IN THE MATTER BETWEEN. Environment Judge J R Jackson (Sitting alone under section 279(1) RMA) Hearing: at Christchurch on 25 July 2018

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1 BEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO 0 AOTEAROA IN THE MATTER AND BETWEEN Decision No. [2018] NZEnvC 139 of the Resource Management Act 1991 of an appeal pursuant to section 120 of the Act SELWYN QUARRIES LIMITED (ENV-2016-CHC-59) Appellant AND CANTERBURY REGIONAL COUNCIL & OTHERS Respondents Court: Environment Judge J R Jackson (Sitting alone under section 279(1) RMA) Hearing: at Christchurch on 25 July 2018 Appearances: M A Thomas for Selwyn Quarries Limited P Maw and K Woods for Canterbury Regional Council J Turpin for himself Date of Decision : 17 August 2018 Date of Issue: 17 August 2018 PROCEDURAL DECISION A: The Environment Court, acting under section 279(1)(a) of the Resource Management Act 1991, declines the application by the Canterbury Regional Council seeking that the court recall its Minute dated 13 July B: Under section 279(1)(a) of the Resource Management Act 1991 the court orders that Selwyn Quarries Limited lodge and serve all (or any) existing risk assessments (of its final amended proposal) as lodged with the Canterbury Regional Council in support of the "consent memorandum" within one working day of receiving this decision. SOL v CRC & Ors. Procedural Decision

2 2 REASONS Introduction The issues [1] This is an unusual application: the court is being asked to recall its Minute dated, rather inauspiciously as it turns out, Friday 13 July [2] The grounds of the Canterbury Regional Council's application 1 are first that the court has unfairly criticised the respondent; and second that the court has impugned the integrity of an expert witness for Selwyn Quarries Limited ("SQl"). SQl supports the Canterbury Regional Council ("the CRC") on the second ground. [3] There used to be a power to "review"2 directions which were given in haste, but that has not been brought into the District Court Rules 2014, so there is a preliminary issue as to whether the court has power to recall a Minute, given that normally the court would be regarded as functus officio. Mr Maw gave full and careful submissions 011 this issue which I will outline shortly. Background [4] In January 2015 SQl applied for a suite of resource consents from the CRC under the Resource Management Act 1991 ("the Act" or "the RMA") to deepen and backfill part of an existing quarry at 48 Selwyn Road, in the Selwyn District. [5] Various persons including Mr J Turpin made submissions on the application. One of the submitters' concerns was potential contamination of aquifers which are used by local residents for the supply of drinking water. [6] By decision dated 31 August 2016 Commissioners appointed by the CRC declined to grant any of the consents. The decision included this passage about the risk of contamination of Christchurch's water supply: 2 Contained in a memorandum of counsel dated 18 July Analogous to the High Court Rule 7.49 to vary or re scind an interlocutory order if it is shown to be wrong.

3 3 Many submitters have identified the high quality of Christchurch's untreated, aquifer sourced drinking water as one of the City's most precious natural resources, and as something which must be given the highest level of protection possible. They have emphasised that the risk of contamination is too great and that these risks far outweigh the potential benefits to the community from the aggregate gained, especially given the level of uncertainty about various aspects of the proposal and the complexity of the underlying aquifer system. We strongly agree. We hope the Applicants, as the good corporate citizens they told us they are, listen to the community in which they operate and depend on. [7] SQL appealed to the Environment Court. Various persons joined as parties under section 274 RMA including: Mr J Turpin; and the Yaldhurst Residential Ratepayers' Association ("the YRRA"). YRRA did not attend the hearing but lodged subsequent submissions by which I have disregarded as out of time. [8] Mr Turpin's section 274 notice is quite discursive and includes these statements: 3. The Commissioners heard Expert Evidence from all sides in the course of their Hearing so I find it difficult to understand one reason for an Appeal is that their decision "is not based on available scientific evidence", Presumably if it wasn't available they didn't present it! 4. And as regards "Experts" let's remember the old adage, "he who pays the Piper calls the tune". Makes it hard to say then that when considering the Appellants Experts that they have no interest in the outcome when presenting. Indeed that's how we end up with conflicting Expert Evidence on the same data and in the end we then by definition no doubt have non experts deciding between them. The court inferred from that and Mr Turpin's statements at a preliminary conference that he has little faith in (especially but not exclusively) the experts of the applicant SQL.

