As of 31 July 2006, the Registrar of Incorporated Societies has Certified the Blueskin Bay Watch Incorporated Society.
Thanks so much to everyone for getting involved.
This is a big step, as it should now allow us to be recognized as a party to proceedings in up-and-coming resource consent applications, such as Alan Dippies development, and hopefully be entitled to legal aid in the event that it is required.
For instance, the decision on 1 August by the Environment Court to grant status to Purakanui Environment Group Incorporated as a recognized party to proceedings in the case of Potato Point, Purakanui.
I have a copy of the Environment Court Proceedings if anyone wants them drop me an email to mailto:l_h_paterson@hotmail.com. - also in the following comments for your interest too.
Monday, July 31, 2006
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Decision No. C 'e4- /2006
IN THE MATTER of the Resource Management Act 1991 (the
Act)
AND
IN THE MATTER of an appeal under section 120 of the Act
BETWEEN BLUESKIN PROJECTS LIMITED
(ENV C 292/05)
Appellant
AND DUNEDIN CITY COUNCIL
Respondent
BEFORE THE ENVIRONMENT COURT
Environment Judge J A Smith (sitting alone pursuant to section 279 of the Act) Considered in Chambers at Christchurch Submissions
Mr R J Somerville QC for Blueskin Projects Limited (the appellant) Mr M R Garbett for the Dunedin City Council (the Council)
Mr N S Marquet for the Purakaunui Environment Group Incorporated (Purakaunui) DECISION AS TO STATUS AND WAIVER
Introduction
[1] Purakaunui Environment Group Incorporated (Purakaunui) gave notice on 13 February 2006 under section 274 of the Act that it wished to be a party to proceedings ENV C 292/05. This notice was included in a notice covering 20 individual submitters to the application and was filed within the period prescribed in the statute. The notice of the individual submitters is accepted but that for Purakaunui is disputed. The Respondent Council does not oppose the participation of Purakaunui.
[2] Subsequently a notice of motion for Purakaunui to be made a party and consequential waiver application was made, dated 7 July 2006.
[3] The issue before the Court is the status of the group.. If the notice of 13 February is valid then issues as to the 7 July notice do not arise. Originally arguments for Purakaunui appear to have been advanced on the basis it was a successor to the individual submitters pursuant to section 2A of the Act.
[4] However, in light of decisions of the Court, particularly the recent decision of Baxter and Tikey v West Coast Regional Council - 1, Purakaunui no longer advances such an argument.
[5] In the application filed on 7 July 2006, they seek status as a section 274 party and a waiver under section 281, having regard to the late filing. That application was filed some five months after the date for the appeal and nearly four months after the date for filing a section 274 notice expired.
Issues
[6] Two major matters are conceded by the appellant and these are:
(a) that the group represents a relevant aspect of the public interest;
(b) that no undue prejudice to the appellant would arise from the joinder.
In fact, Purakaunui has participated since the first pre-hearing conference and has been involved in a subsequent mediation held between the parties. I also accept as a fact that Purakaunui represents the same aspect of the public interest as the 20 individual section 274 parties already involved in the process.
[7] Mr Marquet has advised at paragraph 34 of his supporting submissions:
... that if the Society is accepted as being a person representing a relevant aspect of the public interest then it is anticipated that no submission will be made individually by the Submitters referred to in the s 274 notice from counsel dated 13 February 2006.
[8] In light of the general discussion contained in the submissions of the parties, it appears to me that the incorporated society is concerned that it needs to be involved directly in the proceedings as it is the only party that can receive legal aid funding.
[9) The three basic propositions of Mr Somerville, opposing the application, are:
(1) that there are no exceptional circumstances for granting the application to a
legally represented body after such a significant delay;
(2) that the relevant aspect of the public interest is already represented by a
number of individuals working in concert; and
(3) there is no resource management benefit disclosed by adding another party
at this stage outside the time prescribed in section 274(2) of the RMA.
Detailed arguments are advanced in respect of each of these propositions. There are no exceptional circumstances
[10] I agree with Mr Marquet that the preconditions to the exercise of a waiver under section 281 are met in this case. A general discretion follows thereafter. I agree that there is no prerequisite to the exercise of that discretion that there be exceptional circumstances. However the longer the delay the more difficult it may be to obtain a waiver (see Stapylton Smith and Ors v Banks Peninsula District Council - 2). Furthermore, it is difficult in the circumstances of this case to say that the notice of Purakaunui has been subject to a significant delay. Notice was originally given by Purakaunui of their interest prior to the expiry of the 30 day period and they have been involved in proceedings, both at the pre-hearing and mediation stages. The basis for their involvement was always subject to dispute and it appears to me that a change in the grounds upon which they argue eligibility is not a charge in their notification to the Court of their interest.
[11] On this basis I have concluded that Purakaunui are able to argue their jurisdictional status for hearing on any appropriate grounds. I agree that the Court reserved this matter until after the mediation in the hope that this would be resolved. That delay in dealing with jurisdiction cannot be visited against Purakaunui. It properly involved itself in the mediation process prior to the status dispute being resolved. To that end I do not think it is necessary for the Court to consider the later application or application for waiver if Purakaunui, relying on its original notice, has status. It is only in the event that it is determined that it does not have status under the first notice that the Court would need to go on to consider the later application. The later application does not vitiate the earlier notice. I see it as a back-up position by Mr Marquet.
