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Survey of Practitioners: Making Good Decisions Programme

Preface - Ministry for the Environment

Executive Summary

1.0 Introduction

2 Methodology

3.0 Results and Analysis

4.0 Discussion

5.0 Conclusion

Appendix 1: Survey Questions

3.0 Results and Analysis

Participant Profile

Overall, 40 resource management practitioners participated in the survey. The following table provides a proportionate breakdown of how participants described their professional category, and their practice environments.

Table 1: Breakdown of Participants

Of the 18 (45%) of participants working within a local authority:

• seven (39%) worked within a city council
• five (28%) worked within a district council
• three (17%) worked within a regional council
• three (17%) worked within a unitary authority.

3.2 Subject Hearings Panel Profile

Many of the consultants interviewed regularly attended hearings before more than one hearings panel. In some cases, respondents provided observations of up to four panels.

Overall, a total of 68 panels were commented on. The following table provides a proportionate breakdown of the nature and composition of these panels.

Table 2: Breakdown of Subject Panels

However, it is noted that some respondents provided collective comments across all of the nominated subject panels they appeared before. This reduced the total number of survey responses based on subject panels to 59. The key quantitative statistics provided in this document therefore relate to a proportion of subject panels (N=59) that exhibited changes in the performance areas denoted, as opposed to the proportion of respondents who observed such changes.

In some cases respondents were providing observations based on their own assumptions as to whether hearings commissioners and members of hearings cCommittees have been certified under the MGDP. A check has been undertaken to ensure that specific individuals referred to throughout this report have achieved certification.

3.3 Summary of Responses

The section provides a quantitative and qualitative summary of participant responses across each survey question in turn.

3.3.1 Management of Hearings

Q1 Have you noticed any changes to the way in which hearings are managed and conducted by the chairperson/or sole commissioner?

Question 1 examines whether respondents had detected a change in the way hearings were managed and conducted by the chairperson or sole commissioners during the study period.

More than half (54%) of the chairpersons or sole commissioners were reported as showing positive change in managing and conducting hearings.

Table 3 shows a summary of the types of positive changes observed during the study period and the general proportions of chairpersons/sole commissioners reported as showing such changes. Average ratings are provided for each change, including the 'degree' of the change, and the 'significance' of that change.

Table 3

A number of observations can be drawn from the information presented in Table 3, discussed as follows.

Types of positive changes

Of the 54% of chairpersons / sole commissioners who showed positive changes, the three most commonly reported improved performance areas were:

• confidence in running the hearing - 69%
• knowledge of the procedure - 69%
• ensuring submitter involvement - 50%.

The remaining key performance areas where changes were reported included:

• managing and explaining staff involvement during hearings - 28%
• questioning skills - 25%
• dispute resolution - 15%.

Several participants variously noted other changes in performance such as:

• the overall 'professionalism' of the chair
• general improvement in the knowledge of the RMA
• a sense of a general 'welcoming' and 'open' approach
• greater realisation of the need to ask questions on behalf of the community
• ensuring experts who provide evidence attend hearings.

Extent and significance of positive change

Of all the positive changes reported, respondents assigned the highest average ratings, both in terms of the 'degree' and 'significance', to changes relating to confidence in running the hearing, and knowledge of the hearings procedure (average ratings between 4-5 = 'moderate').

The next highest average ratings were assigned to changes relating to the management/ explanation of staff involvement during hearings (degree and significance ratings between 4-5 = 'moderate').

Respondents generally viewed changes observed in relation to ensuring submitter involvement, skills in questioning, and dispute resolution to be the least 'significant' and to be the change of lesser 'degree' (average ratings between 2-4 = 'minor-moderate').

Observations and illustrations of positive change

Many respondents provided qualitative comments to support their observations of change in the performance areas discussed above. A selection of observations follows to illustrate some of the key themes and views that emerged across respondents in relation to the management of hearings.

Many respondents reported immediate and direct changes in the performance of the Chair or Commissioner following the MGDP training. Some examples include with respect to individuals include:

• One Chair was reported to have exhibited an improvement to his overall knowledge of the hearings procedure and with regard to his ability to manage and explain staff involvement to all parties present at the hearing. It was specifically commented that:

'The Chair now clearly explains the process at the hearing.'

'The hearing process is now more prescribed.'

'The Chair appears to be taking the process of the hearing more seriously.'

• Another Chair was reported to have displayed more confidence with the hearings procedure and management, and was better at managing the hearing, in particular providing directions to everyone present.
• With regard to another Chair, it was reported that there 'has clearly been a positive change'. It was commented that:

'He has a better knowledge of the hearings procedure.'

'Procedural issues are now explained in a clearer way.'

• In relation to the performance of another Chair, the following comments were provided:

[While the Chair was very competent prior to training] 'he is now more aware of the potentially 'intimidatory' nature of proceedings and takes care to look after submitters so that they do not feel overwhelmed, and to make sure applicants and any representatives are not intimidating submitters'.

A further change also reported, in relation to the performance of that Chair is an overall increase in the depth of knowledge surrounding resource management issues (e.g. notification, cumulative effects) and processes that apply to hearings (e.g. fairness, natural justice, etc).

• Another Chair is generally reported to be 'more confident and more prepared which makes for better management of the hearing'.

It was further noted that in the past this Chair used to control the other panel members, but now the other members seem to be more familiar with the process and can self manage more. They are far more aware of the procedure and "doing it right"; displaying much more awareness of their own performance.

• Another Chair is reported to have improved in his ability to manage submitter involvement during hearings. Another area of change reported relates to the procedure of the hearing, for example the Chair now ensures that any expert who has provided written evidence must attend the hearing.
• Several respondents consistently reported positive improvements to the way in which another Chair manages and conducts hearings. Some comments include:

'There has been a definite change to his overall knowledge of the procedure and confidence in managing the hearing.'

'[This Chair] is the fairest Chair I have ever appeared before. The changes are subtle. He is more structured and explicit, more organised. Experts would notice the changes.'