4 4 [9] The matter went to mediation in February Obviously what went on in the mediation is protected by privilege. [10] On 16 February 2018 a "consent memorandum" was lodged with the Registrar. It proposed a substantially amended suite of resource consents which would have lesser effects on the environment if carried out with the extensive conditions agreed by the signatories to the memorandum. The memorandum records: Position of the parties 17 The Appellant and Respondent are satisfied the agreed conditions will avoid, remedy or mitigate any adverse effects of excavation and deposition of material below the highest groundwater level. CIAL has maintained a watching brief on this appeal but has no issue with the position reached and supports the Orders sought. 18. YRRA does not oppose the settlement of the appeal in accordance with the agreed condition s. 19 Mr Turpin and Mr Bennett have advised counsel for the Appellant and counsel for the Respondent that they do not wish to sign this memorandum. 20 No respon se has been received from Mrs Edwards. It was signed by almost all parties (including the YRRA) but not by Mr Turpin. [11] Given the concerns of section 274 parties over the potential contamination of water supplies, the statement by the parties to the consent memorandum that any adverse effects will be avoided, remedied or mitigated (my emphasis) is not very informative, let alone reassuring. How does one mitigate contamination of well-water for example? Nor do the proposed conditions make any specific proposal for remediation (e.g. by chlorination of individual wells). [12] The lodging of a "consent memorandum" which is not by consent because it has not been signed by all parties has become an increasingly common practice in the Environment Court in recent years. It is not sanctioned by any rule or practice note. The practical utility of that course, where there is a hold-out party, is obvious in that it puts pressure on the non-signatory to face the consequences that there might be a need for evidence - usually expert evidence - after a prima facie case is made for the appellant (applicant). However, this case also demonstrates that there are issues of fairness for the hold-out party which need to be considered carefully. [13] Obviously the court cannot make any order until the position of any holdout party is resolved or they have been struck out as a party for failure to comply with directions to

5 5 front up. But in the meantime the court usually tries to expedite matters by checking 3 the proposed consent order and the terms of the proposed resource consent, in the exercise of the court's supervisory jurisdiction. [14] At a prehearing conference before me on 21 March 2018 it appeared that Mr Turpin was not in a position to lodge any expert evidence so I considered the court should - since aquifers appeared to be potentially at risk of contamination - exercise its supervisory jurisdiction by asking the Council (as respondent) to lodge its report on the amended application with the court (and serve them on the parties). To my surprise, counsel (Mr Maw) advised, as I recall, that there were none. The court then directed that the CRC commission and lodge reports dealing with Mr Turpin's concerns. [15] At the prehearing conference on 21 March 2018, Ms Thomas advised that SOL was concerned about the lack of legal advice Mr Turpin has in progressing his case and his lack of resources for engaging experts. She advised that an application for costs was likely to be filed'- [16] On 20 April 2018 the CRC lodged reports by 0 L Scott (a scientist) and Ms J Todd (a planner). An Environment Commissioner read them and wrote a list of comments and questions subsequently stated in the court's Minute of 22 May The court there expressed a number of concerns over the reports and directed that the Council lodge an amplified risk assessment. [17] The CRC decided it did not like the course the "consent" process was taking and decided to adopt a different approach. The CRC lodged a memorandum of counsel advising that the CRC declined to lodge further reports. The CRC suggested the case should be dealt with as a defended matter. [18] The court accepted the change of approach by the CRC and that it had no power to direct the CRC (per se 5 ) to lodge further reports. In an attempt to move things forward, the court then issued the contentious Minute of 13 July 2018 directing that SOL: Often this is carried out by the court's research counsel (whose work is rarely acknowledged, but is so here) or in technically difficull cases by an Environment Commissioner with relevanl expertise. Record of prehearing conference dated 22 March 2018 at [2]. The court's power under seclion 276(1)(c) RMA is to call any person to give evidence. The Minute overlooked the court's power under seclion 276(1)(b) RMA to "call for anything to be provided in evidence which will assist".

