your cross-examination should focus on identifying flaws in the credentials and reasoning process of the witness. For example:

• Is the witness qualified in all areas on which he or she is giving evidence?
• Is the witness providing an objective or subjective assessment (only objective assessments should be provided)?
• Is the witness biased or prejudiced?
• Has the witness personally visited the site and carried out an assessment and does he or she have adequate and first hand knowledge of the issues in dispute?
• Do the arguments presented in the evidence relate to subject matter on which the witness is an expert?
• Has the witness relied on the opinions or evidence of others? If so, are there flaws in those opinions or evidence which would invalidate the witness's conclusions?
• Has the witness relied on correct factual information, or has she or he omitted facts which are inconsistent with the conclusions reached?
• Has the witness taken into account the relevant statutory criteria?
• Has the witness failed to take into account any relevant matters?
• Has the witness given inconsistent opinions in the past, such as in relation to other RMA cases?

You should keep your cross-examination short and to the point. Direct each question concisely to a specific point in turn. Ask closed questions that produce a ‘yes’ or ‘no’ answer. Know why you are asking a question. Try to avoid giving the witness the opportunity to strengthen his or her case.

Court decision

The Environment Court's decision will usually be reserved with a written judgment delivered after the hearing, usually within 3 months. When reaching a decision, the Court must have regard to the decision (usually of the local authority) which has been appealed. When reaching a decision on an appeal in relation to a proposed policy statement or plan, the Court can direct the local authority to prepare changes to the relevant planning document to address matters identified by the Court, and to submit the changes to the Court for confirmation. ¹²⁰⁸

Costs involved

The Environment Court charges a scheduling fee and a hearing fee for hearing proceedings. You will also need to cover any costs for your time and that of other professionals assisting you in presenting your case.

You may be able to cover some of these costs through application to the Ministry for the Environment for environmental legal assistance prior to the costs being incurred.

 You may also be subject to an award of costs against you if you are unsuccessful.

Last updated at 11:25AM on January 8, 2018