'[This Chair] has placed more emphasis on the process and equal rights of submission during the hearing. He also clearly states at the hearing "don't infer from our questions that we have already made up our minds" - he is aware of the perception surrounding transparency.'

• Positive changes in the performance of another Chair were reported. Specifically the following comments were provided:

'Generally, the knowledge of procedure has improved and the Chair now explains the process better to all parties present. The Chair explains what is involved over the course of the hearing and introduces staff and roles. The Chair also makes sure that the submitters are a part of the process and explains the protocol for submitter involvement well (e.g. questions must be directed through the chair).'

Several respondents appeared to perceive the positive changes observed in relation to the 'experience' of the Chair or Commissioner with regard to the management of hearings. Generally, respondents assigned lesser ratings in both 'extent' and 'significance' for those Chairs or Commissioners who are more experienced in the management of hearings, than those with less experience. Some respondents were careful to point out that the changes exhibited could also be attributed, in part, to other factors such as evolving experience over time, personal style, and a change in panel composition from elected representatives to a commissioner only panel.

• Regarding the performance of another Chair, it was reported that there had been an improvement in her confidence with running the hearing and knowledge for the procedure. It was further commented that: '[The Chair] is very good; she understands RMA issues and her skills have evolved over time'.
• The following comment was provided in relation to the performance of another Chair:

'Overall he has always been very good. The changes noticed are minor and are a reflection of the 'continuing maturation' of [the Chair]. In particular, he is 'more relaxed but retains firm control' and he is 'inclusive, particularly if parties are marginal.'

• Another Chair was reported to have exhibited minor improvements in his overall knowledge of the Resource Management Act, in addition to the other key categories of positive change. The participant qualified the 'minor' ratings assigned with the comment that:

'The Chair's knowledge and experience was good to begin with, therefore there was not much room for improvement.'

• A couple of respondents consistently reported positive changes to the way in which another Chair manages and conducts hearings. It was commented that:

'The chair has always run a good hearing given his professional business background, however, the training has 'fine-tuned' and clarified what is expected from him.'

It was further commented that this Chair is 'assured and competent - this may be partly due to training but is largely due to personality and style'.

• One respondent commented on another Chair dealing with district issues. This Chair was reported to be new to the role following the 2004 local body elections. Specifically it was commented that:

'While [the Chair] has always been good, the training has really helped him and has resulted in moderate-major changes '7' in both extent and significance to the areas of confidence in managing the hearing, knowledge of procedure, managing and explaining staff involvement, and managing submitter involvement.'

• A couple of respondents consistently reported positive changes in the performance of a particular Commissioner Panel, particularly in relation to knowledge of the procedure, managing submitter involvement, managing and explaining staff involvement, and dispute resolution. The following comments were provided:

'Over the past 12 months there has been a distinct change between the old [elected representatives] and new [commissioner only] committee formats in all areas [of hearings management].'

'The introduction of the independent Chairs has resulted in a more professional approach which has been positively received by applicants and submitters. Lawyers and planning consultants representing applicants and submitters have been positive in their feedback. Lawyers seem to appreciate the experience and knowledge of the independent chairs. Legal issues are less confrontational. Greater trust that staff are not unduly influencing the hearing panel as they no longer take lunch and other breaks with the Panel. Chairs are more confident in doing what they think is appropriate rather than just endorsing and following staff advice as used to be the case. Chairs are seen to take control of proceedings. Public perceptions are all positive.'

'Independent chairs have also established, whether real or perceived, a much greater acceptance from applicants and submitters that they have received a fair and unbiased hearing.'

Observations and Illustrations Where No Changes Were Observed

Approximately 46% of chairpersons or sole commissioners were reported by respondents as showing no change in conduct or management of hearings.

Many respondents suggested possible reasons for why there had been no perceived changes in performance. A common view expressed was that chairs or sole commissioners were operating to a high standard regard prior to training and so there was very little room for improvement. This can be illustrated by the following range of comments relating to various chairs:

• 'Same Chair since 1998 so already operating at a very high level. Everyone knows the process well and the Chair runs the hearing well. Only minor 'fine tuning' resulting from the MGD training.'
• 'This Chair has always rated highly. The Chair is good on process. There is no noticeable change.'
• 'The Chairs were already experienced and selected as chair given their background and experience. [Council] staff are careful in their recommendations for chairperson for the hearing knowing that their councillors are not always experienced enough to run a hearing.'
• 'The Chair is very experienced with a legal background and so was operating at a very high level before training. No changes were observed.'
• 'Not really for the commissioners that operate at such a high level anyway. However the training is valued - councils are developing a policy that no Commissioners will be used unless they have been certified under the programme. A general observation is that for new commissioners or councillors the programme would be far more beneficial.'
• 'The Chair is very good and has been for some time. No change has been noticed.'
• 'Chair has always been good.'
• 'Long serving Chair, pretty good and consistent.'

Areas of Concern

A few participants variously noted concerns with some aspects of chairperson or sole commissioner performance.

• One participant expressed concern that while the hearings committee made immediate procedural changes to the way in which the hearing was managed in accordance with the MGDP training, the practical implications for council staff was quite significant and was viewed as being a potential negative area of change:

'After training the change was immediate - quite a shock - the planner no longer sat alongside the panel and could no longer sit with panel during deliberations. While they acted in accordance with the training, the practical implications of the changes were not so positive and I had concerns, i.e. communication during the hearing became difficult given the new seating arrangements, and it became difficult to write the decision when you can't be present during the deliberations. Along with the changes to procedure, the Chair appeared to be less relaxed and less confident with the new approach. What was once a relaxed informal environment became more formal and slightly awkward. So, [the training resulted in both good and bad changes] - decreased confidence whilst having taken on board new skills.'

