Substitution

Proceedings which are brought before the Environment Court are deemed to be also brought on behalf any successors. ¹²³⁷  A successor includes an incorporated body which replaces an unincorporated body of persons, where those groups are composed of substantially the same members. ¹²³⁸

This means that submissions can be lodged by an unincorporated body and this body can incorporate later and act as the successor to the original body, provided that the incorporated body is composed of substantially the same members as the original body.

According to Hansard (a record a Parliamentary speeches) it was intended that section 2A would overcome the difficulty which could arise when a community group entered into a statutory process and then incorporated in order to protect the individuals from cost, by ensuring that the group would be seen as the same legal entity. ¹²³⁹

Because the RMA provides for the legal fiction that the successor is deemed to be the original party there is no need for the group to apply to substitute names in the proceeding. The group just needs to follow the procedure under 3.35.6 District Courts Rules 2009, which provides for change the name of the applicant on the record in cases where their name has been changed for whatever reason (eg marriage). ¹²⁴⁰

For the incorporated society to succeed the unincorporated group they must be "composed of substantially the same members as the predecessor. 'Substantially' certainly means more than 50% and may mean over 75% of the members of the preceding unincorporated body. ¹²⁴¹  The membership of the unincorporated group must be calculated at the date which the last action is taken under the RMA (eg the lodging of a submission) which qualifies the predecessor to exercise further rights or functions under the Act. ¹²⁴²

Last updated at 2:32PM on December 11, 2014