6 6 (1) lodge and serve all existing risk assessments of its final amended proposal by Tuesday 17 July 2018 ; and (2) if SQL considers its existing reports do not adequately asses the ri sk(s) of aquifer con tamination, then SQL is to advise the Registrar by 20 July 2018 whether it will commission a report complying with the requirements set out above, and when it can be lodged by. The directions are not challenged. As indicated above, it is another part of the text of the Minute which the ere wants to have recalled. [19] The passages of particular concern (with the offending words emphasised) read: [3J The CRC is correct (Mr Maw's para 12) that the court has no power to direct CRC to provide further expert reports to the court. The court had th ought th at in view of the apparently rather embarrassing position in which the CRC had found itself - agreeing first to a "consent memorandum" with no written reports as to the risk to Christchurch's drinking water from contamination of aquifers, and second - belatedly - at the court's suggestion, supplying inadequate reports which do not address that risk in detail- that the CRC might accept the opportunity to improve its position for the record. [4J If the CRC is not prepared to give the court - and more importantly the public - a fu ll assessment of the risks that concerns over public safety and health appear to requi re in relati on to the aquifers under the site, then there are two options: (1) expert evidence is provided by the applicant; or (2) the cou rt calls for further reports itself. [5J The court was reluctant to suggest course (1) in the previous paragraph because of potential concern (from Mr Turpin and (now) the YRRA as s 274 parties) over " hired gun" experts for the appellant. We contemplated that supplementary reports showing that the e RC had (in the end) assessed the risks independently and conscientiously, would be filed by the erc. The court hoped that Mr Turpin would then be able to accept that, in the absence of any evidence from him, it would appear responsible and fai r to rely on the erc's position. [6J Obviously the CRC considers that unlikely since Mr Maw states: "Given Mr Turpin's position on the application to date, it appears unlikely that he will accept any assurances or evidence given by the respondent even if it is accepted by the court". Mr Turpin has challenged that in his latest memorandum. [7J The difficulty is that there still seem to be some gaps in the ri sk assessment of SQL's proposal so the court is not yet persuaded, regardless of Mr Turpin's position. The court is therefore in no position to assess the reasonableness of Mr Turpin's position at this stage.

7 7 [8] The CRC has chosen not to answer the court's doubts over whether the CRC has reasonably and fully assessed the potential risk of contamination of the aquifers under and downstream of the site. That course may be within the CRC's rights, although whether it is performing its duties as responsibly and carefully as it should is a matter the court may need to hear submissions on later. (Emphasis added) [20] The CRC then lodged its application for "recall". Issue 1: What is the court's jurisdiction to recall (or review) a procedural direction? [21] Mr Maw submitted that there are two possible sources of jurisdiction: first, while there is no procedure provided in the RMA to recall a Minute containing procedural directions, the Environment Court can regulate its own procedure under section 269 of the Act. Second, section 278 RMA allows the court to look to the District Court Rules for guidance. [22] In Norton v Mar/borough Districl Councifl in respect of an application for "recall" of a procedural decision, I stated: Counsel all treat the application as being for recall. As a matter of procedure I do not think that is correct. An ostensible final judgment may be recalled in certain circumstances - see rule 533 ofthe District Courts Rules but it would be very unusual to recall a procedural decision. In effect, because the District Courts Rules are applicable to these proceedings, the application is for a review (under rule 287(2) OCR of procedural orders and I will treat it as such. For a review, leave of the Court is required, and the purpose of the review is to enable a reconsideration upon a fuller argument: Jol/ands v Whitney. (footnotes omitted) [23] Since that decision was given, the District Courts Rules have changed. Under the (new) District Court Rules 2014 the power of review has been restricted to situations where there has been a change in circumstances after the issuing of a procedural direction. [24] Mr Maw submitted that under those Rules the court has available to it rule 11.9, the power of recall in respect to judgments issued by the court: 6 Nonon v Marlborough District Council (EnvC) Decision C131/09, 21 December 2009, at [4].

8 Recalling judgment A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed. [25] Is a Minute a "judgment" for the purposes of the Rule? Judgment is defined in Rule 11.1 as "include[ing] a decree or order of the court". Rule 11.2 then describes various types of judgment as follows: A judgment may - (a) be interim; or (b) be final; or (c) deal with any question or issue; or (d) order any accounts, inquiries, acts, or steps that the court considers necessary. [26] Mr Maw submitted that the court's Minute dated 13 July 2018 is a judgment dealing with a question that arose in the context of the proceeding. He then stated the question being "whether the court had jurisdiction to direct the Council to provide certain expert report(s) addressing questions asked in its Minute?" However, that is not really the issue in contention - which is not the court's directions but the observations in the Minute. [27] Alternatively, if the court decides that the Minute does not constitute a judgment for the purpose of Rule 11.9, then, in the absence of any other rule that prescribes a' procedure for seeking recall of the court's Minute, Mr Maw submitted that the court can rely on Rule 1.11 of the District Court Rules It states: 1.11 Cases not provided for (1) If any case arises for which no form of procedure is prescribed by any Act, rule, or regulation or by these rules, the court must dispose of the case as nearly as may be practicable in accordance with the provisions of the rules affecting any similar case or in accordance with the provisions of the High Court Rules. (2) If there are no relevant High Court Rules, the court must dispose of the case in the manner that the court thinks best calculated to promote the objective of these rules. Rule 1.11 recognises that there will be occasions when no rule governs a matter precisely, and is intended to fill those gaps. [28] Mr Maw also submitted that it is necessary to consider the consequences of the