Several participants reported some aspects of performance when there had been no detectable change, but that where participants were expecting changes to have occurred as a result of training. For example:

• 'One area that has not seen any improvement is that sometimes when a hearing is closed or adjourned, panel members are still talking to parties which does not give a very good impression.'
• 'There is no clear involvement of submitters demonstrated through the chamber layout. It is not conducive to a relaxed environment for submitters. The Chair does his best to include submitters but there has been no decision for a long-term solution for room layout.'
• 'He frequently refers to the learnings taken from the training during hearings and constantly refers to "best practice" but his conduct does not reflect new found knowledge.'
• 'One area that needs improvements is that during the site visit, submitters try to approach the Chair and discuss the application. The Chair and the Committee need to keep professional boundaries in relation to the most appropriate time to discuss the merits of the applications.'
• 'Often a new commissioner at a council does not know what they are doing. Still too much influence by reporting officers. Long way to go to get to grips with what they should be doing.'
• 'Chair can fall down sometimes on matters of procedure, particularly with respect to knowing how to deal with unexpected issues such as a submitter speaking outside their submission.'
• 'There is a negative change associated with the change in panel membership in 2004 - the current nature of the panel means we have separate panels depending on the nature of the resource consent application which has resulted in a loss of consistency across the geographical areas of the district.'

3.3.2 Delivery of Questions

Q2 Have you noticed any changes to the way in which individual committee members form and put questions to parties?

Question 2 examines whether respondents had detected a change in the way individual committee members form and put questions to parties during hearings over the study period.

More than half (54%) of the individual committee members were reported as showing positive changes in how questions were formed and put to parties during a hearing.

Table 4 shows a summary of the types of changes observed during the study period and the general proportions of individual committee members reported as showing such changes. Average ratings are provided for each category of change, including the 'extent' or degree of the change, and the 'significance' of that change.

Table 4

A number of observations can be drawn from the information presented in Table 4, discussed as follows.

Types of Positive Changes

Of the 54% of individual committee members who showed positive changes, the three most commonly reported improved performance areas were:

• effectiveness of questioning - (84%)
• ability to isolate and communicate key issues - (59%)
• questioning technique and style - (56%).

The remaining key performance areas where changes were reported included:

• the ability to distinguish facts, assumptions and opinions - (28%)
• a change in tone and attitude - (22%).

Extent and Significance of Positive Change

Of all the positive changes reported, respondents assigned the highest average ratings, both in terms of the 'degree' and 'significance', to changes in tone and attitude, increased ability to distinguish facts, assumptions and opinions, and questioning technique/style (average ratings between 4-6 = 'moderate').

Respondents generally viewed changes observed in relation to general effectiveness of questioning and the ability to isolate and communicate key issues, to be the least 'significant' and to be the change of lesser 'degree' (average ratings between 3.5-4.5 ='minor-moderate').

Observations and Illustrations of Positive Change

Many respondents provided qualitative comments to support their observations of change in the performance areas discussed above. A selection of comments follows to illustrate some of the key themes and views that emerged across respondents in relation to the questioning of individual members and panels as a whole.

Many respondents reported immediate and direct changes in the performance of individual members following the MGDP training. Some examples include:

• With regard to one member of a hearings committee, it was commented that 'lately she is thinking more about her questions so there has been an overall improvement' to the way in which she is able to isolate and communicate key issues posed in questions.
• In relation to other members of the same hearings committee (including a councillor and independent commissioners) it is noted that while they have always been good, they appear 'more inquisitorial', are 'making sure all parties express their views and are asking questions to expose weaknesses', and are also 'undertaking a negotiation role in terms of conditions and being aware of their implications'.
• A member of another hearings committee has been reported to have demonstrated a significant change in her approach with regard to questioning. Specifically, it is reported that 'she is more methodical and structured, makes sure she understands what she is being told, pulls points out, and looks for alternatives'. Another respondent made the general observation that the hearings committee of which she is a member [as a whole] 'have more understanding and confidence - they are all asking questions now rather than just one member'.
• A few respondents consistently noted changes to the overall effectiveness and questioning technique and style of members of another hearings committee. Specifically it was commented that:
• one member's questions are 'now less tentative and more searching'
• two members both 'purposefully and cleverly ask questions of parties in a hearing to highlight an issue openly, i.e. they know the answer but want everyone present to benefit from hearing the answer. In the past they used to state what the situation was rather than forming a question. The new approach shows inclusiveness and displays that their minds are not made up and still in an inquiry mode'
• collectively, these improvements are reported to have 'changed the whole nature of the hearing because the questioning is now deeper, more relevant and more effective'.
• One respondent has noted a general improvement to the way in which four members of another hearings committee form and put questions to parties. In particular, changes were observed in their questioning technique and style, tone and attitude, ability to distinguish facts, assumptions and opinions, ability to isolate and communicate key issues, and overall effectiveness of questioning. It was reported that these changes are particularly apparent with two members where they have 'adopted a new approach of actively trying to tease out issues from parties to clarify issues within the parameters of the resource consent process. They are good at explaining their approach to parties.'
• An improvement was reported in the questioning technique and style, tone and attitude, and overall effectiveness of a member of other hearings committee. It was noted that 'moderate improvements in technique has generally resulted in significantly improved outcomes.'

A few respondents provided more generalised comments about the performance of the committee as a unit, rather than commenting on specific members. A selection of these comments follows:

• One respondent provided a very general view of the performance of four hearings committees. Overall it was noted that:

'Members are generally listening more and getting a better grasp of the issues. Some are possibly a little more circumspect with their questions. Some issues do get political and the members are conscious that they do not want to prejudice the decision by asking questions that may indicate a bias or predisposition. They are more careful because they are aware of bias and perceptions.'

• With regard to the overall questioning technique and style of another hearings committee, it was noted that the committee has 'learnt to ask more relevant and specific questions, and there is less occurrence of leading questions now.'
• Another hearings committee is reported to have 'taken on board a more thoughtful and careful technique for questioning.'
• One respondent commented that the members of another hearings committee have generally improved the effectiveness of their questions, are now better able to distinguish opinions, and demonstrate a better weighting of evidence. In particular, it was commented that:

'The committee have started to 'split' areas of the application and allocate to each of the committee members to read up on so that their questioning can be more effective and prepared during the hearing - a good change.'

