Points to consider before going to the Environment Court

It now takes significantly less time to resolve an appeal in the Environment Court, but it can still be a long process. The court regulates its own proceedings and timeframes but must do so in a way that promotes timely and cost-effective resolution.

Many matters are now resolved through negotiation or mediation and do not require a formal court hearing. But it still takes time to reach mediated settlements, and it might not be possible to resolve all matters through these options.

By lodging an appeal or application, you have asked the court to resolve the dispute, and the court has ultimate control over timing and the procedures. Wasting the time of the court or other parties is frowned upon and may mean you have to pay costs. You should provide information promptly or as the court directs.

You don’t have to be represented by a professional when presenting your case to the Environment Court, but a resource management professional (eg, a planner or a lawyer) can pull various aspects of your case together. They can talk to you about the likely success of your appeal, based on previous court decisions and the law. This is important, because the court can order parties to pay costs (see below).

A professional can also ensure that you follow the right procedures, including presenting your action (your case or appeal) correctly and notifying the right people, and that you exchange evidence with the other parties. Community law centres (and, in some areas, environmental law centres) can also help.

You should think carefully about any specialist input you might need to support your case. This might include hiring a professional to give evidence on an aspect of your case (eg, a traffic engineer or landscape architect).

Table 1 sets out the filing fees for lodging most appeals and interlocutory applications (applying for decisions secondary to the main claim) or with the Environment Court.

There are also scheduling fees and hearing fees that apply to most appeals.

Table 1: Filing fees for the Environment Court

Other costs

There are also a number of ongoing costs you should consider. They can include:

• lawyers’ fees
• costs of obtaining and preparing evidence
• travel to hearings or mediation meetings
• taking time off work to attend meetings.

If a court mediator is appointed, the process will be free. But if the parties agree to engage another mediator, the parties will need to meet the costs.

You can reduce some costs if you join with other people in bringing your case to the court and agree to share them.

Environmental Legal Assistance Fund

Find out whether you are eligible for any financial aid. One source is the Environmental Legal Assistance Fund, which is administered by the Ministry for the Environment. It assists not-for-profit groups engaged in proceedings of the Environment Court and boards of inquiry on some matters.

If costs are awarded against you

If you decide to bring an action, there is a risk that costs might be awarded against you if you are unsuccessful. An award of costs can be made against you in a variety of circumstances and can be enforced by the District Court.

This might occur if you:

• cause unnecessary delays for the court or other parties because you do not meet deadlines
• withdraw your case before a hearing where the other party has already incurred preparation costs.

However, the court usually prefers parties to pay their own costs, and it is not automatic that the successful party is awarded costs. Sometimes, the court may even award costs in favour of an unsuccessful party.

Security for costs

In some cases, the Environment Court may be asked to make an order to secure costs before allowing an appeal to proceed. If the court grants a security for costs, the person making the appeal has to prove that they have money to pay for any award of costs if they lose the appeal. The court does not have to order security for costs just because it receives a request. It will make its decision after taking into account the interests of all sides involved in the appeal.