Terms of Reference: Board of inquiry on the proposed National Policy Statement for Renewable Electricity Generation

This page has information, provided as background, on the establishment and role of the Board of Inquiry appointed to inquire into the proposed National Policy Statement for Renewable Electricity Generation in 2008.

Establishment of a Board of Inquiry

The Minister for the Environment (Minister) has decided to develop a National Policy Statement for Renewable Electricity Generation.

Pursuant to section 46A(1)(a) of the Resource Management Act 1991 (RMA), the Minister has chosen to use the process set out in sections 47 to 52 of the RMA to advance the proposed National Policy Statement for Renewable Electricity Generation.

The Minister has appointed the board of inquiry (the Board), with the agreement of the Cabinet (Business) Committee (CBC Min (08) 18/4 refers). The letters of appointment set out the rate of remuneration and the terms and conditions of the appointments, including the requirement to comply with these terms of reference.

Role of the Board

The role of the Board is to inquire into and report to the Minister on the proposed national policy statement in accordance with sections 48 to 51 of the RMA, and within terms of reference set by the Minister. (See attached as Appendix One the full text of sections 45 to 55 of the RMA: National policy statements.)

Administrative support to the Board

The Ministry for the Environment (the Ministry) will provide such administrative support and assistance as the Board requires to carry out its functions efficiently and effectively.

Term of inquiry

The inquiry will run from the date of appointment set out in the letters of appointment until the receipt of the report and recommendations – under section 51(2) of the RMA – by the Minister.

Scope of the Board

Scope of matters to be considered by the Board and Board’s report

The Board must carry out those functions set out in sections 48 to 51 of the RMA. The principal function of the Board is to prepare a report and make recommendations to the Minister pursuant to section 51 of the RMA. In doing so it must consider the following matters, as required by section 51 of the RMA:

  • the matters in RMA Part 2; and
  • the proposed national policy statement; and
  • any submissions received on the proposed national policy statement; and
  • any evidence received; and
  • any other relevant matter.

Matters to be explicitly addressed

The Board should provide in its report recommendations, with reasons, on the wording of the proposed national policy statement, including the objectives and policies. The report and recommendations may also address:

  • the internal consistency of the proposed national policy statement as a whole, and ways to address any potential inconsistencies;
  • the level of certainty or clarity provided by the proposed national policy statement, and if this is inadequate, ways to improve it;
  • the removal or further refinement of issues, objectives and policies where this is appropriate for achieving the policy approach of the proposed national policy statement;
  • the identification of any unintended or unforeseen, but likely outcomes of the proposed national policy statement, and ways to address these.

Reference documents

In addition to the proposed national policy statement for renewable electricity generation, the Ministry will provide the following background reference documents to the Board:

  • the section 32 evaluation report on the proposed national policy statement;
  • relevant sections of the RMA;
  • such other documents as the Board reasonably requires in order to carry out its functions.

Other deliverables of the Board

Alerting the Minister

The Board should alert the Minister as soon as possible, in writing, if an unforeseen event occurs, or seems likely to occur, that could delay or prevent the Board reporting back within a year of notification of the proposed NPS.

The Board’s report to the Minister

The Board’s report should be sent to the Minister’s Office as a signed hard copy, and copied to the Secretary for the Environment, as an electronic copy.

Appendix One: Relevant sections of the Resource Management Act

Sections 44 – 55 of the RMA: National Policy Statements

45 Purpose of national policy statements (other than New Zealand coastal policy statements)

  1. The purpose of national policy statements is to state objectives and policies for matters of national significance that are relevant to achieving the purpose of this Act.
  2. In determining whether it is desirable to prepare a national policy statement, the Minister may have regard to—
    1. The actual or potential effects of the use, development, or protection of natural and physical resources:
    2. New Zealand's interests and obligations in maintaining or enhancing aspects of the national or global environment:
    3. Anything which affects or potentially affects any structure, feature, place, or area of national significance:
    4. Anything which affects or potentially affects more than one region:
    5. Anything concerning the actual or potential effects of the introduction or use of new technology or a process which may affect the environment:
    6. Anything which, because of its scale or the nature or degree of change to a community or to natural and physical resources, may have an impact on, or is of significance to, New Zealand:
    7. Anything which, because of its uniqueness, or the irreversibility or potential magnitude or risk of its actual or potential effects, is of significance to the environment of New Zealand:
    8. Anything which is significant in terms of section 8 (Treaty of Waitangi):
    9. The need to identify practices (including the measures referred to in section 24(h), relating to economic instruments) to implement the purpose of this Act:
    10. Any other matter related to the purpose of a national policy statement.

