I'll see you in court

The Environment Court is one place most Landscape Architects will try to avoid as much as possible, Peter Kensington says.  But when your professional world is governed by the Resource Management Act he reckons it’s inevitable you’ll end up there at some stage.

Peter Kensington of Kensington Planning and Landscape Consultants outside the Environment Court in Auckland

“It’s not a hostile environment but it is a heated one,” he says. “Your professional integrity will be tested by opposition lawyers - who’ll try to discredit you - and by the court which will need to understand how you arrived at your position.

“You wouldn’t want to put a young Landscape Architect in there. You have to know how to handle yourself. But inevitably you have to take the plunge at some point."

“The most important piece of advice I would give to a young LA entering this arena for the first time is that no matter who is paying you to be there, your role is to assist the Court make its decision by presenting  impartial expert evidence – don’t be an advocate.”

Peter Kensington speaks from experience. He’s done his time in various planning and landscape roles with Wellington, Christchurch and Auckland councils. He was a principal LA and planner with Boffa Miskell, and more recently a principal planner within the resource consents appeals resolution team at Auckland Council.  He is now working for himself at Kensington Planning and Landscape Consultants Limited in Auckland.

Often called on as an expert witness he says in his experience, nine out of ten RMA disputes are sorted without having to hold an Environment Court hearing. A lot of the appeals he’s had involvement with are resolved in mediation overseen by Environment Commissioners.

Cost is one reason. With lawyers’ fees and expert witness costs individual parties could easily be looking at around $100,000 for a process that might not produce a favourable decision.

Kensington cites a case involving a dispute between neighbours in Auckland.

“Each wanted to maximise development on their property, but each was having an adverse effect on the other’s amenity values.  Both parties became entrenched in their respective positions and spent so much money fighting in court that at the end of it one of them couldn’t even afford to build their house. It was very sad, particularly when you continue to live as neighbours moving forward.”

Often results come down to who has the deeper pocket.

“People drag (the process) it on because they know their opponent’s hurting financially.”

Equally Kensington is aware that money can change hands during the mediation stage in side agreements.

“If your neighbour’s building a really big house that in some way impacts on you then they might agree to double glaze your windows, send you to Fiji while the works being done or give you some money to make you (your complaint) go away.”

These types of behaviours shouldn’t however influence  professional judgement and Kensington says he’d encourage LA’s to stay focussed on achieving win-win outcomes for all parties involved and for the good of the environment and the wider community.

He says LA’s have a key role to play in RMA disputes because they have the ability to read the land, to understand how it functions, it’s sensitivities and capacity for change,  and then help to communicate the impact developments will have to decision makers.  

“Our skills are very useful in conflict resolution as we can design and illustrate effective solutions.”

Kensington suggests a good way for new LA’s to get experience in the court arena is to buddy up with an experienced practitioner who will lead discussions at mediation and deliver the tougher evidence at hearings while the newer LA assists at mediation and walks the court through non-contentious issues.