9 9 Minute having been sealed. He said this is relevant because Rule 11.9 only applies before a formal record is drawn up and sealed, but it may also be necessary in a more general way because the court could be regarded as functus officio once a Minute is sealed. This issue was considered by the Environment Court in Lai v Auckland Council'. Lai involved an application for recall of a report issued after the objection giving rise to the report was withdrawn by the objectors. The court considered the consequences of the Environment Court affixing its seal to all decisions issued by it. The following passage is directly relevant 8 : [17] When the Environment Court issues a decision it is required to be sealed, th erefore on the face of it, that action would appear to prevent the court from recalling its report. The Environment Court procedures for sealing, however, are different from those which apply in the District or High Court. In the District and High Courts the decision is issued and the order is sealed thereafter. [18] In Nimbus Holdings Ltd v Christchurch City Council the Environment Court held that the sealing provisions of Rule 531 (now Rule 12.8 OCR 2009) are a procedural duty, and section 278(1) of the RMA does not apply to include them as part of the court's jurisdiction. The court held that it had its own statutory procedure for the use of its official seal, pursuant to sections 295 and 297 of the RMA. I agree with this interpretation. [19] In Nimbus Holdings Ltd the court further determined that there was a difference between a decision being authenticated with the seal of the court, and the process of sealing a judgment, to which the applicable District Court rule relating to recall of judgments applied. The court reasoned that the District Court rule distinguished between "the judgment" (in the sense of the order or decree), and "the written reasons" given by the court for its decision. I agree with this reasoning, with the result that I find that the sealing of the report does not create an impediment to the application for recall, as the affixing of it was simply for authentication purposes. To hold otherwise would mean that there were no circumstances in the Environment Court where a judgment could be recalled, given that the practice is for all Environment Court decisions to have the seal affixed to them. (footnotes omitted) [29] I respectfully follow the same approach in the context of this application; that is, that the sealing of the court's Minute does not create an impediment to the application for "recall", as the affixing of the seal was simply for authentication purposes. [30] However, I find it difficult to see why parties should be asked to traipse through m 2 7 ~ 8 ::5 Lai v Auckland Council [2011] NZEnvC 308; (201 1) 16 ELRNZ 819. Lai v Auckland Council [2011] NZEnvC 308; (2011) 16 ELRNZ 819, at [17] to [19].

10 10 the District Court Rules or High Court Rules, when to ensure justice and fairness the Environment Court has the direct power in section 269 RMA. I consider the court has power to review or recall a Minute under section 269 of the Act. [31] Lai v Auckland City Council is also useful because the Environment Court there summarised the general principles applying to an application for recall, as follows 9 : [22] In Ihe civil jurisdiction the leading case referred to which outlines Ihe applicable guiding principles is Horowhenua Council v Nash (No.2). The general principle is Ihat a judgmenl once delivered must stand for beller or worse, subject to appeal, but where a judgment has not been perfecled there are three categories of cases which may result in the recall of it The first two categories relate to a change or failure to draw the court's attention to a relevant statute, regulation or judicial decision of relevance and high authority, and the third identifies cases where for some other very special reason justice requires the judgment to be recalled. In this case the CRC relied on the third category - that there are some other very special reasons justice requires the Minute to be recalled. Issue 2: Was the CRC unfairly criticised? [32] On the first substantive issue Mr Maw put forward three sets of "very special reasons" which justify "recall" of the Minute. The first of the Council's concerns are 10 : 12. The Council is concerned with the suggestion that it finds itself in an embarrassing position on account of its experts not having recorded, in a level of detail as would only typically occur when preparing full briefs of evidence, all of its re asons in relation to potential contamination of Christchurch's drinking water from contamination of aquifers, 13. The court's doubts over whether the Council has reasonably and fully assessed the potential risk of contamination of the aquifers under and downstream of the site appears to be predicated on the lack of detailed written reports. However, it does not follow that simply because the Council's experts did not prepare wrillen reports, they did not rea sonably and fully consider this potential risk Lai v Auckland Council [2011] NZEnvC 308; (2011) 16 ELRNZ 819, at [15]. Mr Maw's memorandum 18 July 2018 paras 12 and 13.

