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 (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.
In part one David discusses the increasing trend for councils to use independent commissioners, and in part two he discusses the decision making process.
What can council officers do to help independent hearing commissioners, to ensure a smooth hearing and decision making process?
The most important things are early engagement and separation of functions.
The sooner the Commissioner or panel is engaged, the sooner they can establish the pre-hearing process and timetable to be followed; for example pre-hearing meetings, expert conferencing/caucusing and further information requests.
Providing sufficient time for those actions to occur, whilst potentially delaying the commencement of the hearing, can usefully serve to narrow the issues in contention and therefore shorten the actual hearing duration or even in some (albeit limited) cases can completely resolve issues without the need for a hearing. The written directions to parties that a Commissioner can provide once appointed can readily assist in providing the scope and space for such conferencing/resolutions.
Although it is difficult for smaller councils without the luxury of large planning teams, it’s also essential that wherever possible a council maintains a separation between their administrative and reporting functions when dealing with hearing commissioners and panels.
Quite often the reporting officer is handling administrative arrangements, including commissioner liaison, and this is not appropriate. A reporting officer is no different from a submitter or an applicant. It is not okay for the hearing panel to be liaising directly and individually with any individual party to the proceedings, whether submitter, applicant or reporting officer because there’s the risk of influence, or a perception of influence.
What are some of the challenges independent hearing commissioners face?
The statutory time frames for limited notified and fully notified consents mean that if a large proportion of the time is used up in processing, it constrains the time available for deliberations and decision-making. In this respect, pre-circulation of evidence (including the section 42A report) has been the biggest game changer due to the impact on timeframes. This is particularly so for resource consent hearings, whereas plan hearings have fewer time constraints.
Accommodating pre-circulation requirements into the time frames set down for limited and fully notified resource consent hearings is now mandatory but it does put pressure on all parties. Expert witnesses, whilst conscious of meeting the expectations of commissioners and working in the spirit of the code of practice, understandably have an eye on the ticking clock which means that they will still need to produce a brief of evidence following conferencing and have it circulated as per the due dates. Commissioners need to be cognisant of these tensions and pressures when setting their own timeframes. The quid pro quo for experts is that if they are successful in narrowing the issues during conferencing this will reduce the scope and length of their evidence.
There is more opportunity for resolution of issues through a prehearing process for plan reviews and plan changes because the time frames are more liberal. So, whilst prehearing discussions enable a narrowing of the issues to be considered at the hearing, this can only effectively be done for plan changes and plans, unless in the case of resource consents the applicant agrees to put the application process on hold to accommodate pre-hearing conferencing. Otherwise, there isn’t much time for talking and everyone becomes locked into pre-circulation of evidence.
Early engagement is critical for this to be successful. For example, I have been engaged to assist with the decision making on a plan change at Tasman District Council. I have known this for 18 months, which means I can make sure I have the time available to do it, and I can be across all aspects of the process as soon as the official delegation has been made by the Council. This usually occurs prior to notification.
Once submissions close, I issue directions through a minute. This goes out to all parties involved in the hearing. It provides certainty about the process and gives a likely timeframe. In the minute, I outline the key issues raised in submissions and indicate I want parties to get together to resolve as much as possible before the hearing.
- Role separation
Working with councillors who are less experienced as hearing panel members can be challenging if they are finding it difficult to separate their roles as a hearing commissioner and as a councillor. In addition, some panel members are less willing to be advised on processes governing deliberations and outcomes. Fortunately, this is a rare occurrence. Overall, and as discussed in Article 1 of this series, I firmly believe mixed panels are a good idea.
- Out of scope submissions
Sometimes submitters raise matters that are not relevant to the proceedings. I don’t enjoy having to explain to the submitter that the issue is ‘out of scope’ or outside the RMA jurisdiction. I do allow some latitude for submitters to address such issues but it’s usually on the basis that they are best advised to use their speaking time more effectively on matters that I can control as opposed to matters that are outside my jurisdiction.
- Categorisation of submissions
As discussed in Article 2, I like to take an issues approach to deliberations, which can be assisted or impeded by the way submission points are categorised, and reported on in the section 42A report. In this respect, having reporting officers group a whole range of submission points in a ‘general’ category in the section 42A report is not helpful.
- Voluminous material
One of the noticeable trends under the RMA is the massive amount of written material produced by its statutory instruments and associated processes. This is very prevalent in RMA hearings, particularly with the amount of pre-circulated material that is produced and needs to be read prior to the hearing commencement. While this essentially shortens the hearing process, it places a huge demand on panel members to read the material beforehand and to assimilate the content.
This is the final in this series of articles on decision making under the RMA. I’ve enjoyed contributing to it and hope it has been of interest to all participants in RMA hearings. Hopefully it has stimulated some discussion even if you don’t agree with all that has been canvased.
Finally, I would like to thank Debra Bradley for initiating this series and getting me motivated to contribute under her editorial tutelage. Her grasp of these matters is impressive and I would commend her services to councils throughout the country.