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An Everyday Guide to the Resource Management Act Series 3.3:
Appearing at a Council Resource Consent Hearing

Getting involved in the resource consent process

This diagram represents the council process. Some applications may be referred to the Environment Court or a board of inquiry for a decision, instead of the local council. See ‘An Everyday Guide to the RMA’ booklet 1.4 National Level Guidance and Processes for more information.

Introduction

The Resource Management Act 1991 (RMA) sets out how councils make decisions about activities that might affect the environment. Sometimes, a council will hold a public hearing to help it make a decision. There are two sorts of hearing where RMA matters are considered. First, there are hearings relating to a council’s district or regional plans. Second, there may be hearings on individual development proposals. These either relate to applications for resource consent or notices of requirement. Hearings give people the chance to have their say about what a council or an applicant for resource consent is proposing.

This guide is primarily for submitters on resource consent applications – people who are going to appear at a council hearing. The principles outlined here also apply to hearings for a notice of requirement for a designation (a provision in a district plan informing the community of an intended use of land in the future for a particular project, eg, road).  For more information about the designation process see ‘An Everyday Guide to the RMA’ booklet 4.1 The Designation Process. For more information about appearing at a council plan or plan change hearing see ‘An Everyday Guide to the RMA’ booklet 5.2 Appearing at a Council Plan or Plan Change Hearing.

This guide explains:

• how to get involved in a council hearing
• what happens at a hearing and who will be there
• how to prepare and do well on the day
• the rights and rules that affect you
• your responsibilities.

A council hearing can look a bit like a court, with lawyers, witnesses and a hearing committee listening and asking questions. But it’s not supposed to be too formal, or off-putting. Council hearings are designed for you to have your say and to let other people have theirs. They’re a key way for the community to be involved in council decisions about the environment.

Some resource consents and designations are heard and decided by a board of inquiry or the Environment Court. The general principles for a hearing outlined in this booklet are also relevant for hearings conducted by these bodies. However there are some procedural differences, such as cross-examination, that you should understand before attending these hearings. If you are involved in one of these hearings you can find more information in 'An Everyday Guide to the RMA' booklets 1.4 National Level Guidance and Procedures and 6.1 Your Guide to the Environment Court.

Setting the scene: plans and consents

City, district and regional councils create district plans and regional plans to set out how they will manage the environment. These plans contain rules that control what people can do in the environment.

Some activities can be done as of right, but others need permission from the local council. This permission is called a resource consent.

Every day, people ask their local council for resource consents to do things such as building a house or garage, subdividing their property, building a multi-storey apartment block, or taking water from a stream. The person applying for resource consent is called the applicant.

Councils use the process set out in the RMA to decide whether to publicly notify a resource consent application. If an application is publicly notified, anybody can make written submissions that either support or oppose the application (all of it or just a part). People can also forward a neutral submission that simply provides additional information to help the council in its decision-making. In some cases, the council may ‘limited notify’ an application, meaning it notifies only those people it believes are adversely affected. If so, only those people can make a submission. People who make submissions can also speak at a hearing held by the council, if they indicate they wish to do so on the submission form.

Sometimes, a council wants to change or vary a district or regional plan to allow for development, or to protect the environment.  They might even want to create a whole new plan or policy statement.  Private individuals can also ask for a plan to be changed.  Under the RMA, councils have to notify plan changes or variations, or proposed new plans.  This lets people make written submissions in the same way as for a resource consent or notice of requirement.

Written submissions

A written submission is a statement that explains why you support or oppose a resource consent application, notice of requirement for a designation, or proposed plan or plan change. Submissions can be neutral but should identify additional information you think the council should consider in making its decision. A submission also states whether you want to speak at a hearing if the council holds one.

For more information about making a submission see ‘An Everyday Guide to the RMA’ booklets 3.2 Making a Submission about a Resource Consent Application or 5.1 Making a Submission about a Proposed Plan or Plan Change. For more information about designations, see ‘An Everyday Guide to the RMA’ booklet 4.1 The Designation Process.

Council officers usually prepare a report on the application and send it to all submitters before a hearing is held. This report may include recommendations, which the hearing committee can refer to in making its decision. This report constitutes evidence, like any other information presented at the hearing; the hearing committee is not bound to follow the officer’s recommendations, but can use them as a guide.

What happens at a hearing

The hearing gives you the chance to explain your submission to the hearing committee, and present evidence that supports your submission.

You’ll have the chance to read out a written statement, and to present evidence that supports your submission. The hearing committee might ask you questions about your submission, your statement, or your evidence. After everyone has had a chance to speak, the hearing committee makes its decision. This is usually done in private, but occasionally in public.

Making a statement

The statement you read out at the hearing will expand on the points you’ve made in your written submission. Someone else can read out your statement for you if you want.

Your statement might include examples that illustrate some of the points in your submission, or comments about the recommendations in the council officer’s report. You can also just read straight from your submission.

Plan your statement carefully, and practise reading it. The hearing is your chance to give voice to your submission.

Who else will be at the hearing?