11 11 [33] Second": 14. The Council also has concerns with the reference to the reports prepared by Dr Scott and Ms Todd (at the Court's request) as "inadequate reports which do not address th at risk [to Christchurch's drinking water from contamination of aquifers] in detail". Whilst Council accepts that the Court sti ll has questi ons in relation to this risk, it does not consider that the report prepared (relevantly) by Dr Scott was inadequate in thi s reg ard. [34] Third, that the Council's performance of its duties have been questioned. In relation to that point, I should preface the following discussion of a consent authority's obligations by emphasising that the court did not, in its 13 July Minute, make a finding that the CRC had breached its duties, rather I raised the possibility it had and said that the court might'2 (I used the present tense "may") need to hear submissions on the issue later. I did not expressly say so then but I had costs applications in mind since the issue of costs had been raised. I do not consider the third point any further at this stage beyond saying that I can see no special reason for the court's statement to be revoked. [35] A number of questions are raised by the facts of this case: (1) what are the duties of the consent authority (and of the court on appeal) when an application is changed after an appeal is lodged? (2) what are the duties of the consent authority when Signing an (amended) resource consent memorandum with the applicant? (3) what are the duties of the consent authority when it changes its mind about pursuing a consent memorandum and/or wishes to revert to the standard defended hearing approach? (4) at first sight has the CRC complied with its duties? (1) What are the duties of the consent authority when an application is amended on appeal? [36] The general principle about the amendment of applications on appeal was stated " 12 Mr Maw's memorandum 18 July 2018 para 14. Minute dated 13 July 2018 at para [8].

12 12 by the Supreme Court in Waitakere City Council v Estate Homes Ltd 13 ("Estate Homes"): When, on appeal 10 the Environment Court, an applicant seeks to have an application granted on a materially different basis from that put forward to the Council, considerable care is required before the Environment Court permits the matter to proceed on that different basis. Not every alteration in approach wou ld require an applicant to make a fresh application to the Council, rather than to proceed by way of appeal. It is a question of degree. Furthermore, as the majority of the Court of Appeal recognised, the question of any prejudice to other parties, and the general public, is always relevant. [37J In this case I assumed that SQL's amended application is within jurisdiction. The questions which the CRC should have had in mind are over prejudice to the section 274 parties - Mr Turpin in particular - and to the public. (2) What are the consent authority's duties when Signing a consent memorandum? [38J Beyond the obligations of fairness identified in Estate Homes, there is a gap in the RMA as to what a Council's obligations are if it changes its mind about a resource consent, particularly in the circumstances where a substantially amended application is put forward. [39J On any initial resource consent application, quite apart from the notification and participation procedures for potential submitters, the consent authority has (at least) two obligations to state a position on the application. The first is the section 42A RMA report which may be (but routinely is) prepared for (but not binding on) the consent authority, and the second is the duty to comply with section 113 by giving reasons for a decision. The latter states: 113 Decisions on applications to be in writing, etc (1) Every decision on an application for a resource consent that is notified shall be in writing and state- (a) the reasons for the decision; and (aa) the relevant statutory provisions that were considered by the consent authority; and (ab) any relevant provisions of the following that were considered by the consent authority: (i) a national environmental standard: Waitakere City Council v Estate Homes Ltd [2006] NZSC 112; (2006) 13 ELRNZ 33; [2007] 2 NZLR 149; [2007) NZRMA 137 at [35].

