David McMahon is an accredited Independent Hearing Commissioner and resource management consultant at RMG with particular expertise in statutory planning and process. He has been a Commissioner since 2001, and has worked on a large number of plan change, resource consent and designation hearings in Wellington, the lower North Island and across the South Island.
In this article (which is part two of a three part series), David discusses the decision making process.
In part one David discusses the increasing trend for councils to use independent commissioners, and in part three he identifies areas for improvement in how councils work with commissioners, and some of the challenges commissioners face.
In part three (the final one of a three part series), David identifies areas for improvement in how councils work with commissioners, and some of the challenges commissioners face.
What happens during the decision making process?
- After the hearing
As a general rule, we don’t close the hearing on the day the submitters or applicant/proponent finish speaking. We usually adjourn the hearing for two reasons.
Firstly, we often do a follow up site and locality visit. In many instances there are particular properties or places we want to visit a second time based on material we have heard during the course of the hearing; usually from submitters.
Secondly, an adjournment provides an ideal opportunity to collate the information in front of the Panel to ascertain whether there are any material gaps that should be plugged by one or more of the parties. Nine times out of ten I have usually flagged these information requirements to the parties during the hearing but the immediate post-hearing point is an ideal time to perform this form of ‘stock take’.
Actually there is a third reason for an adjournment; that is to give either (or both) the Reporting Officer and the Applicant some time to prepare their respective ‘closings’. For the Reporting Officer this is usually giving them adequate time to reflect on what they have heard (from the applicant and submitters) during the course of the hearing and to reduce that to a written update to their section 42A report. For the applicant this is an opportunity to provide their traditional right of reply in writing.
I usually minute the above process so everyone knows what is expected and the timeframe involved. Normally we reconvene at another time to hear those ‘closings’, but sometimes it’s possible to just consider the papers without reconvening.
- Making the decision
Where I am acting as the Chair, I have a role to educate the hearing panel, and ensure all views are considered. At the commencement of deliberations, I go around the room to see where everyone sits on the matter we are deciding – whether a plan change or a resource consent – what they are happy with and what bugs them, and we get those things up on the whiteboard. Once people see their issues listed, they feel less obliged to keep bringing up the same points.
These things are not necessarily taught in the commissioner training – but they are what I can offer.
Councillors are generally receptive to working through how we make a decision first, before arriving at the actual decision. We look at the issues and the context before reaching a decision.
Sometimes councillors want to jump immediately to a decision; that is inevitable and what they are often used to in LGA forums. But my role is to promote a logical decision making process and ensure we have addressed all issues that are relevant to arriving at a decision. This is important as the reasons for the decision need to be clearly stated in the formal determination.
I use two whiteboards to structure the decision making process. One for the decision outline and one to develop each section in that outline. The first is the broad structure of the decision and helps provide context for the decision-making process. The second represents the ‘skeleton’ of the write up of each section (topic or issue) of the decision. At each stage in the process the notes on the boards are photographed and this informs the creation of a decision report covering:
Part 1 – Introduction – background and proposal
Part 2 – Issue definition and a summary of what we heard
Part 3 – Evaluation – what we make of what we heard
Part 4 – Statutory considerations
Part 5 – Recommendations.
- Decision writing
Independent commissioners (ICs) bring decision writing skills to a Panel. ICs can either write their own decisions or delegate to a decision writer, or use a combination of both. I employ both methods depending on the complexity of the matter being considered. However, on complex proceedings, working with a hearings adviser can be more efficient than the panel creating this decision report. It’s ideal for the hearing adviser to attend the hearing, to hear the submissions first hand. Writing up can be done remotely, but it is more difficult.
Even though councils no longer have to make decisions on individual points on district and regional plan matters, I still use a table to record individual decisions on every submission and further submission point to make sure everything is covered. I encourage councils to adopt this table approach in the submission summary and in the section 42A report (usually as an appendix) as it allows the decision to focus on the issues in contention rather than become a prolonged narrative on submitter points.
- Issues approach
I like to take an issues approach. This decision report example relating to the delisting of a heritage building in Wellington (Plan Change 81) covered 11 issues. The decision report clearly states how evidence was weighed and balanced. It’s clear why the decision was made. It also notes why a different decision could arise at appeal stage if other evidence which was tabled (but not tested) was considered in a different forum.
What is the role of local knowledge in the decision making process?
Local knowledge is both useful and a hindrance.
In a hearing, you can only know what you’re told in the written/verbal material placed in front of you at the hearing (a bit like a jury). Commissioners are there to hear, to weigh and to balance the evidence. Whilst a Panel Member’s technical knowledge may assist them in testing certain evidence, it is not appropriate for Panel Members to substitute their own knowledge for the absence of evidence.
Local knowledge can also be very useful, for example being able to advise the other Panel Members that a council has decided to address heritage issues through Long Term Plan funding and non-regulatory education rather than through the district plan. Local knowledge of the good spots for a decent coffee is also critical.
What is your process for reaching a decision when the independent commissioners on a Panel don’t agree?
I try and break down the issue – is it limited to a particular component of the decision or is it the total decision?
I also attempt to isolate the reasons for the disagreement – are they valid; are they RMA related; and are they capable of being addressed through the addition or deletion of a particular provision (on a plan matter) or conditions (in the case of a resource consent)?
Really, it’s a case of exploring all possible solutions to the disagreement, and if there’s still no consensus then accepting that a dissenting or alternate view/decision may be the outcome. In this case it’s important that Panels either have an uneven number of members, or if it is an even number, that the Chair has a casting vote.
Will use of independent commissioners increase decision making consistency across New Zealand?
I hope so. It can’t help but increase awareness of how best practice is evolving around the country. In this sense I really hope this series of articles generates some interest in the use of ICs around the traps and in particular the use of Mixed Panels, and also helps share some of my thoughts with other Commissioners.
What do you like most about working as an independent hearing commissioner?
Achieving an efficient and effective outcome is immensely satisfying, as is having opportunities to train others.
I also enjoy meeting a diverse range of people with a variety of skills, and travelling to places like Ohakune in summer when it is very quiet (out of the ski season), and Alexandra in the middle of a very cold hoar frost. Every hearing is different.