The hearing committee may be made up of any number of people, and may include councillors and/or independent commissioners.  Independent commissioners will be used if the applicant or submitters have requested them, if there is a conflict for councillors in hearing the application, or if specialist expertises are required.

A council officer will generally be there to present their report about the consent application or notice of requirement. Other council officers, such as urban designers or traffic engineers, might also be there to give technical advice.

The applicant’s representatives will be present at the hearing, and they may have an advocate or a lawyer to back up their proposal. They may also have expert witnesses, who present evidence on particular subjects, such as planning, noise, traffic or ecological effects.

The other submitters will be there as well. They might also have brought an advocate, a lawyer or expert witnesses (such as a professional with expertise on a matter which the submitter submitted on).

A council hearing is usually open to all, so there may be members of the public and media representatives at the hearing. Unless they have made a submission and asked to be heard, they will not be allowed to speak at the hearing.

Getting ready for the hearing

The council will tell you the date and time of the hearing at least 10 working days beforehand.  You can start getting ready well before then, preparing and practising your statement, and gathering your evidence. Nothing beats preparation for getting your point across on the day.

• It is a good idea to prepare a written statement to read out at the hearing. Identify the key points you want to get across, and back them up in your statement.
• Practise reading out your statement. You want to get it right and to look confident and comfortable. Practising will make sure you do.
• Think about what questions the hearing committee might ask you, and how you can answer them.
• Go to a council hearing beforehand to see how it works and get a feel for the process.  You don’t want surprises on the day.

At least five working days before the hearing, you’ll get a copy of the council officer’s report about the resource consent or notice of requirement. It is important that you read the report before the hearing. Think about what’s in it – is there anything you want to deal with in your statement?

Pre-hearing meetings

You might be invited or be required to attend a pre-hearing meeting. The applicant, other submitters and/or other people (such as the council officer who prepared the report) may also attend the pre-hearing meeting. A pre-hearing meeting can be a useful way to clarify matters or to try and sort out issues before a hearing, in a relatively informal setting.

If required to attend a pre-hearing meeting, you must attend. If you don’t attend and don’t have a reasonable excuse, the council can decline to process the application (if you are an applicant) or decline to consider your submission (if you are a submitter).  You will not be able to appeal or be involved in the decision at a later date.

Everyone at the hearing will get a copy of a report about what went on at the pre-hearing meeting, including the issues that were agreed on and those that are outstanding. The hearing committee must consider this report in making their decision.

How to do well on the day

You want to make a good, strong presentation. You want the hearing committee to focus on your statement and on your evidence. Keep your statement simple, make your key points clear, speak clearly, and be yourself.

You can expect the hearing committee to treat you with dignity and respect, and to put you at ease. You should treat them with respect also.

Make it clear and easy to hear

Read your statement clearly and slowly enough to be understood. Speak clearly and try not to repeat yourself.

Stick to the point

Everyone is there for the same reason, and needs their views to be heard. The hearing committee is only interested in the relevant facts and opinions.

• Stick to the facts in your statement.
• Focus on the environmental matters, not simply what you like and dislike.
• Expand on your submission, but don’t introduce any new issues.
• Don’t repeat yourself or be long winded.
• Don’t play on emotions or breach protocol.

Remember the hearing is neutral

Councillors on a hearing committee aren’t there as politicians. They’re there as decision-makers who have to weigh up both sides of an argument.

• Leave your personal opinions about the council or the applicant outside the door.
• Don’t use the hearing as a chance to discuss or argue about other issues. Focus on the issue at hand.

Use an advocate or a lawyer if that will help

• Use an advocate (a spokesperson) if you’re nervous about making a submission, or if a group is making a submission and wants one person to speak for you all. The advocate could be a member of your group.
• Use a lawyer as your advocate if your submission explores legal matters, or if you think a professional interpretation of legislation or case law is needed.

Use expert witnesses if that will help

Members of the hearing committee won’t necessarily be experts on the effects of the application that may be of concern to you. They’ll want to hear good, solid evidence to help them make a decision.

The applicant might use expert witnesses to support their case. So it might make sense for you to use expert witnesses as well, depending on what your concerns are. Remember:

• Stick with what you know. Only expert witnesses can offer opinions on matters that relate to their field of expertise. If you are not an expert witness, don’t pretend to be one. Instead, focus on what you consider to be facts, and your own recollections and observations.
• Use expert witnesses (such as planning consultants, surveyors, engineers or scientists) to present evidence about technical topics (such as heritage, soil stability or microbiology) when you need to.
• Before you start, make sure any professional witness you use is able to present evidence that supports your point of view.
• Bear in mind, however, that expert witnesses are not ‘hired guns’. They must be able to support their own conclusions.
• Check the costs before you employ an expert witness and explore whether the cost of experts can be shared with other submitters. You can get a list of who the other submitters are from the council.

