2013-05-28-council-agenda - Taupo District Council

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ITEM NO: ,6 TO: FROM: SUBJECT: SIGNIFICANT DECISION: COUNCIL Corporate Solicitor Proposed Environment Court Practice Direction Mediations NO DATE: 28 May 2013 OBJECTIVE DOCUMENT ID: A11 07388 EXECUTIVE SUMMARY The Acting Principal Environment Uourt Judge (Judge Newhook) is seeking submissions on a proposed change to the Court's practice in respect of the mediation phase of Environment Court proceedings. Submissions are due by the end of May. The current practice of the Court encourages parties to attend mediation armed with "full authority to settle". This approach is usually acceptable to Councils in respect of appeals against resource consent decisions. Generally however, Councils do not send their representatives along with full authority in respect of plan appeals because they regard the final decision to accept a mediated settlement as one for the full Council to make. The current practice requires any party who will not give their representative full authority to advise the other parties in advance and the other parties then have a choice to not agree to the mediation. It is very rare for any party to "pull out" because a Council gives such a notice. The proposed change would have the practical effect of requiring the Council to give its representatives full authority to settle in all cases. If they do not give such authority the mediation would almost certainly be cancelled and the case would go straight to a hearing. It is arguable that the RMA (sections 34 and 34A) does not allow the Council to delegate full authority to officers but only to a Council committee. This would mean that the Council would need to create a committee, give it full authority to settle the case and the committee would need to attend the mediation. The other choice is for the Council to not agree to mediations. Going straight to Court hearings will be likely to increase the cost of cases. The proposed approach is unreasonable. SUGGESTED RESOLUTION That the Council authorises the Corporate Solicitor and the Policy Manager to file a submission with the Environment Court opposing the proposed Practice Direction.
proposed Environment Court Practice Direction], [28 May 2013] /6// REASON FOR REPORT Page 2 The Environment Court is inviting submissions in respect of a proposal to change the way mediations are conducted. The Council needs to consider whether to make a submission on the proposal. Submissions close on 31 May 2013. BACKGROUND The Current Process: When there is an appeal to the Environment Court against a Council decision it is usual that the parties attend Court run mediation. These mediations have a high success rate. While the parties cannot be forced to attend mediation they are encouraged to do so. The Court can award costs against a party that acts unreasonably by refusing to agree to mediation. The current practice of the Court is that all parties are encouraged to send representatives to the mediation with what is called "full authority to settle". Often the process of mediation brings out solutions which no-one has thought of before they attended the mediation. Obviously the most desirable set up is for everybody to be able to agree while they are still at the mediation so that the final "deal" can be put together and signed by all parties and the mediator before anyone leaves. There is some risk that parties will "renege" from a deal if they leave the mediation without final sign off. If a party intends to send representatives who do not have full authority to settle they are required to notify the other parties in advance. The other parties then have an opportunity to withdraw from the mediation. In practice Councils rarely give their representatives full authority and it is also rare that other parties withdraw in these circumstances. However, the mediation process can take longer in these circumstances with the mediation being adjourned while the Council is briefed on progress and then reconvened to finally settle the case. The Proposal Under the proposal, the notice advising that a party's representatives will not have full authority to settle will be referred to a Judge. The Judge will call the mediation off except if there are "special reasons in the context of the particular mediation". A general policy not to send fully authorised representatives will not be acceptable. If this policy comes into force then the Council will be required to send fully authorised representatives to all mediations. A copy of the proposal is attached as Appendix 1 . DISCUSSION The Court is, properly, concerned about the resources that it puts into mediations and wishes to use those resources efficiently. Wasted mediations waste resources. It is probably reasonable to expect Councils to send fully authorised representatives to mediations where the appeal is against a resource consent decision. When a Council makes a decision on a resource consent it is applying a set of facts against the "law". The law in this case is the Council's own District Plan and the RMA. In an appeal, the Court is interpreting the same, or updated, facts against the same "law". There is no policy element to the decision. The arguments are almost always technical in nature. The same argument applies when the Council is a submitter (s274 party) to another Council's Plan. In that case the Council is "just another party". However, in the case of an appeal against the Council's own Plan the case concerns the Council's policy making powers under the RMA. The Council should, rightly, be concerned that the result of the mediation would put in place a Plan that the governance arm of the Council might have had no input into. In this sense mediation is different to a full hearing. At a full Court hearing the Court has the power to "rehear" the Plan and "order" the Council to change its Plan. From the Council's point of view the most efHcient way of dealing with Plan appeal mediations is to send officers along with certain goals but require them to bring the proposed settlement back to the Council for final approval.
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TDC Agenda 28 May 2013 Apologies Co
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ITEM NO TO: FROM: COUNCIL Democracy
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[Proposed New Street Names], [28 Ma
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2013-05-28-council-agenda - Taupo District Council

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