The relevant aspect of the public interest is represented by a number of individuals working in concert
[12] Nothing prevents multiple parties having the same interests before the Court. As has been stated many times by superior courts, the resource management process is a public and participatory one. The Court also encourages the efficient disposition of the case before it wherever possible. It appears that the purpose of having Purakaunui representing_ the same interests as those individuals already having filed notice is to provide appropriate funding for legal representation.. Where appropriate, this is a matter that the Court should encourage as it aids the efficient disposition of cases before it.
[13] On the basis of Mr Marquet's advice that the other parties would not proceed further if Purakaunui was involved in the proceedings, it appears to me that this would encourage both the public and participatory objective of the Act and its aims toward efficient disposition of cases before it.
No resource management benefit by adding another party
[14] Mr Marquet's view on this is different to that of Mr Somerville. The experience of this Court has been that the involvement of appropriate professionals in proceedings can assist with the disposition and proper argument of cases before it. Certainly, the assistance of Mr Marquet would enhance the preparation of this case by Purakaunui and probably enable a more focussed argument of the issues before the Court at hearing.
[I5] In this regard there are significant differences between these proceedings and Baxter and Tikey mentioned earlier. We accept that here the residents are competent to undertake the appeal and may do so. The Court noted at paragraphs [41 ] and [42]:
It would be undesirable if the public and participatory nature of the Environment Court process and the intent of the legal aid funding was to be undermined by an overly technical approach to the parties before the Court. To that extent the position of the other parties in opposing this may be more based upon a desire to pre-empt Mr Baxter and Mr Tikey from obtaining legal aid funding than any proper RMA purpose.
I have no doubt that the Court has the power to conclude under rule 107 that it is desirable for the Residents Association to be substituted for Mr Baxter and Mr Tikey. At this stage, however, I am not satisfied that there is any evidence that legal aid funding is necessarily precluded. The Court has a countervailing concern that if the purpose of substitution is to avoid liability for costs, that would be an inappropriate use of the substitution rule.
[16] I have concluded that there is a significant difference between a party seeking to commence an appeal or substitute on an appeal and a party wishing to file a notice under section 274 of the Act. The main distinction is section 274(1) which provides:
The following persons may be a party to any proceedings before the Environment Court:
(c) a person who has an interest in proceedings that is greater than the public generally:
(d) a person representing a relevant aspect of the public interest:
(e) a person who made a submission in the previous proceedings on the same matter.
[17] So, while a person who has already participated may give notice under (e), there is also the ability for anyone meeting the criteria to become a party at the appeal stage only under (c) and (d). This is in sharp distinction to section 120 which provides a right of appeal only to:
(a) The applicant or consent holder.
(b) Any person who made a submission on the application or review of consent conditions.
[18] Accordingly, the Baxter and Tikey decision clearly related to whether or not the incorporated society was a person who had made a submission. As it was not, it could not maintain an appeal in its own right. As it is conceded in the current case that Purakaunui represents an aspect of the public interest, it is clearly entitled to file a notice under section 274. On this basis the notice of 13 February must be valid and therefore the application directly under sections 274 and 281 is not necessary. The original notice given in February 2006. must constitute a notice under section 274(1)(d).
Substitution
[19] Furthermore, this is a case where I would decide to exercise my discretion in favour of the substitution of the party under section_ 107 of the District Courts Act. In contradistinction to the Baxter and Tikey case, Mr Marquet in his submissions notes at paragraph 16:
... The maximum amount available is $30,000.00 plus GST per group per application. The fund is not available to individuals. Proceedings before the Court must have been lodged in the name of the group applying for funding and have been accepted by the Court as such, see Marsh [affidavit] paragraphs 17 and 18.
[20] Ms Marsh in her affidavit at paragraphs 17 and 18 states:
... However the current situation has arisen and we were not eligible for funding unless recognised by the court as having legal standing. This had accrued mainly through the documents in our possessions having been acquired at the time of the formation of the group. The MFE updated their application in 2006 and there it was clearly stated that legal standing in court was important.
PEG Inc [Purakaunui] wishes to be recognised by the court as a party. Funding by ELA fund will enable us to have legal representation and call expert witnesses in order to fully be able to represent the public interest.
[21] The Court noted the evidential lacuna in Baxter and Tikey at paragraph 40:
On the other hand, Mr Baxter and Mr Tikey have set out quite clearly their concern that they may not be able to obtain legal aid funding for the appeal. I am not clear that the application for, funding is necessarily barred if made by the incorporated society, even if relying upon the appeals of Mr Baxter and Mr Tikey. That is an assumption I dm being asked to make without any evidence to that effect.
[22] In this case there is clear evidence before the Court that legal aid funding is not available without the-involvement of Purakaunui. On this basis under section 107 1 would conclude that it was desirable to have Purakaunui substituted as a party for the 20 individuals.
Conclusion
[23] In light of my conclusion as to Purakaunui's status, such a conclusion under section 107 may not be essential. However, in light of Mr Marquet's clear indication that the other parties would not proceed further, it appears to me that the matter could proceed on the basis that the other parties withdrew their section 274 notices. Accordingly, I have concluded that Purakaunui does have status as a section 274 party. I would expect to receive advice in writing from the section 274 parties or their counsel that the individual notices are withdrawn and/or substituted by that for Purakanui.
[24] In light of this decision, the Court grants leave for the parties to seek a further telephone conference if any further issues arise for consideration.
[25] Although costs are generally reserved on this matter, this does not appear to be an appropriate case to make any such order. However, the issue is generally reserved for consideration at the conclusion of the case.
DATED at CHRISTCHURCH this
28th day of July 2006
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