Environment Court

By Principal Environment Judge R J Bollard

For some time now I have been looking to introduce a standard form of consent order for use by the Court. Hitherto there has been a variation between registries as to the format adopted where parties have proposed an agreed outcome to proceedings. It is desirable that that variation be changed to a uniform basis of approach via the proposed standard form as follows:

BEFORE THE ENVIRONMENT COURT

Environment Judge XXX sitting alone under section 279 of the Act

IN CHAMBERS at XXX

CONSENT ORDER

Introduction

[1] The Court has read and considered the appeal, the respondent’s reply, and the memorandum of the parties dated XXX .

[2] XXX has/have given notice of an intention to become a party/parties under s274 and has/have signed the memorandum setting out the relief sought.

And/or

[4] The Court is making this order under s279(1)(b) of the Act, such order being by consent, rather than representing a decision or determination on the merits pursuant to section 297. The Court understands for present purposes that:

(a) All parties to the proceedings have executed the memorandum (unless stated otherwise for specific reasons) requesting this order;

(b) All parties are satisfied that all matters proposed for the Court’s endorsement fall within the Court’s jurisdiction, and conform to relevant requirements and objectives of the Resource Management Act, including in particular Part 2.

Order

[5] Therefore the Court orders, by consent, that:

[Here follows the content of the consent order including reference to costs]

DATED                      this day of                              2006.

XXX
Environment Judge

The proposed form has been referred in draft to interested quarters such as the New Zealand Law Society’s Environmental Law Committee and the Resource Management Law Association. Both that Committee and Association have indicated approval. However, the counterpart Committee of the Auckland District Law Society, to whom the draft was also referred by request, expressed a concern over paragraph [4], observing that some parties might be prepared to endorse a proposed consent order "without considering that the order is within the Court’s jurisdiction or that it conforms with Part II of the Act". In any such case the Court expects the matter of concern to be drawn to its attention by the relevant party with accompanying reasoning, with the other parties advancing their counter reasoning as well, so that the Court can consider the position and determine what order (if any) should be made.

The purpose of the standard form of consent order recording the Court’s understanding, etc is to state on the face of the order what the parties themselves are expected to have turned their minds to and acknowledged in their consent memorandum supporting the making of the order. If any party should consider that the proposed order is not supportable, either in terms of jurisdiction or conformity with the Act’s purpose, notwithstanding an apparent willingness to otherwise "go along" with the order, that party has to represent its position candidly to the Court as indicated above.

Further to the above, the Court’s understanding in the context of the standard form will not be recorded in the manner shown in an individual case if the supporting memorandum of the parties’ counsel and/or representatives indicates a lack of consensus as discussed. In announcing the new standard form’s introduction, the matters pointed out in the two preceding paragraphs are particularly emphasised.

In order that legal counsel and others having business with the Court may have sufficient time to adjust in employing the new form of consent order, registry staff will continue to receive proposed consent order documentation for the Court’s consideration in such form as has previously been accepted until 30 November 2006. After that date, however, all draft orders accompanying consent memoranda will require to follow the new standard form. Notice to this effect appears also on the Court’s website (www.justice.govt.nz/environment/information/html.)