• A couple of respondents consistently noted improvements in the performance of another hearings committee. The following comments were provided:

'Questions are now more focused and relate to the key issues at hand. There is a variation in performance across committee members, with some exhibiting a major change, and others exhibiting a minor to moderate change.'

'The committee is no longer making statements, and is more inclined to ask questions. The questions are more focused and relevant. They are better at identifying issues and prying out information.'

• The following positive comments were made in relation to another hearings committee:

'Questioning technique - less grand-standing in front of submitters, and more logical questions, particularly for newer members.'

'Effectiveness - less 'sucked in' by peripheral non resource management issues. Clearer on key issues.'

• A general improvement was reported for another hearings committee: 'Generally, across all committee members they now seem to know the protocol for questioning and their technique has improved a lot'.

One respondent highlighted that changes exhibited could also be attributed, in part, to increasing experience gained on panels in conjunction with the training, as follows:

• A member of the hearings committee in question 'now questions more deeply and is not always satisfied with a simple response ... she delves deeper to get a more thorough response'. The change was attributed to a 'likely combination of increasing experience on panels in combination with Making Good Decision training'.

Observations and Illustrations Where No Changes Were Observed

Approximately 46% of individual committee members were reported as showing no change in how they formed and put questions to parties during hearings.

Many respondents suggested possible reasons for why there had been no perceived changes in performance. Two key themes emerged, including:

• Less experienced members (particularly councillors) who are new to the role do not necessarily ask questions during the hearing and tend to rely on the chair to manage the questioning process. Consequently, respondents felt they had little opportunity to observe the performance of committee members in this regard, and that the lack of questioning by committee members leads to a lack of confidence in this competency area.

'The remaining three councillors are relatively new to the role and therefore do not ask questions. I have therefore not had much opportunity to gauge any change in the performance.'

'Not much experience with the councillors listed as they are first term appointments.'

• Where the Chair, Commissioner, individual committee members, or the committee as a whole, were perceived to have been operating to a high standard prior to training, there was very little room for improvement. For example:

'Very experienced Chair and Deputy Chair who have always been able to ask effective questions.'

'Again, very experienced panel to begin with. Commissioner has professional background and has always asked very legitimate questions, usually in their own areas of expertise.'

Other reasons provided included a lack of resources for training, and a general lack of capacity. For example:

'Questions asked reveal that the Committee is not well equipped to deal with relevant issues. Staff can misuse the process.'

'[The district] is a small community and the Council has little money for training. They are generally ignorant of the proper questions they should be asking.' [It is noted that in fact members from this district subsequently enrolled for the third round of the MGDP training].

Areas of Concern

A few participants variously noted concerns with some aspects of performance when there had been no detectable change, but that where participants were expecting changes to have occurred as a result of training. For example:

• '[Councillor] specialises in asking 'left field' questions, and has always done this - this is an area where the training does not appear to have resulted in any improvements.'
• '[Councillor] does not focus questions and does not relate them to RMA issues - this is an area where the training does not appear to have resulted in any improvements.'
• '[Councillors] still ask leading questions or loaded questions - thought this would be an area where improvements could have been seen but hasn't appeared to change.'
• '[Commissioner] still thinks like a planner and assesses applications based on his experiences and knowledge rather than considering the application on the basis of the evidence presented.'

3.3.3 Impartiality of Chairperson/Commissioner

Q3 Have you noticed any changes to the impartiality of the Chairperson/ Commissioner?

Question 3 examines whether respondents had detected a change in the impartiality of the chairperson or sole commissioner during hearings over the study period.

Just over one third (39%) of the chairpersons or sole commissioners were reported as showing positive changes in the matter of impartiality.

Table 5 shows a summary of the types of changes observed during the study period and the general proportions of chairpersons / sole commissioners reported as showing such changes. Average ratings are provided for each change, including the 'extent' or degree of the change, and the 'significance' of that change.

Table 5

A number of observations can be drawn from the information presented in Table 5, discussed as follows.

Types of Positive Changes

Of the 39% of chairpersons / sole commissioners who were reported as showing positive changes, the most commonly reported performance area was reducing the risk of being perceived as biased (70%).

The remaining key performance areas where positive changes were reported included:

• appropriate management of the hearing - 48%
• addressing any perceived conflicts of interests - 39%
• the way in which questions are framed - 17%.

Extent and Significance of Positive Change

For the most common area of change reported (reducing the risk of being perceived as biased) respondents assigned an average rating of just over '4' (moderate) for both the degree of change observed and significance.

For the remaining three performance areas, respondents consistently assigned a slightly higher average rating for the degree of change than for the significance of change (average ratings between 4-6 = 'moderate').

Observations and Illustrations of Positive Change

Many respondents provided qualitative comments to support their observations of change in the performance areas discussed above. A selection of comments follows to illustrate some of the key themes and views that emerged across respondents.

Many respondents provided comments that would indicate a general impression that the training has 'formalised' procedures surrounding the perception of 'impartiality', and that this change has been driven largely by the chairperson or sole commissioner having developed a heightened awareness of how others perceive their performance. Some examples include:

• Several respondents commented on changes to the way the Chair of one hearings committee demonstrated his impartiality, including:

'[He] makes everyone aware of the process and the purpose of the hearings committee etc. Is very conscious of being perceived as having an open mind and states during hearings "don't infer from our questions that we have already made up our mind".'

'The desire to be impartial has always been there; he simply expresses it better. Only a minor rating as he has always been good.'

'[He] has always been impartial but now makes clear statements to evidence his impartiality - very conscious of the impression he is giving - comes across with the overall management of the hearing.'

'There has been a clear change in seating arrangements - we all used to sit in a horse shoe with the council advisor, handling officer and then committee secretary beside the chair - applicants and submitters sat opposite which created a perception of teams. Now [the Chair] has provided a gap between the Chair and council staff. Any supporting council staff now sit in general seating and are called up by the Chair to present.'

