The Decision-maker
March 2008
Welcome to the fourth edition of The Decision-maker, the Ministry for the Environment's newsletter for certified RMA decision-makers. Published three times a year, the newsletter provides guidance on issues you face as a decision-maker. It tells you about future training opportunities and shares the perspectives of others actively involved in making decisions. The Decision-maker refers you to relevant case law and invites your feedback on thought-provoking issues.
Enrolments open for re-certification
Does your certificate expire on 30 June 2008? Do you want to maintain your certification? Enrolments are now open for re-certification. The University of Auckland's Centre for Continuing Education has made every endeavour to personally contact all decision-makers whose certificates are coming up for expiry. However, contact details change over time, and we may have missed you.
As indicated in the previous Decision-maker (November 2007), two options are available:
Option A:
Re-certification for those who plan to continue as members of hearings panels. This course is pitched at a level of difficulty similar to the original training, with equivalent opportunities for reassessment. You'll want to enrol in this course if you are a hearings panel member but have no intention or interest in chairing a panel.
Option B:
Re-certification for those who want to continue as chairs, or who would like to develop skills as chairs. This course is more advanced and significantly more demanding, and there are no opportunities for reassessment. You'll want to enrol if you are an experienced chair or if there is a strong likelihood that you will be asked to chair.
Please note that the current re-certification round is only open to those whose certificates expire on 30 June 2008. More opportunities for re-certification will be offered to other decision-makers in advance of the expiry of their certificates.
If you successfully complete either course, you will be issued with a new certificate that is valid for a further five years. If you obtain re-certification under Option B your certificate will include a 'chairing endorsement'. You aren't legally required to have a 'chairing endorsement' to chair hearings under the RMA, but the course will help you develop or maintain the skills you need to perform this role effectively.
For more information about venues and dates, to update your contact details, and to register for re-certification, call Libby Passau at the Centre for Continuing Education (University of Auckland) on (09) 373-7599 x 88532, email l.passau@auckland.ac.nz or visit the Centre's website at www.cce.auckland.ac.nz/rma
And your facilitator will be …
The most valued resources that the Making Good Decisions programme can call on are its teams of facilitators and presenters. Some of the facilitators of the up-coming re-certification workshops will be familiar to you from the original training, including Jan Crawford, Ken Gimblett and Gay Pavelka. We are pleased to announce that we will also be tapping the experience and skills of Alison Wall, Adrienne Williams, Dorothy Wakeling and Harry Bhana.
- Alison has been a councillor at Palmerston North City Council continuously for five terms and served for 15 years on the planning and hearing committees, lately as chair of the former and deputy chair of the latter.
- Adrienne has served for 12 years on the Hawke's Bay Regional Council's hearings panel (including six years as chair).
Following their retirement at the last local body elections they have both continued to act as independent commissioners. They bring to the facilitation role a valuable perspective as elected decision-makers.
- Dorothy is a Hamilton-based planning consultant and mediator with 12 years' experience as an independent commissioner. She helped to develop the course materials for the Making Good Decisions programme and has taught environmental planning and law extensively at tertiary level.
- Harry is a very experienced planning consultant and independent commissioner, based in Auckland. He has for many years trained planners for their role as expert witnesses before the Environment Court.
Dorothy and Harry will provide significant insights as decision-makers as well as from their perspective as expert witnesses at hearings.
Procedures for hearings - Dealing with evidence at hearings
As indicated above, Harry Bhana will be facilitating the upcoming re-certification workshops for chairs. In the following article, Harry provides his perspective on procedures for hearings, notably dealing with evidence, and with reference to the powers enjoyed by both the Environment Court and local decision-makers. Please note that Harry's opinions are his own and do not represent Ministry for the Environment policy.
When hearing more complex cases, two matters which often raise concerns for decision-makers conducting hearings are:
- the time taken up by lengthy expert evidence and legal submissions
- the difficulty of weighing up conflicting evidence from expert witnesses representing opposing parties.
Over the past few years the Environment Court has adopted new measures for dealing with both of these issues. In the Environment Court situation all evidence must be forwarded to the Court and to the other parties some time before the hearing commences. It is now common practice for the Court to read evidence in advance of the hearing and at the hearing, to have witnesses simply attest to their evidence and then answer questions from the other parties and from the Court. This has the merit of considerably shortening the time taken to deal with the hearing of evidence.
Where necessary the Court will also adopt a range of measures to clarify the extent and nature of differences of opinion expressed by expert witnesses. The Court can direct that expert witnesses (in the same field of expertise) confer on matters in their respective fields and to narrow issues between them. This usually means that a joint statement of evidence would be prepared following the conference, identifying the matters that the experts agreed on and those on which they disagreed. Evidence from the individual witnesses would then deal only with the matters on which there was disagreement. Further to that, the Court may require that expert witnesses presenting evidence on behalf of different (including opposing) parties appear to give their evidence sequentially, rather than the usual practice of having that evidence heard separately as part of the individual case of each party. Hearing the evidence in sequence provides the obvious advantage that evidence of each witness is more easily compared to that of the expert immediately preceding or following; and it is easier to question the witnesses to clarify the reasons for differences of opinion. More recently the Court has indicated that in some cases it may take this process a step further by requiring all parties' expert witnesses (in a particular discipline) to appear in the witness stand together so that they may be questioned together.