Providing evidence before the hearing

Depending on the scale and significance of the hearing, the council may direct the applicant and/or any expert witnesses who have been employed by submitters to provide briefs of evidence before the hearing. Providing evidence before the hearing is useful where the application is complex, or where there are conflicting opinions between experts. The length and associated cost of any hearing could be reduced by narrowing the scope of evidence and identifying the matters remaining in contention. Providing evidence before the hearing may help the hearing committee to be better prepared and to assume a more inquisitorial role.

Speaking with other submitters

If the hearing involves many submitters, you may make your submission along with other submitters speaking about the same topic as you.

The order of events at a hearing

The hearing committee can direct the order of business at a hearing, including the order in which evidence and submissions are presented. But typically, most hearings follow the same pattern. Here’s where your submission fits in:

1. The chairperson usually welcomes and introduces everyone.
2. The applicant or requiring authority usually presents a statement and answers questions from the hearing committee. Others (eg, expert witnesses) may also present evidence in support of the applicant’s statement. The hearing committee may ask questions of anyone presenting evidence.
3. The submitters present their cases and answer questions from the hearing committee. Submitters might also call on others to present evidence supporting their statement. The hearing committee may ask questions of anyone presenting evidence in support of a submitter. This might take more than a day, and you may have to go to the hearing on more than one occasion.
4. A council officer may present their report about the application for resource consent or notice of requirement.
5. An applicant or requiring authority has the right of reply to points raised by, or on behalf of, submitters.
6. The hearing committee might ask more questions of the council officer, the applicant or requiring authority, or the submitters.
7. A hearing must be concluded no later than 10 working days after the applicant’s right of reply. Once closed, the hearing committee makes its decision. This is usually done in private. The committee has to make a decision on a resource consent within 15 working days of closing a hearing.
8. The council writes to you to tell you what the decision is. If you consider that the council is wrong you may be able to appeal all or part of the decision to the Environment Court.

Get professional advice if you’re thinking about appealing the decision. A lawyer, planning consultant or someone with similar professional expertise should be able to tell you if you are likely to be successful. Appeals are often complex and expensive, and need to be well thought out. Getting professional advice early on can save you significant time and costs later.

With the right to appeal to the Environment Court comes a responsibility to act in a proper manner and not be ‘frivolous or vexatious’. Otherwise, there can be pointless costs and delays for all the parties involved. For more information see ‘An Everyday Guide to the RMA’ booklet 6.1 Your Guide to the Environment Court.

Rights and rules: things you need to know

You have certain rights when you appear at a council hearing, and you have to follow some rules as well.

Can I choose who is on the hearings panel?

Normally, the council has an established hearings panel made up of elected councillors. The council also generally has a list of approved independent commissioners; sometimes, they may hold the hearing and make the final decision instead of elected councillors.

If you have any concerns about who will be hearing the application, then you should discuss this with council staff. In some cases, the council may decide to change the panel members or a commissioner, but only if they consider that there are good grounds for doing so and no one is disadvantaged by the decision.

An applicant or submitter(s) can formally require the council to appoint an independent commissioner – or an entire panel of independent commissioners – to hear and decide resource consent applications. A submitter(s) who requests independent commissioners will have to meet the costs involved, unless the applicant also makes the same request (in which case, the cost lies with the applicant).

Can I have support people?

Yes. Your friends, family and support people can come to a public hearing to support you. You can call them as witnesses and they can speak on your behalf. But remember, it’s the quality of the argument that counts – not strength in numbers.

Will the hearing recognise tikanga Māori?

Councils must allow for submissions and evidence in te reo, but you must ask for this in your written submission on the application. Also ask in your written submission if you have other specific requests for dealing with Māori protocol or other cultural issues. The council then has reasonable time to appoint an interpreter, or make other necessary arrangements.

Councils will generally try to accommodate most reasonable requests.

Can I ask questions?

If you don’t understand what’s going on at the hearing, you can ask questions – but only about procedure. Ask the chair before doing so.

Only members of the hearing committee can ask questions about submissions or evidence.

You are not allowed to ask the council officer, the applicant, the witnesses, or an advocate or lawyer any questions. You can suggest questions for the committee to ask, but the committee doesn’t have to ask them. Raise any questions you want to ask with the chairperson when you are giving your evidence.

What if I disagree with what someone else says?

At the hearing, you can only speak directly to the hearing committee (through the chairperson). You must never interrupt someone else who is speaking at the hearing even if you disagree with what he or she is saying.

Will I be cross-examined?

Cross-examination means being asked questions by lawyers representing other parties. No one can be cross-examined at a council hearing. Submitters and other witnesses might be asked to take an oath, but this doesn’t usually happen.

What will it cost me?

You have to pay for your own costs, such as travel to and from the hearing, time off work, and lawyers’ and professionals’ fees. You don’t have to pay for anything else, unless you have asked for the application to be decided by an independent commissioner rather than the councillors, and the applicant has not made the same request. In this case,  you have to pay the additional costs of the commissioner(s), over and above what it would cost if councillors heard and decided the matter. Council can provide estimates of these charges, which will be shared equally between any other submitters that may have made the same request. These charges will be payable regardless of the decision on the application.

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