'Tea breaks during the hearing - he now makes a specific statement to everyone attending that no one is to speak to the committee about the application during the break.'

'Site visit - the handling officer and advisor used to attend site visits with the committee. [The Chair] is now reviewing this in order to avoid the perception that the handling officer is influencing the view - still in progress.'

'There is an increasing number of 'speeches' during hearings indicating that particular questions do not infer a bias or predisposition in any one direction. There is more explanation that no views are held. Not really a positive change unless it is believed. It's not significant but helps credibility.'

• It was observed that a member of another hearings committee, has exhibited three key positive changes in performance, illustrated by the following comments:

'The Chair now makes an effort to include all parties to reduce the risk of being perceived as biased.'

'Where there is a conflict, and where councillors step down prior to hearing, this is now clearly stated to all parties at the hearing.'

'Better management of hearing procedures - it is now clearly stated the purpose of the staff report being evidence, and that the site visit has been undertaken without the involvement of Council staff, and that council officer involvement after the hearing is limited to technical matters only.'

• It was reported that while the Chair of another hearings committee, 'was already very conscious of the impartiality issue', he 'now addresses conflicts of interests more transparently.'
• The Chair of another hearings committee is reported to 'now always ask panel members to declare whether they have a conflict of interest at the outset of a hearing.'
• Another Chair is 'more aware now that during break times the committee should not be talking with people during breaks etc. More conscious of being "fair" and "impartial"'.
• Another chair is reported as 'becoming more aware of transparency and the importance of not showing favouritism of any one party'. In particular this has been demonstrated by two areas of key change including:

'Now panel remains separate from council officers during any break - prior to training panel and officers used to share lunch.'

'Now started to announce and make clear any potential conflicts.'

• With regard to another hearings committee, the following comments were provided:

'Prior to training individual members used to visit the site individually. Now the members organise themselves to visit the site formally prior to the hearing.'

'[The Chair] makes sure he is neutral and clarifies conflicts of interest before the hearing begins - generally more aware of this requirement.'

'After the June refresher course they no longer want reporting officers present during the deliberations but okay for planning manager to be present to clarify point.'

A few respondents provided more generalised comments about the performance of the committee as a unit, rather than commenting on the performance of the chair or sole commissioner alone, including:

• One hearings committee is reported to have 'improved greatly since the training as they are more aware of the issues. If there is any level of doubt, the committee members will bring it to the attention of the hearing to see if anyone wants to postpone the hearing until another commissioner is available.'
• Another hearings committee has generally demonstrated positive improvements in the way they reduce the risk of being perceived as biased. It was commented that they 'now express during the hearing about keeping an open mind etc. They are generally more focused/aware during the hearings.'

A couple of respondents provided observations regarding the perception of impartiality of a 'commissioner only' hearings panel, compared with a committee comprising only elected representatives. For example:

• With regard to one council, it was commented by one respondent that the commissioner panel had demonstrated a significant positive change to all aspects of impartially. It was commented that 'rightly or wrongly, independent chairs are seen to be more impartial from the Council and Council staff.'
• Another participant consultant noted a similar perception of change in relation to that council: 'The independent commissioner structure gives a better impression of impartiality. Generally across all commissioners there has been a general improvement in each of the aspects listed.'
• One respondent noted a concern with the practical implications of some of the changes made to ensure impartiality. Specifically, the following comment was provided:

'After training the change was immediate - quite a shock - the planner no longer sat alongside the panel and could no longer sit with panel during deliberations. While they acted in accordance with the training, the practical implications of the changes were not so positive and I had concerns, i.e. communication during the hearing became difficult given the new seating arrangements, and it became difficult to write the decision when you can't be present during the deliberations. Along with the changes to procedure, the Chair appeared to be less relaxed and less confident with the new approach. What was once a relaxed informal environment became more formal and slightly awkward. So, [the training resulted in both good and bad changes] - decreased confidence whilst having taken on board new skills.'

Observations and Illustrations Where No Changes Were Observed

Approximately 61% of chairpersons / sole commissioners were reported as showing no change in impartiality.

Many respondents suggested possible reasons for why there had been no perceived changes in performance. One key theme emerged:

• Impartiality was not in question prior to the training, for example:

'There has been no noticeable change. Members have generally always presented themselves as wholly impartial. It is evidence that panels are rigorously seeking to understand both sides of the argument.'

'He has always exhibited a high standard regarding impartiality and is very conscious that everybody has a fair go.'

'The Chair is a long-term councillor and has always been a good performer.'

'Have always found [the member] to be very impartial in her conduct. No changes observed.'

In addition, other reasons provided included:

• Council staff are seen to play an important role in ensuring impartiality, for example:

'Council staff played an important role in ensuring that those on the panels were impartial and had no conflict of interest or been involved with a previous decision that submitters might see as bias.'

• Insufficient exposure to observe performance in this area, for example:

'[Change is] difficult to detect when the councillors don't say much; it is easier to detect change of the commissioners during the hearing as you relate mostly to them.'

• Procedural changes were in development but not yet implemented:

'No changes, however now more awareness about the importance of the perception of impartiality re seating arrangements - in the process of revising where planner sits.'

Areas of Concern

Several participants variously raised concerns with some aspects of impartiality when there had been no detectable change, but that where participants were expecting changes to have occurred as a result of training. For example:

• 'He has always given the impression of which way he will go with the decision - there have been no changes here.'
• 'He has a particular relationship with applicants' experts that could be perceived badly by submitters, e.g. always asking planning consultants over their own council support.'
• 'A couple of the councillors appear to be influenced by their general feelings.'
• 'A general negative observation is that the committee goes to tea break together. Have a gut feeling that they have had a discussion about the application during this break. When they return there is a feeling that they have somehow made a decision outside of the formal process.'
• 'The only criticism is that sometimes the councillors do not use their authority to reign people in when they go off track and get onto tangents or start grand-standing. Commissioners tend to be a bit more hard-nosed.'

3.3.4 Quality of Decision

Q4 Have you noticed any changes to the robustness and clarity of the decision?