13 13 (ia) a national policy statement: (ii) a New Zealand coastal policy statement: (iii) a regional policy statement: (iv) a proposed regional policy statement: (v) a plan: (vi) a proposed plan; and (ac) the principal issues that were in contention; and (ad) a summary of the evidence heard; and (a e) the main findings on the principal issues that were in contention; and (b) in a case where a resource consent is granted for a shorter duration than specified in the application, the reasons for deciding on the shorter duration. (2) Without limiting subsection (1), in a case where a resource consent is granted which, when exercised, is likely to allow any of the effects described in section 107(1)(c) to (g), the consent authority sha ll include in its decision the reasons for granting the consent. (3) A decision prepared under subsection (1) may,- (a) instead of repeating material, cross-refer to all or a part of- (i) the assessment of environmental effects provided by the applicant concerned: (ii) any report prepared under section 41 C, 42A, or 92; or (b) adopt all or a part of the assessment or report, and cross-refer to the material accordingly. (4) Every decision on an application for a resource consent that is not notified must be in writing and state the reasons for the decision. [40] It seems strange that in the situation where a consent authority changes its position from its earlier reasoned decision that it does not have to give some reasons - in detail proportionate to the changed scale and intensity of the amended proposal - for its change of position. Some local authorities give relatively detailed explanations, but others do not, and I am not sure that the latter is an appropriate general approach. [41] There are two sets of reasons why a consent authority should give written reasons (which may simply be written reports for experts) for its (new) position on an amended application. The first and probably the more important reason is to avoid prejudice to both section 274 parties and to the public. Both sets of interested parties are entitled to rely on the first decision (and reasons) of the local authority as consent authority, so when it changes its mind and position they are entitled to know why, so that they can consider the reasons for the change. [42] The second reason is that it seems to me that a consent authority is acting only marginally less judicially when it decides to sign a "consent memorandum" than when it

14 14 makes its initial decision under section 113 on an application for a resource consent. In both cases a consent authority should give reasons for its position. This may only be another way of looking at the prejudice issue, but the discussion in the authorities is illuminating. [43] In Hollander v Auckland Council' Heath J quoted from the judgment of Elias C J in Lewis v Wilson & Horton Ltd 15 as to why the provision of reasons by judges was desirable: (a) (b) provision of rea sons is an important part of openness in th e administration of justice. The principle of open justice should be seen as "critical to the maintenance of public confidence in the system of justice. Without reasons, it may not be possible to understand why judicial authority has been used in a particular way". Put another way, transparency in the operation of the judicial process is enhanced through provision of adequate reasons for decision making; failure to give reasons "means that the lawfulness of what has bee." done cannot be assessed by a court exercising supervisory jurisdiction". Those who exercise judicial power must address the right questions and correctly apply the law. The "assurance that they will do so is provided by the supervisory and appellate courts". Their role is fundamental to the rule of law'. [Footnotes omittedj [44] This principle applies equally in the context of RMA proceedings. As the Environment Court stated in Wellington Fish and Game Council v Manawatu-Wanganui Regional Council17: when a consent authority does not give a reasoned decision. the public cannot be sure that resource consents are being issued in a principled and lawful manner. [45] I respectfully agree. In my view there are two further reasons for requiring reasons of a local authority's decision to change its mind under the RMA: (1) to ensure that the local authority takes responsibility for the decision (so it can less readily use a "we did not know" response if things subsequently go wrong); and I' f' f j;'i., -'1,., ~.ll q. I ~~,. '5 '6 17 Hollander v Auckland Council [2017J NZHC 2487 para [49J. Lewis v Wilson & Horton Ltd [2000J 3 NZLR 546 (CA). Hollander v Auckland Council [2017J (HC) para [49]. Wellington Fish and Game Council v Manawatu-Wanganui Regional Council [2017J NZEnvC 37 at [1J. [1 20J to [1 24]. [129J and [186].

15 15 (2) the important related issue that because section 120 decisions are, in most cases, about future activities and their (future) effects, the predictions as to effects can be proved wrong by events. If there is no record of the predictions (or assessment of risk) then there is much less probability that the decision-maker will improve its performance. As every scientist knows (or should know) it makes for a much more objective testing of an hypothesis if it is stated before the data comes in. [46J Relevant factors as to whether a party or the public has been treated fairly might include: has sufficient warning been given of the Council's change of mind '8? is there sufficient detail of the change of position and of the associated risk assessment'9? is sufficient detail given of the reasons for the change? (3) What are the responsibilities of a Council when changing direction (again)? [47] Two potential problems arise here. The first is a question about prejudice to the public. If the court, in its supervisory jurisdiction 20, asks hard questions about a proposed consent order, is it appropriate for a consent authority in effect either: to say "we have given you all the information we intend to"? and to place the evidential burden back on to the applicant? [48J On reflection the answer to the first question is probably "no" in most circumstances. The court has the power in section 276(1)(b) RMA to call for any evidence which the court (not the consent authority) considers will assist. The answer to the second question is probably "yes" but only when the consent authority acknowledges (and one hopes this does not happen too often) that it has made a substantive or procedural mistake in Signing the "consent" memorandum. [49J In either case there are implications as to whether there is prejudice to the public See Canterbury Regional Council v Christchurch City Council (EnvC) Decision C at [29]. Derived from section 104(1 )(a) and (c) RMA and the definition of "effect" in section 2 RMA. This being shorthand for the court s duty to be satisfied before making any order whether by consent or otherwise.