46 Proposed national policy statement

If the Minister considers it desirable to issue a national policy statement, the Minister must—

  1. seek and consider comments from the relevant iwi authorities and the persons and organisations that the Minister considers appropriate; and
  2. then prepare a proposed national policy statement.

46A Minister chooses process

  1. After preparing a proposed national policy statement under sections 45 and 46, the Minister must—
    1. use the process set out in sections 47 to 52; or
    2. establish, and then use, a process that—
      1. gives the public adequate time and opportunity to make a submission on the statement; and
      2. requires a report and recommendations to be made to the Minister on the submissions and the subject matter of the statement; and
      3. incorporates sections 51 and 52 as if their references to a board of inquiry were references to the person who prepares the report and recommendations.
  2. When choosing between subsection (1)(a) and subsection (1)(b), the Minister may consider the following matters:
    1. the advantages and disadvantages of having the proposed national policy statement made quickly:
    2. the extent to which the policy in the proposed national policy statement differs from the policies in—
      1. other national policy statements; and
      2. regional policy statements; and
      3. regional or district plans:
    3. the extent and timing of public debate and public consultation that took place on the policy before the proposed national policy statement was prepared:
    4. any other relevant matter.
  3. The Minister must not choose a process established under subsection (1)(b) if the proposed national policy statement includes a provision of the kind described in section 55(2A)(b).
  4. A national policy statement prepared after the use of a process established under subsection (1)(b) is a regulation for the purposes of the Regulations (Disallowance) Act 1989, but is not a regulation for the purposes of the Acts and Regulations Publication Act 1989.

46B Incorporation of material by reference in national policy statements

A national policy statement may incorporate material by reference under Schedule 1AA.

47 Board of inquiry

  1. The Minister must appoint a board of inquiry to inquire into, and report on, the proposed national policy statement.
  2. The Minister may, as the Minister sees fit,—
    1. set terms of reference for the board of inquiry; and
    2. set the rate of remuneration to be paid to members of the board of inquiry.

48  Public notification of proposed national policy statement and inquiry

  1. As soon as practicable after its appointment, a board of inquiry shall ensure that notice of the proposed national policy statement and the inquiry is—
    1. Published in a daily newspaper in each of the cities of Auckland, Wellington, Christchurch, and Dunedin; and
    2. Served on every local authority in New Zealand and such other persons and authorities as the board of inquiry considers appropriate; and
    3. Given such other public notification as the board of inquiry considers appropriate.
  2. Every notice for the purposes of this section shall be in the prescribed form and shall state—
    1. A description of the proposed national policy statement; and
      (ab) places at which the proposed national policy statement may be inspected or purchased; and
    2. That submissions on the proposed national policy statement may be made in writing by any person; and
    3. The closing date for submissions (which shall be not earlier than 20 working days after public notification).

49 Submissions to board of inquiry

  1. Any person may make a submission to the board of inquiry about a proposed national policy statement which is notified in accordance with section 48.
  2. Every submission shall be in writing, shall be served on the board of inquiry, and shall state whether or not the person making the submission wishes to be heard in respect of the submission, and shall also state any other matter prescribed in regulations made under this Act.

50 Conduct of hearing

  1. Sections 39 to 42A apply, with all necessary modifications, in respect of an inquiry by a board of inquiry into a proposed national policy statement as if every reference in those sections to—
    1. a consent authority or local authority were a reference to a board of inquiry; and
    2. a proposed policy statement were a reference to a proposed national policy statement.
  2. The board of inquiry must give at least 10 working days' notice of the dates, times, and place of the hearing of the inquiry.
  3. A person who made a submission has the right to be heard at the hearing.