Local decision-makers faced with similar issues can adopt some of these measures. Lengthy statements of evidence would be best dealt with if their likelihood could be anticipated by the council officers responsible for setting up the hearing. This would enable section 41B to be invoked, requiring the applicant and any submitter to provide briefs of expert evidence to the authority in advance of the hearing (10 days in advance for the applicant and 5 days for a submitter). That would then enable the decision-makers to pre-read the evidence and they could then follow a similar approach to the Court of taking the evidence as read and proceeding straight to questions from the hearings panel. Even where the full process of section 41B cannot be followed (for example, because the situation was not foreseen in time to enable appropriate directions), section 41C(1)(b) authorises the decision-makers to receive the briefs of evidence at the hearing, to adjourn to read them, then return to the hearing and proceed directly to questions of the witnesses.
Section 41C would also authorise the panel to require expert witnesses for different parties to present their evidence sequentially.
If adopting these approaches, it is still necessary to ensure that the principles of natural justice are maintained. In general that simply requires that the parties are given some notice of the panel's intention to proceed in a manner that does not follow the normal and expected course. I am not aware of any difficulty arising in respect of taking evidence as read in the manner discussed above. However in respect of hearing expert witnesses for different parties sequentially, and if those parties are represented by legal counsel – then they may wish to present some submissions before their witness's evidence is heard: this enables the evidence to be placed in the context of the case they are presenting.
I do not believe that section 41B or 41C empowers decision-makers to direct experts to confer and produce an agreed statement. But where a difference between experts was particularly significant, then under section 41C (2) and (3) it would be possible to request each of the parties to produce an additional statement of evidence from their expert witness – explaining what the differences were between the experts, and why that particular expert held a different opinion. Obviously care is required to ensure that such a request does not introduce an unnecessary delay in the process; otherwise where the evidence is of real significance to the outcome then it would be justified.
A collaborative workspace
The Making Good Decisions Programme is founded on an ethic of continuing professional development (CPD). To date, CPD has been facilitated through mid-term update seminars for some certificate holders on the new RMA hearing powers, through the Decision-maker, and through the limited life of their certificates (and the associated requirement for re-certification).
New technology, however, now provides an opportunity to create an on-line home for the Programme's CPD component. Such a collaborative workspace would provide:
- an active and engaging forum for guidance / advice, contact on upcoming training opportunities, tutoring, and downloading of course materials, articles, and video interviews with peers
- a platform for completing CPD assignments on-line.
A successful platform would exploit opportunities for on-line learning, provide for the efficient exchange of ideas, and provide an innovative technological fix to the environmental downside of travel and regular face-to-face contact. In other words, it would supplant or at least reduce the need for published material and attendance at expensive, energy-intensive seminars.
The Ministry intends to commission the Centre for Continuing Education to develop and deliver a collaborative workspace. A relatively simple and well-tested version of the platform will be employed during 2008. The platform will be further developed and subsequently used to support all future training; foundation, re-certification, or otherwise.
Having regards to the effects of climate change
How we respond to the issue of climate change now will determine the shape of the future of our economy, our environment, and our communities. As decision-makers, you will be wondering how and when to address the impacts of climate change. The Ministry for the Environment has produced a factsheet which provides some basic guidance and suggests other resources that you can call on to help you in your decisions. A copy of the factsheet is enclosed with your Decision-maker, and additional copies can be obtained on-line at www.mfe.govt.nz/publications/climate/making-good-decisions-climate-change-effects-dec07/index.html
'Odd' panels are best
You may recall the difficult position in which Wellington area consent authorities found themselves in 2006, following the initial hearings into the applications for the proposed marine education centre on the south coast. The four independent commissioners found that they could not agree whether to grant or decline the applications. This meant that the entire case had to be re-heard at the considerable frustration and expense of the parties involved.
Such situations may be rare, but are certainly best avoided. In cases of deadlock, it may be feasible for the hearings panel to enter into some form of mediation to try and establish common ground and isolate issues in contention for further deliberation.
The default position is that the chairperson does not have a casting vote (as no provision is made for one in either the RMA or the Local Government Act 2002). There does not appear to be anything in these statutes which prevents the local authority from providing, or the commissioners deciding to allow, a casting vote to the chair to make decisions or recommendations under the RMA, although this point has not yet been challenged or explored in the courts.
In the end, the simplest and best contingency would be to ensure that all panels (or the quorum for those panels) comprise three or five members or some other 'odd' number, thereby eliminating the prospect of deadlock and the inability to reach a decision.
Independent Commissioners take an increasing role in the resource consent business
Almost all councils in New Zealand have taken advantage of the skill development offered through the Making Good Decisions programme. Ultimately, however, it is up to individual councils to decide who to appoint to hearing panels and also whether elected members should be involved in the role at all.
In November 2007, Auckland City Council's Deputy Mayor put a report up to council seeking to reduce the role of councillors and community board members on resource consent hearings panels and a commensurate increase in the role of independent commissioners. This principle was accepted by the full council, which will allow elected members to focus on an upcoming district plan review. At the same time, Whangarei District Council is moving to the exclusive use of independent commissioners on panels.
To assist local authorities in appointing independent commissioners where this approach is favoured, the Quality Planning website provides guidance. For more information, go to www.qualityplanning.org.nz/plan-development/commissioners.php