Question 4 examines whether respondents had detected a change in the robustness and clarity of decisions.

Just over half (51%) of the hearings panels were reported as showing positive changes in the robustness and clarity of decisions.

Table 6 shows a summary of the types of changes observed during the study period and the general proportions of panels reported as showing such change. Average ratings are provided for each change, including the 'extent' or degree of the change, and the 'significance' of that change.

Table 6

A number of observations can be drawn from the information presented in Table 6, discussed as follows.

Types of Positive Changes

Of the 51% of panels who were reported as showing positive changes, the most commonly reported performance areas were:

• reasons specified within the decision (70%)
• inclusion of appropriate conditions within the decision (53%)
• all relevant issues properly addressed (53%)
• complexity captured (47%)
• summary of evidence presented (43%)
• clearly set out statutory tests (37%)
• balanced evidence (37%)
• submissions addressed (27%).

Observations and Illustrations of Positive Change

Many respondents provided qualitative comments to support their observations of change in the performance areas discussed above. Following is a selection of comments to illustrate some of the key themes and views to have emerged across respondents.

• Several respondents reported a key positive improvement to be that the decisions now follow Section 113 requirements, illustrated by the following comments:

'The biggest change in decision-making has been the presentation of the decision which now follows section 113.'

'Decisions follow section 113. They now have a clear structure.'

'There is a trend to be more detailed. They follow section 113 requirements.'

• Other positive comments include:

'More depth in all areas rated. Decisions have become more robust and contain more information.'

'There has been a general increase in recognition by the committee of RMA matters and therefore the complexity of issues is being captured within decisions (this is particularly true of [one member] who has a RMA background).'

'More structured deliberations, more aware of officers role during deliberations.'

'Deliberations are now more focused on relevant RMA issues. Prior to the training there was some ambiguity and less prioritisation of RMA issues.'

'There is a greater focus on not simply repeating what they have heard. Giving reasons and reasons for conditions were explicitly identified as showing significant change.'

'They now place far more emphasis on planning and statutory provisions during deliberations and this is reflected in decisions. Before they did not give reasons based on planning but they are now far more aware and take deliberations more seriously.'

'Generally the decisions have more content now, particularly including the reasons for the decision.'

'[One member] now promotes best practice and consequently the decision template has been updated to include a summary of evidence, points of contention, and main findings of fact sections.'

'In the past 12 months [the Council] has reviewed its decision process and now produces the best decisions from any council he has seen.'

'Readability has improved.'

'The decisions are better, with basic information being copied from the officer's report, e.g. about the application and submission details. Then the committee includes details from their notes about the matters raised in the hearing, questions asked. Their reasons for decision-making are becoming more detailed as well as they include discussion about the issues raised and why they include the conditions they do. They are also considering how they lay out the decision. Presently decisions/reasons come at end after discussion about evidence, and are considering whether it should be the other way round.'

'Only possible change here is that they now don't want the reporting officer present during the deliberations.'

However, from the remaining range of comments received it appeared more difficult for respondents to attribute the changes to the MGDP. The changes seem to be less direct, less tangible, and a result of many different factors. Following is a selection of comments to illustrate:

'Notified decisions are much better, but hard to say why. Partly due to decisions being written by Consultants and better section 42A reports.'

'Yes definite improvements - decisions are now much more detailed. This is a combination of having a new district planner, MGD training, and RMA Amendment Act changes.'

'The committee does get assistance with decision writing. The planning manager/director sits with the committee to provide advice during deliberations (they have also been on training). The reporting officer has no role in decision.'

'The changes to the Act in 2005 have probably been more responsible for the improvements in the written decisions and the fact the Council have adopted a new template to meet these new requirements.'

'The decisions are certainly robust and are written in considerable detail. The changes observed have been in development for many years so are not necessarily attributable to the training.'

Observations and Illustrations Where No Changes Were Observed

Approximately 49% of panels were reported as showing no change in the robustness and clarity of decisions.

Many respondents suggested possible reasons for why there had been no perceived changes in performance. Two key themes emerged, including:

• Decisions produced were of a high standard prior to the training:

'Chair has always maintained a high standard when putting decision together.'

'Decisions are usually fully expressed and have been for some time.'

'Decisions always very robust; no change.'

'The committee always makes a very reasoned and balanced decision.'

• Council staff play a role in the decision-writing, for example:

'A decision reflects the analysis and reasoning in staff reports. Junior planner analysis is pedestrian in many cases so decisions tend to follow that.'

'The decisions are similar to the officer reports. The panel may have made the decision, but it is written up elsewhere.'

'The Council relies heavily on the planner, and the written decision is a reflection on the planning report. Decisions are consistent.'

'No direct changes to actual decision writing as it is the reporting officer who writes the decision. More changes are due to the RMA Amendment Act 2005. Panel does not have the skills to actually write the decision.'

'Decisions still appear to be written by staff.'

A further reason provided was that a given committee had insufficient opportunity to demonstrate improvements in this area:

'There has not been very frequent opportunities for committee to demonstrate any improvements in this area because: 1) few hearings since 05 RMA Amendments and 2) planner largely takes on board the writing of decision.'

Areas of Concern

A few participants variously raised concerns with some aspects of this part of the decision-making process:

• 'Decisions are longer, take more time to prepare and the costs to applicant are greater.'
• 'Increasing costs to applicants given the increase in process and requirements for hearing and decision writing.'
• 'Examples of bad practice - copy of draft decision from officer sent with agenda prior to hearing.'
• 'Decisions are now very large and go into great detail. They are covering everything to the point of almost being too careful and going too far. Staff seem to write decisions, but are taking longer. The written decision often does not reflect the verbal decision or the way the hearing went.'
• 'It looks as if staff have always written decisions and always will. Recently statements have been included indicating that councillors are expressing their views on the conclusions in the decision. Doubts however that the decision complies with the spirit of section 113.'