51 Matters to be considered and board of inquiry's report

  1. The board of inquiry must consider the following matters:
    1. the matters in Part 2; and
    2. the proposed national policy statement; and
    3. any submissions received on the proposed national policy statement; and
    4. any evidence received; and
    5. any other relevant matter.
  2. After considering the matters, the board of inquiry must arrange for a report and recommendations to be made to the Minister within any terms of reference set by the Minister.

52 Consideration of recommendations and approval of statement

  1. The Minister must consider a report and any recommendations made to him or her by a board of inquiry under section 51 and then may (but need not) make any changes to the proposed national policy statement that he or she thinks fit.
  2. The Governor-General in Council may, on the recommendation of the Minister, approve a national policy statement.
  3. The Minister must, as soon as practicable after a national policy statement has been approved,—
    1. issue the statement by notice in the Gazette ; and
    2. publicly notify the statement and the report in whatever form he or she thinks appropriate and send a copy to every local authority; and
    3. provide every person who made a submission on the statement with a summary of the recommendations and of the Minister's decision on the recommendations; and
    4. present a copy of the statement to the House of Representatives.

53 Changes to or review or revocation of national policy statements

The Minister may review, change, or revoke a national policy statement after using 1 of the processes referred to in section 46A(1) in relation to the preparation of a national policy statement.

54 Publication of national policy statements

When a national policy statement is issued, reviewed, changed, or revoked, the Minister shall—

  1. Publish the statement, review, change, or revocation in whatever form he or she thinks appropriate; and
  2. Send a copy of it to every local authority; and
  3. Give public notice of its issue, review, change, or revocation.

55 Local authority recognition of national policy statements

  1. In subsections (2) and (2A), document means—
    1. a regional policy statement; or
    2. a proposed regional policy statement; or
    3. a proposed plan; or
    4. a plan; or
    5. a variation.
  2. A local authority must—
    1. amend a document to give effect to a provision in a national policy statement that affects the document; and
    2. make the amendment—
      1. as soon as practicable; or
      2. within the time specified in the national policy statement; or
      3. before the occurrence of an event specified in the national policy statement.

    2A. A national policy statement—

    1. must state whether a local authority is required to use the process set out in Schedule 1 to amend a document under subsection (2); and
    2. may direct that specific provisions are to be included in a document, without notification or hearing, under clause 16 of Schedule 1.
  3. A local authority must also take any other action that is specified in the national policy statement.
  4. A national policy statement may include transitional provisions for any matter, including its effect on existing matters or proceedings.

Sections 39 – 42A of the RMA: Powers and duties in relation to hearings

39 Hearings to be public and without unnecessary formality

  1. Where a local authority, a consent authority, or a person given authority to conduct hearings under any of sections 33, 34, 34A, 117, 146, 202, or 357C, holds a hearing in relation to—
    1. A proposed policy statement, plan, or change or variation to a policy statement or plan; or
    2. An application for a resource consent; or
    3. An application for a review of a resource consent; or
    4. An application to change any condition of a resource consent; or
    5. An application that has been called-in under section 141B(1)(a); or
    6. A requirement for a designation or heritage order; or
    7. An application for a water conservation order,—
      the authority shall hold the hearing in public (unless permitted to do otherwise by section 42 (which relates to the protection of sensitive information) or the Local Government Official Information and Meetings Act 1987), and shall establish a procedure that is appropriate and fair in the circumstances.
  2. In determining an appropriate procedure for the purposes of subsection (1), the authority shall—
    1. Avoid unnecessary formality; and
    2. Recognise tikanga Maori where appropriate, and receive evidence written or spoken in Maori and the Maori Language Act 1987 shall apply accordingly; and
    3. Not permit any person other than the chairperson or other member of the hearing body to question any party or witness; and
    4. Not permit cross-examination.

39A Accreditation

The Minister must—

  1. approve a qualification or qualifications establishing a person's accreditation; and
  2. notify each qualification in the Gazette.

