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An Everyday Guide to the Resource Management Act Series 5.2:
Appearing at a Council Plan or Plan Change Hearing

Council plan preparation and plan change process

Introduction

The Resource Management Act 1991 (RMA) sets out how councils should make decisions about activities that might affect the environment. Sometimes, a council may hold a public hearing to help it make a decision. There are two sorts of hearings 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 relate either to applications for resource consent or to notices of requirement.

In all cases, hearings give people the chance to have their say about what a council or an applicant for resource consent is proposing. This guide is for submitters on a council plan or plan change – people who are going to appear at a council hearing.  It explains:

• how to get involved in a council hearing
• what you’ll do at a hearing, and who you’ll see
• 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 plan changes or variations are heard by a board of inquiry or the Environment Court because they are considered by the Minister for the Environment to be nationally significant proposals.  The general principles for a hearing outlined in this booklet are also relevant for hearings conducted by those bodies.  However, there are some procedural differences, such as cross-examination, that you should understand before attending their hearings. You can find more information in 'An Everyday Guide to the RMA' booklet 1.4 National Level Guidance and Procedures and booklet 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. If you are involved in a resource consent you need to read ‘An Everyday Guide to the RMA’ booklet 3.3 Appearing at a Council Resource Consent Hearing.

A plan change is when a council changes an existing plan that is already being used (an ‘operative’ plan).  A plan variation is when a council changes a plan that is still in the ‘proposed stage’ and has yet to be finalised. There will be fewer plan variations as more and more councils have operative plans, but there will be more plan changes as councils begin to review their plans.

Councils decide when to make plan changes or variations; individuals can also request that the council makes a plan change (but individuals can’t request a plan variation). All plan changes and variations are required to be publicly notified. This enables people to make written submissions on the proposals.

Written submissions

A written submission is a statement that explains why you support or oppose a proposed plan, plan change or variation. Alternatively, it may be neutral and aimed at  providing information you think the council should be aware of in making its decisions. It also states whether you want to speak at a hearing if the council holds one.

After receiving all the written submissions, council officers prepare a summary of submissions and send notice of it to everyone who made a submission. You can make a further submission either supporting or opposing someone else’s submission, if you have an interest in the submission which is more than that of the general public or you are representing a relevant aspect of the public interest.

Councils usually prepare a report (called an officer’s report) about the submissions received on the proposed plan, plan change or variation. This report may include recommendations which the hearing committee can use in making its decision. The hearing committee is not required to follow the recommendations, but can use them as a guide.

For more information about making a submission, see ‘An Everyday Guide to the RMA’ booklet 5.1 Making a Submission about a Proposed Plan or Plan Change.

What you’ll do at the hearing

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

You’ll most likely 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 will sometimes be 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 elected members (councillors), independent commissioners, or a mix of the two.

A council officer will generally be there to present the council’s report on the proposed plan, plan change or plan variation. Other council officers, such as urban designers or traffic engineers, might also be there to give technical advice.

At a hearing about an application for a private plan change, the applicant will be there, and might have an advocate or a lawyer as well. The applicant might have brought other experts to back up his or her proposal.

The other submitters to the plan change will probably be there as well. They might also have brought an advocate, a lawyer or an expert witness (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 people have made a submission and have asked to be heard, they will not be invited 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 proposed plan, plan change or variation.  Make sure you read it 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 also be invited to a pre-hearing meeting. Other submitters, the applicant (for a private plan change), and the council officer who reported on the proposed plan, variation or plan change, may also attend. 

You don’t have to attend a pre-hearing meeting, but it can be a useful way to try and sort out issues before a hearing, in a relatively informal setting.

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 have regard to the report in making their decisions. 

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 here 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

Although the chairs of hearing committees and most members have been through formal training, they aren’t necessarily experts. They’ll want to hear good, solid evidence to help them make a decision.

In a hearing about a private plan change, the applicant might use expert witnesses to support his or her 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.
• However, bear in mind 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.

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. If your written submission covered lots of different issues you might have to go to the hearing on different days.

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. Council hearings, though, generally follow the same order. Some hearings may take months to hear all of the submitters. Here’s where your submission fits in.

1. The chairperson usually welcomes and introduces everyone.
2. A council officer may present their report about the proposed plan, or the plan change or variation.
3. The applicant for a private plan change (if there is one) 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.
4. The submitters (and further submitters when there are any) 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 may take more than a day, and you may have to go to the hearing on more than one occasion.
5. An applicant for a private plan change 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 for a private plan change or the submitters.
7. The hearing closes and the hearing committee makes its decision. This is usually done in private. The committee has to make a decision about plans, plan changes and plan variations without unreasonable delay.
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.

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’ booklets 6.1 Your Guide to the Environment Court and 6.3 The Environment Court: Awarding and Securing Costs.

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 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 request this in your written submission on the plan change, variation or proposed plan when it is notified, and/or in any further submission. Also ask in your written submission if you have other specific requests for dealing with Māori protocol or other cultural issues – councils must recognise tikanga Māori where appropriate.

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. You should direct any questions about procedure to the chairperson of the committee. Only members of the hearing committee can ask questions about submissions or evidence.

You are not allowed to ask the council officer, the submitters, 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. 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.

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