Others suggested areas for potential improvement:

• 'One area for potential improvement is that conditions are sometimes ambiguous in relation to overall judgment and reasoning behind decision.'
• 'A couple of areas have not improved including the understanding of section 104 matters during deliberation, and the balancing and weighting of issues not strong within the decision.'
• 'An area that could benefit from improvement - they still have a problem with trying to keep everyone happy - always trying to obtain a win/win result; this can detract from a quality planning decision by trying to appease submitters concerns without relevant planning justifications.'
• 'Still disturbed that most decisions are written by Council officers (reporting officers). More true decisions are made but not all reasons are developed. The decisions are closer to the mark though. The conditions are sent to the Chair for review.'

3.3.5 Overall Awareness/Perceptions of the Making Good Decisions Programme

Q5 If training has occurred, has it made a difference in your opinion to the overall performance of the hearings panel (as a whole, as well as individual committee members, chairs, commissioners) in relation to decision-making?

Question 5 examines whether respondents had detected a difference to the overall performance of hearings panels (committee members, chairs, commissioners) due to the MGDP training.

The majority of respondents interviewed were aware of the MGDP and whether the subject hearings panels had attended training and attained certification. This was particularly true for those respondents who were reporting officers and consents managers.

Seventy-six percent of the hearings panels appraised by respondents were reported as showing an improved overall performance as a result of the MGDP.

Some general comments include:

• 'Yes - in all cases, even for very experienced commissioners. It gives you the chance to evaluate your own performance. Some practices have changed, such as reading all information prior to the hearing.'
• 'Yes has improved overall performance of the committee as a unit - increased confidence in roles.'
• 'If anything it has made them aware of process issues, for example rather than just being satisfied with quotes from cases they now request full copies.'
• 'Yes. There is far more professionalism and an overall improvement. They are taking the Act into account.'
• 'Yes - the Council now realise the decision should be law oriented.'
• 'Yes - a greater awareness on the effects of the decision-making process and greater awareness/application of rules of a district plan etc.'
• 'Yes a moderate change overall especially in relation to procedural issues. Also took part in the refresher course but have not the opportunity to put learnings into practice.'
• 'Overall yes - the updated training has helped them identify their own deficiencies more.'
• 'Yes overall a positive impact, and has stimulated good debate amongst panel.'
• 'Yes, it has heightened their awareness about being seen to be fair.'
• 'Yes the training has made an overall positive difference. The sudden changes made immediately following training to procedure have now been revised and they have found a nice balance. They take the training very seriously and are quite proud of their achievement.'
• 'Many of the regional councillors have acknowledged that training very worthwhile and have appreciated the opportunity to learn.'
• 'Yes. The panel has more recognition of responsibilities and legalities, and a clear recognition of community involvement.'
• 'There is also more recognition of the roles and responsibilities between the panel and Council staff.'
• 'Training has focused the understanding and the differentiation between applications. For example, the committee's overall understanding of activity status and the different statutory tests has improved.'

Some more detailed positive responses include:

• 'Yes absolutely there have been positive changes. Training has made a difference individually and as a unit. The members keep each other on track and focused on their learnings from the programme. They often refer to the training and what they learnt to be best practice. They're proud of having participated in the programme. For some without any professional background it has helped them focus on the role and see their role as having more value. They now have more respect for reporting planners and what their role is and the training that they have had. They better understand the role of the handling officer and planning adviser role within the hearing.'
• 'Yes. They work more as a team and insist on seeing the decision and commenting on conditions prior to signing it. They also insist on attending site visits, and send the reporting officer away while deliberating. They have become more aware of their responsibility and have taken a greater interest in the way that delegated decisions are also being made and how the plan is interpreted.'
• 'Yes - has made a difference to performance - both as a unit and individually - combined knowledge of what is required has resulted in a big improvement of overall performance. They all talk about the training during hearings and to staff and take the accreditation very seriously. They have even held a meeting recently with all relevant staff to discuss key implications/requirements for change as a direct result of MGD training. At least one or two of the members have specifically commented at that meeting that they can't believe they went seven years without training and wish they had had the opportunity to do this earlier. Some were surprised at how inexperienced some other MGD participants seeking accreditation were.'

Some respondents felt that the impact of the training was dependent on the relative experience of the hearings panel with the hearings and decision-making process. For example:

• 'Yes overall there has been an improvement but it is not a quantum leap. More a slight improvement in some areas as panel were experienced before training commenced.'
• '[The member] has been given a theoretical understanding of why things are done and this has allowed him to grow. In general [the Council] has seen a maturing of the Committee. They have been together a long time.'
• 'Yes; definitely the changes are more noticeable here given the panel had less experience to begin with.'
• 'Yes, although the changes to a degree are masked - e.g. if the Chair was already good, improvements may not be noticed. Similarly while changes may be noticed in the public part of the hearing, and changes to procedure etc in the public excluded part of the hearing may not be noticed.'
• 'Yes - it definitely has - especially for first term councillors.'
• 'A general observation is that for new commissioners or councillors the programme would be far more beneficial.'
• 'It is noted that community board members who sometimes appear on the panel have observed that they are not familiar with the process and have little knowledge of the planning procedure. This highlights that the committee is very experienced compared with community board members.'

Several respondents noted other factors contributing to overall improvements, for example:

• 'It is also noted that [the Council] has in-house training - councillors are subsequently chosen for particular hearings to match their experience to the specific case in hearing.'
• 'Overall, we run a very good process at [the Council] - we have sufficient number of hearings to have developed a good knowledge of procedure.'
• 'Yes - training has made a difference but we also have a well developed in-house training programme for the new committee members including a quality control procedure on staff planners report and performance review for each committee member following each hearing.'
• 'Yes it has. Not only the training itself but the fact that planners and lawyers who regularly attend hearings are aware of the training or may have attended the training themselves. The Council has also introduced a code of conduct guideline for all panel members as well as a new template for decisions based on the 2005 Amendments to section 113 of the Act. In-house training has also taken place as a follow up to the MfE programme.'
• 'Yes - there has been a noticeable change over the last 12 months. Training has made a difference but also notes that in-house training within the Council is very active. The change in hearings committee structure in pre and post 2004 local body elections have resulted in significant changes.'
• 'Working with independent commissioners and learning from them.'
• 'Councillors on the panel clearly used their local knowledge in the hearing often asking questions specific to that local knowledge as opposed to independent commissioners who were not necessarily as familiar with the local natural and physical environment.'