39B Persons who may be given hearing authority

  1. This section applies when a local authority wants to apply any of sections 33, 34, and section 34A to give authority to 1 person or a group of persons to conduct a hearing on—
    1. an application for a resource consent notified under section 93; or
    2. a notice of requirement given under section 168 or section 189; or
    3. a request under clause 21(1) of Schedule 1 for a change to be made to a plan.
  2. If the local authority wants to give authority to 1 person, it may do so only if the person is accredited.
  3. If the local authority wants to give authority to a group of persons that has a chairperson, it may do so only if the chairperson is accredited.
  4. If the local authority wants to give authority to a group of persons, whether or not the group has a chairperson, it may do so only if over half of all the persons are accredited.

39C Effect of lack of accreditation

  1. This section applies when a local authority purports to give authority under section 39B to a person or group of persons, but does not in fact give it because the person, chairperson of the group, or members of the group are not accredited as required by the section.
  2. No decision made by the person or group of persons is invalid solely because the person, chairperson of the group, or members of the group were not accredited as required by section 39B.

40 Persons who may be heard at a hearing

  1. At any hearing described in section 39, the applicant, and every person who has made a submission and stated that they wished to be heard at the hearing, may speak (either personally or through a representative) and call evidence.
  2. Notwithstanding subsection (1), the authority may, if it considers that there is likely to be excessive repetition, limit the circumstances in which parties having the same interest in a matter may speak or call evidence in support.
  3. If—
    1. The applicant; or
    2. Any person who made a submission and stated they wished to be heard at any such hearing—
      fails to appear at the hearing, the consent authority may nevertheless proceed with the hearing, if it considers it fair and reasonable to do so.

41 Provisions relating to hearings

  1. The following provisions of the Commissions of Inquiry Act 1908 apply to every hearing conducted by a local authority, a consent authority, or a person given authority to conduct hearings under sections 33, 34, 34A, 117, 146, or 202:
    1. Section 4, which gives powers to maintain order:
    2. Section 4B, which relates to evidence:
    3. Section 4D, which gives power to summon witnesses:
    4. Section 5, which relates to the service of a summons:
    5. Section 6, which relates to the protection of witnesses:
    6. Section 7, which relates to allowances for witnesses.
  2. Every summons to a witness to appear at a hearing shall be in the prescribed form and be signed by the chairperson of the hearing.
  3. All allowances for a witness shall be paid by the party on whose behalf the witness is called.
  4. At every hearing conducted in relation to a matter described in section 39(1), the authority may request and receive, from any person who makes a report under section 42A or who is heard by the authority or who is represented at the hearing, any information or advice that is relevant and reasonably necessary to determine the application.

41A Control of hearings

An authority conducting a hearing on a matter described in section 39(1) may exercise a power under section 41B or section 41C, after considering whether the scale and significance of the hearing makes the exercise of the power appropriate.

41B Directions to provide evidence within time limits

  1. The authority may direct the applicant to provide briefs of evidence to the authority before the hearing.
  2. The applicant must provide the briefs of evidence at least 10 working days before the hearing.
  3. The authority may direct a person who has made a submission and who is intending to call expert evidence to provide briefs of the evidence to the authority before the hearing.
  4. The person must provide the briefs of evidence at least 5 working days before the hearing.
  5. If the authority has exercised a power under this section, section 101(2) does not apply. Instead, the authority must hold the hearing within 40 working days of the closing date for submissions.

