Christchurch Earthquake delays Mackenzie decision

Because the paperwork is locked up in the red zone, the Christchurch earthquake has delayed the Commissioners decisions about the Mackenzie hearings.

Paul Rogers said on behalf of The Commissioners in a memo on the 4th of April that
the Canterbury earthquake of 4 September 2010, and the significant aftershocks
experienced in Christchurch on 26 December 2010 and 22 February 2011 have
had effects on the timing of release of the decision.

The September earthquake destroyed one of the Commissioners‟ offices. This
resulted in that Commissioner needing to spend time on other pressing issues
other than decision-writing. It also caused delays for that Commissioner in terms
of access to materials to enable decision-writing.

The 22 February 2011 earthquake affected the Christchurch Central Business
District (CBD) and another Commissioner‟s office. That office remains locked
down and unavailable. It is situated within the „red zone‟ of the CBD. Written
records, hearing notes, and evidence with notations have not been available since
22 February 2011. Copies of evidence have been made available from other
sources. However, attendance on earthquake-related matters (such as finding,
securing and relocating to new premises, and dealing with a multitude of issues)
have had impacts upon time available to devote to decision-writing.

Thus, both earthquakes have (hopefully understandably) delayed the decision
release process.The Commissioners concluded that the best they could do was to give
all participants an assurance that the decision is being progressed as rapidly
as possible. The length of the hearing, the volume of evidence produced – both in terms of the
hearing itself and, particularly, in relation to condition sets – means that there will
be significant time spent in reviewing and assessing that evidence.

“The point in time when the final critical “conditions material” was produced to us
was not until mid-January 2011. Thus, a critical part of our deliberations and
assessment was only recently commenced in early February 2011. The 22
February 2011 earthquake occurred after their early February deliberation session.
Thus the earthquake has had a very material effect on work related to the
decision’. The case is a very important case; it raises critical and complex issues, which will
take time to resolve. It would not be wise nor is it appropriate for the Commissioners to pick a
projected end date for the release of the decision. Suffice to say a decision will be
released in the form described above as soon as practicable.

Counsel for Southdown Holdings Ltd, Five Rivers Ltd, and Killermont Station Ltd are anxious to have a decision date .

29th MINUTE OF COMMISSIONERS IN RESPONSE TO MEMORANDUM OF COUNSEL ON BEHALF OF SOUTHDOWN HOLDINGS LTD, FIVE RIVERS LTD, AND KILLERMONT STATION DATED 24 JUNE 2011
Request
1 Counsel for Southdown Holdings Ltd, Five Rivers Ltd, and Killermont Station Ltd (the applicants) respectfully requests that we provide a date by which the decision on the applicants’ resource consent applications are to be finalised and further that this date be as soon as possible.

2 Counsel points out that the length of time that this process has taken is placing the applicants under considerable strain, both financial and emotional. We are informed that large amounts of capital are tied up in the hearing and the applicants wish to have certainty as to what may be undertaken on their properties.
Response

3 At paragraph 2 of his memorandum, Counsel for the applicants rightly records some of the issues that are impacting upon our ability to complete our deliberations, and the writing and issuing of the decision. Those matters in themselves are having and have had a material impact on our ability to finalise and issue decisions.

4 The other points that Counsel does not refer to, which in our view are important, are the manner in which the applications have been presented to us. By that we mean the applicants have, in summary form, presented to us their view of the assimilative capacity of the entire catchment along with their view the existing environment in terms of discharges, and finally their view as to the likely quantity of discharges if all resource consents before us are granted.

5 This approach is new and novel. It involves very complex expert evidence, which requires expert and careful consideration.

6 Additionally, in terms of the Waitaki Catchment Water Allocation Regional Plan we are required to take a catchment-wide assessment and consider we must do that in respect of all of the applications.

7 We cannot issue individual decisions until we have completed a full evaluation of all of the applications before us. To issue some decisions before others would be unwise, particularly where we have not completed consideration and assessment of all applications, including the proposed conditions.

8 In short, the applications were presented to us as, effectively, a single case. Secondly, in our view, given the resource management issues arising from these applications we consider we have no choice but to issue all decisions at once.

