The Environmental Tribunal: the view from Auckland
8 July 2011
Access to environmental justice is as topical as ever. Delegates at the recent conference of the United Kingdom Environmental Law Association (UKELA), held in late June at UEA in Norwich (yards from the Climatic Research Unit much in the news) argued that the current regime in this country is unsatisfactory – because of the cost, but also, and less predictably, because of a lack of basic fairness.
One QC who specialises in planning law pointed to the fact that a developer who is dissatisfied with a planning decision can appeal it, but an affected third party (often a disgruntled resident) cannot. He commented off the record that in his experience both as an advocate and as a decision-maker, decisions were affected by the knowledge that developers could readily challenge refusals, whereas third parties could not challenge grants other than by way of judicial review.
This inequality is explicitly dealt with by the Environment Court of New Zealand. In the litigation working-group session of the conference, delegates were treated to an informative talk from Trevor Daya-Winterbottom, a barrister and senior lecturer at the University of Waikato. He explained that rights of appeal are extended to anyone who has made
submissions on a particular decision, permission etc. This could mean a disappointed applicant, or one which wished to challenge a condition of a permit, but it could equally mean a third party who lived near to a proposed facility.
The NZ Court also has a costs regime similar to that in the English Tribunal system, and one which would probably comply with the Aarhus Convention requirement that access to environmental justice should not be “prohibitively expensive” (see previous posts). In the Environment Court, there is no general rule that an unsuccessful party should pay the costs of the successful party. However, there is a limited residual jurisdiction to award costs against a party which has behaved unreasonably. This has the vital advantage for third party appellants that they know what their own legal bill will be, and that it will be no more than that.
The Court has taken an innovative approach to the precautionary principle. It does not apply the normal standard of the balance of probabilities when assessing future risk, i.e. it does not decide that because the likelihood of a particular harm occurring is less than 50%, therefore it will not happen. Instead, in a recent decision the Court held that it had to balance the seriousness of the potential risk and the percentage probability. If there was a small chance of serious harm – a 10% risk of catastrophic effects – the Court could refuse to permit that activity. This sounds a bit like the test adopted in projects affecting areas (SACs or SPAs) protected under the Habitats Directive –namely that the developer must show that no reasonable scientific doubt remains as to the absence of the effect of the development upon the protected sites –
he must thus prove an onerous negative.
The Court’s rules of evidence might also give English lawyers a moment’s pause. There is a justifiable concern about expert evidence, and in particular about “hired gun” experts. It is possible to obtain the reports produced by an expert witness in previous cases, and see if there is an inconsistency between the two. If the expert said in a previous case that a particular technology was unsafe, or that a particular was risk was considerable, and then in a later case appears to have changed his mind, the expert can be challenged on it. The possibilities for cross-examination (and humour) must be considerable.
The Coalition government is well-known for preferring mediation to litigation where possible. Some commentators, including practising lawyers, have felt that this is wrong, and is an unconvincing Trojan horse for the government’s deficit-reduction agenda. However, the experience of the NZ Court and other environmental tribunals shows what can be achieved. Before 2002, there was a backlog of some 3,000 cases. Woolf-style case management reforms were introduced there with a particular emphasis on mediation. The backlog was reduced by more than half, and 40% of cases are settled in whole or in part by mediation. But that is not the limit – moving off over the Tasman Sea, the Planning and Environment Court of Queensland operates a system of mandatory mediation, and 90% of cases settle before a hearing.
So there is a lot to consider for judges, lawyers and litigants in the First Tier Tribunal. However, as I said in my previous
post, whether the First TT ever develops the jurisdiction to deal with problems like those above is something on which we will have to wait and see.
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