41C Directions and requests before or at hearings

  1. Before or at the hearing, the authority may—
    1. direct the order of business at the hearing, including the order in which evidence and submissions are presented; or
    2. direct that evidence and submissions be—
      1. recorded; or
      2. taken as read; or
      3. limited to matters in dispute; or
    3. direct the applicant, when presenting evidence or a submission, to present it within a time limit; or
    4. direct a person who has made a submission, when presenting evidence or a submission, to present it within a time limit.
  2. Before or at the hearing, the authority may request a person who has made a submission to provide further information.
  3. At the hearing, the authority may request the applicant to provide further information.
  4. At the hearing, the authority may commission a consultant or any other person employed for the purpose to prepare a report on any matter on which the authority requires further information, if all the following apply:
    1. the activity that is the subject of the hearing may, in the authority's opinion, have a significant adverse environmental effect; and
    2. the applicant is notified before the authority commissions the report; and
    3. the applicant does not refuse to agree to the commissioning of the report.
  5. The authority must provide copies of the report to the applicant and any person who made a submission.
  6. At the hearing, the authority may direct a person presenting a submission not to present—
    1. the whole submission, if all of it is irrelevant or not in dispute; or
    2. any part of it that is irrelevant or not in dispute.
  7. Before or at the hearing, the authority may direct that the whole, or a part, of a submission be struck out if the authority considers—
    1. that the whole submission, or the part, is frivolous or vexatious; or
    2. that the whole submission, or the part, discloses no reasonable or relevant case; or
    3. that it would otherwise be an abuse of the hearing process to allow the whole submission, or the part, to be taken further.
  8. If the authority gives a direction under subsection (7), it must record its reasons for the direction.
  9. A person whose submission, or part of whose submission, is struck out has a right of objection under section 357.

42 Protection of sensitive information

  1. A local authority may, on its own motion or on the application of any party to any proceedings or class of proceedings, make an order described in subsection (2) where it is satisfied that the order is necessary—
    1. To avoid serious offence to tikanga Maori or to avoid the disclosure of the location of waahi tapu; or
    2. To avoid the disclosure of a trade secret or unreasonable prejudice to the commercial position of the person who supplied, or is the subject of, the information,—
      and, in the circumstances of the particular case, the importance of avoiding such offence, disclosure, or prejudice outweighs the public interest in making that information available.
  2. A local authority may make an order for the purpose of subsection (1)
    1. That the whole or part of any hearing or class of hearing at which the information is likely to be referred to, shall be held with the public excluded (which order shall, for the purposes of subsections (3) to (5) of section 48 of the Local Government Official Information and Meetings Act 1987, be deemed to be a resolution passed under that section):
    2. Prohibiting or restricting the publication or communication of any information supplied to it, or obtained by it, in the course of any proceedings, whether or not the information may be material to any proposal, application, or requirement.
  3. An order made under subsection (2)(b) in relation to—
    1. Any matter described in subsection (1)(a) may be expressed to have effect from the commencement of any proceedings to which it relates and for an indefinite period or until such date as the local authority considers appropriate in the circumstances:
    2. Any matter described in subsection (1)(b) may be expressed to have effect from the commencement of any proceedings to which it relates but shall cease to have any effect at the conclusion of those proceedings—
      and upon the date that such order ceases to have effect, the provisions of the Local Government Official Information and Meetings Act 1987 shall apply accordingly in respect of any information that was the subject of any such order.
  4. Any party to any proceedings or class of proceedings before a local authority may apply to the Environment Court for an order under section 279(3)(a) cancelling or varying any order made by the local authority under this section.
  5. Where, on the application of any party to any proceedings or class of proceedings, a local authority has declined to make an order described in subsection (2), that party may apply to the Environment Court for an order under section 279(3)(b).
  6. In this section—
    1. Information includes any document or evidence:
    2. Local authority includes any community board, board of inquiry, public body, special tribunal, or any person given authority to conduct hearings under section 33 or section 34 or section 34A or section 117 or section 146 or section 202.

42A Reports to local authority

  1. At any reasonable time before a hearing or, if no hearing is to be held, before the decision is made, a local authority may require an officer of a local authority as defined in section 42(6), or may commission a consultant or any other person employed for the purpose, to prepare a report on information provided on any matter described in section 39(1) by the applicant or any person who made a submission.
  2. Any report prepared under subsection (1) may be considered at any hearing conducted by the local authority.
  3. A copy of any written report prepared under subsection (1) shall be sent, so that it is received at least 5 working days before the hearing, to the applicant and any person who made a submission and stated they wished to be heard at the hearing.
  4. The local authority may waive compliance with subsection (3) if it is satisfied that there is no material prejudice, or is not aware of any material prejudice, to any person who should have been sent a copy of the report under subsection (3).
Reviewed:
07/06/11