9 Returning to the issue of proposed conditions, it is well worth pointing out, we think, that in terms of all applications we have not been presented with an “agreed” set of conditions. A process occurred between all participants, which had as one of its goals reaching agreement on conditions. Rather, we have been presented with a tabular format
giving differing views from different participants about their preferences in terms of conditions. While that portion of our work is well in hand, it is a considerable undertaking.

10 It is regrettable that the process is taking a lengthy period of time. However, this group of applicants and all other applicants were under no illusion, we believe, that consideration of the issues and the issuing of a decision would take a considerable period of time.

11 There are 104 applications before us. Some applications have taken much longer
than others to assess, evaluate and determine. However, taking a very simplistic
approach of allowing a minimum of a fortnight per application it is, in our view,
not surprising that our determinations have taken time to date and will take
further time to complete.

12 We do not consider it would be responsible of us to provide a date on which
decisions on the applicants’ applications will be issued, for the reasons we have
advanced. In reality, there may very well be issues that we focus on as we
traverse and re-traverse the materials that we have before us and thus intimating
a date when decisions may be available is unrealistic.

13 This group of applicants and all other applicants can be assured the
commissioners are working as speedily as possible to issue decisions.

Dated at Christchurch this 30th day of June 2011

Some of the applicants are getting impatient and are contemplating judicial review as the following minute shows.

30th MINUTE OF COMMISSIONERS
Introduction
1 On or about the 11th of August 2011 we were forwarded, by Environment Canterbury, a copy of correspondence from Mr Kelvin Reid dated 1 August 2011.

2 Mr Reid set out a range of matters in his correspondence. However, he raised one core concern, which was to do with our unwillingness to give any indication at all as to when the decisions may be forthcoming.

3 Mr Reid also recorded that his clients were contemplating seeking judicial review, presumably in relation to our reluctance to intimate when a decision would be forthcoming.

4 He asks Environment Canterbury if it would investigate whether (we) the Commissioners would reconsider our timetable and our refusal to give an indication of the likely time period within which a decision may be forthcoming.
Discussion

5 For Mr Reid’s information we advise that our timetable is always under review. The Commissioners convene a weekly “Skype” video-telephone conference. An item on our agenda for those meetings is timetable and likely dates when a decision will issue. Our timetable always receives attention and is always under review.

6 As Chair, I wish to emphasize that all of the Commissioners are devoting their full time and attention to ensuring the decision is progressed in a timely fashion.

7 In terms of our reluctance to give an indication of the likely time period within which a decision may be forthcoming, I should explain.

8 We have been hesitant to give an indication as there is significant variability in terms of the time it takes to complete decisions for different applications. Some of the applications present a range of challenges and issues and consequently the decisions are complex and take a considerable period of time. In contrast, other applications are more straightforward and the time it takes to draft a decision is much less.

9 We did not wish to give an indicative date and find that we would not be able to comply with that indication. We thought it better that we signal that we are working in a concentrated fashion and we would issue the decision as soon as we possibly could, rather than nominate a date and face disappointment if that date were not meet.

Outcome

10 On reflection and taking into account the matters raised by Mr Reid, it is clearly the applicants’ preference to receive, as Mr Reid asks for, an indication of the likely time period within which the decision may be forthcoming.

11 Doing our very best to assess a range of factors, the Commissioners can and do indicate that a decision will in all likelihood be available in the week commencing

21 November 2011. That is our very best and diligent estimate of when a decision is likely to be forthcoming.

12 We still have considerable work before us in terms of further review of evidence and review of decisions, and consideration of conditions.

13 If it appears that the indicative date we have given above is unlikely to be meet,
we will issue memoranda as soon as we have information before us to that effect.

14 We also should signal that we intend within the next few weeks to issue our
decision in respect of the application by the Upper Waitaki Community Irrigation
Company.

15 We are also currently considering we should issue decisions on the “smaller”
applications. However, that would require us to deviate from the approach that
we had earlier settled upon.

16 As before, the hearing remains adjourned.

Dated at Christchurch this 23rd day of August 20
Paul Rogers
Commissioner Chair on behalf of the Committee