Environment Court

4. Procedure at Appeal Hearings

4.1 Order of parties

4.1.1 The Court usually conducts an appeal against a decision on an application for a consent, approval or permit as a complete rehearing. When hearing such an appeal falling under the standard track, the Court will normally call first upon the person who applied for the consent, approval, or permit to state his or her case, and then to call the evidence in support of it - followed, in turn, by the cases of those who support the grant. Then the Court will call upon those parties who oppose the grant of the consent, approval, or permit to present their cases.

4.1.2 The order of parties in complex case track matters (such as plan appeals) is a matter for the hearing Judge. Wherever possible, the order of parties should be discussed at a pre-hearing conference, or made the subject of prior directions. If in respect of a particular appeal or group of appeals it appears that it will be helpful for the Court to call first upon the Council to present its case before calling upon the applicants or other parties who would ordinarily commence, the Court may so direct, either of its own motion or on the motion of any party. This may apply even when appeals in a group are not to be heard together.

4.1.3 Where there is a burden of proof upon a particular party, the Court will usually call first upon that party to state his or her case and call evidence.

4.2 Presentation of cases

4.2.1 The Court expects that when parties open their cases, they will outline the circumstances and the nature of the evidence to be called, state the resource management factors relevant to their case, and state the legal principles upon which they rely.

4.2.2 The Court does not normally allow parties who have heard all the evidence of opposing parties prior to opening their cases to make further submissions in reply. After all the evidence has been heard, the parties who stated their cases and called their evidence before hearing the cases and evidence of those parties opposed to them, may have an opportunity to address the Court in reply. That opportunity will be confined strictly to replying to those cases, and is not an opportunity simply to repeat that party's case. Persons who appear solely in support of a principal party are not normally allowed a separate opportunity to reply.

4.3 Presentation of evidence

4.3.1 Unless paragraph 4.3.2 applies, evidence-in-chief will normally be given by the witness reading the pre-exchanged statement of evidence (see paragraph 2.15.1), of which 4 copies are to be made available for the use of the Court, and additional copies for the other parties. Four copies of exhibits and graphic presentations, such as documents or photographs, should be produced where practicable. Where matters of primary fact are in issue, the Court may require evidence-in-chief to be given in viva voce examination by question and answer, avoiding leading questions.

4.3.2  Section 276(lA)(b) empowers the Court, whether or not the parties consent, to direct how evidence is to be given to the Court. The Court may direct that evidence be given by -

(a) the witness reading the pre-exchanged statement of evidence to the Court; or

(b) the Court pre-reading the statement of evidence; or

(c) a combination of (a) and (b), or another method.

This issue should be clarified at a pre-hearing conference or in prior directions. Where the Court has directed that the evidence of any witness is to be pre-read, the witness, when called at the hearing, will confirm the statement of evidence as correct, and cross-examination will immediately follow.

4.3.3 The preceding paragraphs outline the Court's general practice. However, the Court has power to regulate its procedure in such manner as it sees fit. It may therefore modify its procedure in particular cases if the interests of justice, and the orderly and logical presentation of evidence, so require.

4.4 Viewing of site or area at issue

4.4.1 In many cases, the nature of the Court's work renders it desirable that the site or area at issue in the proceedings be viewed by the Court. In general, the taking of a view assists the Court in better understanding the evidence presented in Court. The Court's normal practice is to confer with the parties during the hearing over the taking of a view, its timing, a suggested itinerary, and any other relevant details that the parties or the Court may raise.

4.4.2 If the taking of a view should present the Court with additional or different information to that provided in Court, or information that no witness has correctly or accurately addressed in evidence in Court, and the Court considers the information is of a significance that might influence it in determining the proceedings, the parties will be consulted by minute of the Court, or orally at a reconvening of the hearing, or via a judicial conference. The purpose of such consultation will be for steps to be put in train to ensure that the parties are duly heard in relation to the information concerned before the case is determined.

4.5 Costs

4.5.1 Where an appeal is withdrawn after being set down for hearing, the Court will normally award costs against the appellant in favour of the other parties in respect of their preparation for hearing.

4.5.2 Where an appeal under the First Schedule to the RMA has proceeded to a hearing, costs will not normally be awarded to any party.

4.5.3 If the decision appealed against would have imposed an unusual restriction upon the appellant's rights, and the restriction is not upheld, costs may be awarded against the respondent. On other appeals, the Court will not normally award costs against the public body whose decision is the subject of the appeal.

4.5.4 One factor which will be relevant in considering whether to order payment of costs, and in fixing the amount of an award, will be whether any party has been required to prove undisputed facts which, in the Court's opinion, should have been admitted by other parties. In particular, a party may avoid liability for the costs of other parties proving undisputed facts by lodging and serving a statement specifying which of the statements or findings of fact contained or referred to in the respondent's decision the party admits, and which of them the party requires to be proved at the appeal hearing. Any such statement should be made within 15 working days of receipt of the respondent's reply to the notice of appeal.

4.5.5 In giving the decision on an appeal, the Court may reserve costs without indicating whether or not an award will be made.

4.5.6 If no timetable for dealing with costs is set in the substantive decision, the default position, which applies whether or not costs are expressly reserved, is that -

• any party claiming costs should lodge a claim, supported by particulars, within 10 working days of the date of issue of the decision; and

• any party from whom costs are sought should lodge a reply within a further 10 working days; and

• the applicant for costs may respond within a further 5 working days to any relevant matter raised for the first time in the reply.

4.6 Communicating with the Court

4.6.1 Where any party seeks to communicate with the Court on any matter relating to the merits of the case or its outcome, otherwise than in open Court or at a judicial conference, such communication must be by way of a memorandum lodged with the Registrar and served on other parties, so that other parties may have the opportunity to respond. It is generally inappropriate to seek to communicate with the Court after a hearing has concluded and prior to the issue of the Court's decision.