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RMI11

Resource Management Act - Strategic engagement under the RMA - public and clients

NZ $75.00
Derek Nolan  
Chair: Derek Nolan
Russell McVeagh
Auckland
View all authors
Published: 20 July, 2011
Pages: 146

Introduction

The July 2011 Resource Management Act - Strategic Engagement under the RMA - Public and Client Intensive was a highly successful and well attended seminar for the many lawyers and other resource management practitioners who attended.

Following nearly two years of progress with one of the most extensive range of RMA reform initiatives since the Act was passed in 1991, the Intensive was aimed to assist intermediate and senior lawyers to be in a position to best advise private clients, councils, local organisations and individuals on the relevant procedures now available under the RMA. They include the new range of options to select from when seeking approval for new activities and developments, each having a range of risks and benefits that must be considered.  The experience of a number of projects that have gone through the new procedures provided valuable insights and information on how best to proceed.  The Intensive provided an in-depth and strategic examination of the reforms and how they affect strategic engagement under the RMA.  It also provided extensive guidance on the best paths to follow.

The first paper in the seminar booklet is a Case Update by Martin Williams.  This paper focuses on leading recent decisions of various courts interpreting and implying the RMA, with an emphasis on those provisions of the Act that were amended by the Resource Management (Simplifying and Streamlining) Amendment Act 2009.

Among the decisions examined include ones on the following: the legal effect of new plan rules; involvement of trade competitors in resource consent processes; new notification tests; the direct referral procedures; the reinstatement of the right to seek security for costs; the removal of general tree protection rules; the increased maximum penalties and consideration of alternatives. 

The paper by Michael Garbett The Practitioner and Client Perspective contains a useful analysis of the timeframes for decisions on large projects under the RMA prior to the 2009 amendments, and then compares the timeframes that have taken place to date for the first projects since the 2009 amendments through the Board of Inquiry process or by direct referral to the Environment Court.  He also examines cost issues arising under direct referral; the impacts of the new discount regulations and the increased filing fee for appeals; and the changes to the frequency by which policy statements and plans must be reviewed.  The author concludes that in all of these areas there have been some good gains out of the 2009 amendments.  The author then examines the early cases on security for costs and on general tree protection rules and finds that there have been poor or no results in these areas since 2009, as well as uncertainty in the area of trade competition.

Professor Elizabeth Toomey from the University of Canterbury provides a thoughtful and helpful paper called Theoretical RMA Underpinnings of RMA Participation.  She reminds practitioners of the public participatory nature of the RMA and then tracks the changes to the legislation since 1999 which have impacted on such rights including, in particular, the 2009 amendments.  Professor Toomey then has particularly useful sections in the paper of when participation is detrimental and when it makes sense.  She then looks at the optimum methods of public engagement, drawing on the McGechan principles of consultation, and she provides useful guidance to lawyers as to how best to engage the public.  She concludes with a section on necessary standards to ensure effective Maori participation.

The paper by Trevor Robinson and James Gardner-Hopkins entitled Participation in a Brave New World gives detailed guidance to the procedures and on the benefits and disbenefits for direct referral to the Environment Court, or when making applications to the Environmental Protection Agency for resource consents or plan changes to be processed by a Board of Inquiry, or when the Minister has called-in an application and directs that it be heard by either a Board of Inquiry or the Environment Court.  The authors set out detailed advice to practitioners on the decisions that need to be made and how to get the best out of the procedure, as well as bringing attention to the issues of cost and to some other constraints that follow under the new timeframes.

The final paper by David Kirkpatrick and Graeme Todd entitled Engaging with the Court - Evidence Tips and Pitfalls is an outstanding paper which refreshes practitioners in these areas as well as providing useful new guidance in light of the amended practice note from the Environment Court and other changes in procedures.  It addresses the role of counsel and proper briefing; the choice of experts; preparing evidence; the independence and impartiality of experts; it comments on liability for negligence by lawyers and experts; and examines the issues of both scientific evidence and evidence that might be considered incomprehensible.  The paper goes on to make recommendations about tailoring your case; it updates lawyers on developments in caucusing; and then moves on to cross examination, dealing also with questions posed by other parties and by the Court.  It concludes with some particular issues arising from the Board of Inquiry process.  This paper also has useful appendices that will be valuable to practitioners.

Authors

Chair: Derek Nolan.  Authors: Michael Garbett, James Gardner-Hopkins, David Kirkpatrick, Trevor Robinson, Graeme Todd, Elizabeth Toomey, Martin Willams

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