16 16 andlor parties. [50] In relation to potential prejudice to section 274 parties, perhaps a consent authority should make it clear from the outset: (a) that it supports any section 274 party being given a reasonable period of time (after receipt of reasons andlor reports from the applicant and especially the consent authority and mediation) to obtain expert advice; and (b) that threats by an applicant for costs are inappropriate - at least in circumstances where the consent authority has not given, and will not give, full (proportionate) reasons for its new decision until it lodges and serves its evidence. Of course, both those matters are in the control of the Environment Court but the position of consent authorities should perhaps be more conciliatory - or at least more fully explained - when a non-unanimous "consent" memorandum is lodged and served. [51] The second question relates to prejudice to the section 274 party. The result of the CRC's position is that, while only giving the slimmest of reasons for its decision, it has placed Mr Turpin in a position where he has to wait for the Council's evidence before he has its full on the record" assessment of the risks. (4) At first sight has the CRC performed its duties? [52] As I have tentatively held, in the interests of fairness to the public and to parties, the consent authority when changing its mind should give reasons for its new decision proportionate to the potential seriousness of the adverse effects. [53] When I asked counsel at the initial pre-hearing Mr Maw's response was, as I have recorded, that there were no such reports. However at the hearing before me on the application now before the court Mr Maw submitted: Where the court appears to express concerns with the Council's approach, is with the fact that the Council's experts did not record all of their reasoning in written reports. This, the court says, was a rather embarrassing position in which the CRC had found itself. I accept that some off-the-record (privileged) statements will have been given by the CRC during mediation.

17 17 [54] I was and remain uncomfortable with that submission for two reasons. First, the court's Minute of 13 July says only "apparently embarrassing ". Second, Mr Maw at the earlier pre hearing conference advised the court (when questioned) that there were no reports. I do not recall that his answer was qualified by the statement that there were no written reports. When (at the latest hearing) I questioned what reports were in writing Mr Maw then appeared to agree with my suggestion that there might be an chain between the Council and its experts. But there was never any suggestion - now, then or earlier - by the CRC that any s could be produced to the parties (or the court). [55] Mr Maw submitted that it does not follow that because the Council's experts did not prepare written reports, they did not reasonably and fully consider this potential risk. I accept that, but there is still a large difference between assessing risk "reasonably and fully" and publishing that assessment. It is a core minimum aspect of good science (and good RMA practice) that assessments are published so they can be checked. The old cliche that "justice must not only be done but be seen to be done" is also applicable here. [56] Another. of the CRC's concerns is the court's reference to the reports prepared by Dr Scott and Ms Todd (at the court's request) as "inadequate reports which do not address that risk [to Christchurch's drinking water from contamination of aquifers] in detail". [57] While accepting that the court still has questions as to the potential risks to Christchurch's drinking water, Mr Maw submitted that the criticism of Dr Scott's report as being "inadequate" is, with respect, misplaced in all the circumstances. I accept that "inadequate" is rather blunt and it could have been more tactfully expressed (perhaps "incomplete" or "not fully adequate" would have been preferable). The court did say why the reports were criticised: they did not analyse the risk in detail. [58] The court's concerns were over responsibility and transparency: not only did the Council give the barest of reasons - quoted above - for its change of mind about the substantially amended application but it had no written reports on which it relied and which could be lodged with the Registrar and served on the parties. /. ). If, ',' [59] I earlier suggested there are three tests for prejudice to parties to the proceeding: has sufficient warning been given to other parties of the Council's change