A couple of respondents also noted that members of council management had also attended training and that this was viewed positively, for example:

'Because managers have also attended training there have been positive flow-on effects to Council staff.'

A few respondents noted how highly the training is viewed from a wider council policy perspective, for example:

'However, the training is valued - councils are developing a policy that no commissioners will be used unless they have been certified under the programme.'

'[The Council] likes to choose commissioners on the basis that they have attended the programme.'

A few respondents raised concerns with regard to the MGDP training material, in particular concerns with the practicalities of implementing the guidance on appropriate hearing layouts. For example:

'There are two areas within the training module that I question - there for theoretical reasons and are not necessarily practical:

1. Decision-making without reporting officer being present to clarify any matters. This leads to problems at the Environment Court where officers cannot support the decisions because the panel made the decision in the absence of the officer.
2. The model hearing room set up promoted in the module has practical implications in terms of the communication between the chair and the officer.

'One area of concern in the training module is that there is some ambiguity surrounding staff involvement in the decision-making process, and during deliberations, etc.'

'Some changes from the RMA amendment have not been reflected in the programme, e.g. s113 matters that need to be considered by courts and prior weighting of issues in decision.'

'A general concern with the MGD training module - questions the practicalities of the recommended sitting arrangements in the manual.'

Of all the hearings panels appraised by respondents, 24% were reported as not showing an improved overall performance as a result of the MGDP. A selection of comments relating to this observation follows:

'Not really, panel performance very consistent over study period.'

'Overall the Committee is perhaps more aware of statutory tests, but overall the training has not really improved the performance of the Committee.'

'Not really for the commissioners that operate at such a high level anyway.'

'The less experienced councillors anecdotally report being more aware of planning and RMA issues but have not yet demonstrated this.'

'Generally - areas where there has been no improvement are largely due to personality issues and no amount of training will override that.'

3.3.6 Identification of Further Hearings and Decision-making Training Needs

Q6 Overall, can you think of any other roles associated with the hearing and decision-making process where training needs to occur?

Question 6 sought to identify any further roles in the hearings and decision-making process that would benefit from training, and in what specific areas the roles require training.

The majority of respondents (86%) were of the view that further training was required for roles associated with the hearing and decision-making process.

The predominantly reported roles where respondents thought training would be beneficial included chairperson and committee members, commissioners and reporting officers.

A key training requirement for these roles reported by many respondents was in the area of decision writing, both in regard to the skills required to write a decision and the various roles and responsibilities associated with the decision-writing process.

Some felt that there is still confusion surrounding the role of reporting officers during the decision-making process, both from the perspective of reporting officers themselves, and hearings panels. There is a perception that reporting officers are too influential and do not understand their role, and that hearings panels do no sufficiently understand the role of the reporting officer.

Many felt that the Reporting Officer Training needs to be held regularly particularly given the high turnover of planners within councils, and that many junior planners are responsible for writing the decisions.

A common response was that the MGD training needs to be rolled out following each election cycle and refresher courses are required.

Other topic areas where training was viewed as being required included:

• Affected parties.
• Condition writing.
• District plan techniques and styles.
• Chairs need to learn how to deal with lawyers playing games.
• Better understanding of the permitted baseline.
• Section 32 thinking.
• The relationship between regional and territorial authorities in joint hearings would be a good training exercise - these hearings throw up issues on who decides on what who contributes what, and how to work together.
• Section 42 reports, i.e. what is required in them.
• Training relating to case law/cumulative effects/precedent effects, etc.
• How to write decisions in accordance with section 113.
• Understanding the permissible scope of conditions.
• Joint hearings.
• Writing decisions that clearly justify the consent conditions.
• Giving more than just lip service to Part II RMA matters.

Several respondents reported on specific areas of the MGDP where they felt that the training could be extended:

• The programme needs more emphasis on statutory tests and knowledge of the RMA during deliberations.
• The scope of the programme also needs to extend to include section 93/94 decision.
• More skills in terms of identifying relevant versus irrelevant considerations.
• Link between planning department, hearings committee and management levels, i.e. overall accountability of council for decision - council not getting feedback about decisions - presents a risk when they do not know implications of particular decisions, etc.
• Planning management should be a part of any further MGD training to get flow-on benefits to staff.
• Training with respect to conditions, particularly with respect to procedure, e.g. conditions imposed but not recommended in hearing or discussed by any party.
• Delegated members who hear and determine non-hearing applications should have the same MGD training.
• Each council has a different way of doing site visits and you don't know until you get there when it will be. Would be helpful if there was a standard practice.
• Some training and guidance or protocol for councillors who make a submission on an application would be useful. They need to be aware of their different roles as a councillor and as a member of the public.
• Might be useful to have training for committee members on how to actually navigate and use their own district plans.
• Dispute resolution.
• Chairs could use more training in dealing with procedures etc, when the unexpected arises.
• There should be training around the scope of applications and the scope of submissions, and knowing how far you can go in accepting new information.
• Difference between expert opinion and advocacy.

Some respondents reported other hearings and decision-making related roles where training would be beneficial, including:

• Committee secretaries - could benefit from a greater understanding of the planning and decision-making process.
• Experts need to be trained in how to provide their opinion in a manner that is useful to a panel. Need training in how far you can go to achieve a solution if the obvious solution is outside application and submissions.
• MGD training for consultants.
• Submitters would benefit from training on whole process.
• There is a need for the layperson to develop knowledge of how to behave and what is relevant during a hearing.

A couple of respondents suggested a good way to further refine the skills learned as part of the MGD programme would be for MfE representative to attend deliberations to determine the role that staff play and to observe the structure used in coming to the decision.