18 18 of mind 22? is there sufficient detail of the change of mind? is sufficient detail given of the reasons for the change? [60] In this case sufficient warning was probably given through the mediation process; and the second question is probably answered by the proposed conditions of consent. But I have doubts about whether there is a satisfactory answer for the third. [61] The CRC had no written reports stating its reasons for its decision. It could have simply adopted any reports given to it by SQL. I have no idea whether such reports exist (although I did ask for them in the directions of 13 July 2018) and perhaps it is unlikely that Mr Turpin would have been satisfied by them. However, at least Mr Turpin and the public would have known what the ere was relying on. [62] As matters stood, there was nearly a complete omission to give any reasons for the Council's decision. There was obvious prejudice to Mr Turpin and to the public in the omission to give any detailed reasons. [63] Given the circumstances and my (tentative) understanding of the law as to fairness, I cannot find that paragraph 3 of the 13 July Minute was wrong - let alone especially wrong - when it recorded the "apparently rather embarrassing position" of the erc. [64] As for the reference to inadequate reports, that was a reference to the questions the court had in relation to them. I have already accepted that the court's language was rather blunt, and apologise for that, but the fact remains that the court (viewed collectively) still has reasonable doubts about the completeness of the reports. Those doubts should reasonably be satisfied before the court endorses the "consent" memorandum. Issue 3: Has the court impugned the integrity of an expert witness? [65] Mr Maw submitted that the other very special reasons which justify recall of the Minute of 13 July 2018 are that the court's reference within the Minute to "hired gun" experts for the appellant appears to have been made without knowledge of who had been 22 See Canlerbwy Regional Council v Chrislchurch Cily Council (EnvC) Decision C 113/ at [29].

19 19 providing independent expert advice to the appellant, and leads to the inference that the court is calling into question the integrity of that independent witness. The first part of that sentence is correct (although I fail to see its relevance given the matters discussed below); the second is an invalid inference. [66] Mr Maw says he does not recall any parties using the term "hired gun" at the March 2018 pre-hearing conference. While that precise term was not used at the judicial conference, it is quite clear from Mr Turpin's section 274 notice (quoted above) that he has concerns over the independence of experts and that the flavour of that was repeated at the pre-hearing conference. [67] The purpose of the "hired gun" comment was to describe a perception from the section 274 party. To avoid that issue even arising the court gave the opportunity to the CRC to remedy its lack of a complete risk assessment to increase the probability that the section 274 party might be satisfied with the reports from the Council (as a more objective party). The court hoped that the clearer objectivity of the Council's experts might be perceived by Mr Turpin as remedying any potential unconscious bias from the reports of Sal's experts. [68] The CRC seems to regard the court's Minute of 13 July as impugning a particular expert. On the facts that seems implausible: the Minute did not refer to anyone in particular and does not say who was engaged in the proceeding for SQL. Further, it is difficult to understand why I should have known that SQl would call any particular expert to give evidence on the risk assessment required by the court. [69] This is a non-issue: there is simply nothing in the court's Minute which could be reasonably read as applying to a particular expert. Further, the court's Minute was not about any potential witness lacking independence but about the perception of that by Mr Turpin given his sensitivity on the issue as evidenced by his section 274 notice quoted earlier. [70] The court did not say any particular witness was not independent, or even might not be. Nor did the court say it had particular concerns in this proceeding over the independence and objectivity of expert witnesses. The court's Minute of 13 July 2018 simply recorded "potential concern" (from Mr Turpin) over a lack of independence and objectivity. The court was referring to Mr Turpin's attitude (expressed in his section 274 notice) quoted above. Whether or not any expert witness might have failed in their duties

20 20 to the court (see the court's Practice Note 2014 at section 7) is an issue yet to be determined (should Mr Turpin pursue the question raised in his section 274 notice). Outcome [71] The court will decline to recall its Minute dated 13 July [72] While I accept that one word in the Minute was a little hard on Dr Scott - and I have apologised for that - I consider that my relatively blunt language falls well short of justifying a recall of the Minute. [73] There is one consequential matter arising out of the actual directions given by the court on 13 July I note that since the hearing, SQL has lodged some reports dated 14 August 2018 from various engineers. Those reports do not strictly comply with the directions given in paragraph [14] of the court's Minute dated 13 July although I will treat them as a response to direction [14](2). But SQL has not yet complied with direction [14](1), so I will repeat the order in a slightly modified form to ensure that no privileged documents are unfairly forced into the public domain. I consider both Mr Turpin and the public should know what assessment of the revised proposal had been made by SQL and passed onto the Council prior to the execution of the "consent memorandum". [74] Finally, I also record that the counsel for SQL questioned the power of the court to call a Medical Officer of Health. I advise counsel to study the court's powers in section 276 RMA, as to its power to call any person to give evidence (if the court decides to do that). ent Judge ---