The Trustpower Wairau River Hydro Power Proposal

• 2 Introduction
• 3 The Brief
• 4 Methodology
• 5 The Environmental Setting
• 6 Possible Call In of the Applications
• 7 Receipt of the Applications
• 8 Processing of the Applications
• 9 Commissioning of Reports
• 10 Notification of the Applications
• 11 Establishment of the Hearing Panel
• 12 Pre-hearing Meeting
• 13 The First Hearing
• 14 The Decisions
• 15 The Conditions Hearing and Decision
• 16 Conclusion
• Appendix 1 – Timeline for Processing the Applications
• Appendix 2 – Interview Questions
• Appendix 3 – The MDC Report Establishing the Hearing Panel

The Trustpower Wairau River Hydro Power Proposal:
A review of the processing of the resource consent applications

Summary

The Ministry for the Environment (MfE) has commissioned a review of the processing of resource consent applications made by TrustPower Limited (TPL) to construct and operate a new hydro power scheme on the Wairau River, Marlborough. The applications were processed under the provisions of the Resource Management Act 1991 (RMA) by the Marlborough District Council (MDC), which is a unitary authority under the Local Government Act 2002. The sole focus of the review is on the process employed by MDC to progress these consent applications, not the merit of the subsequent decisions made.

The first step in the review was to scan all the relevant MDC files on the applications, and speak to a number of relevant MDC staff. Two staff members of TPL were then interviewed, followed by interviews with representatives of six submitters, all of whom opposed the applications. These representatives were chosen because of their experience with statutory processes under the RMA.

Some of the criticisms made by these respondents were then put to the MDC for their response, and each of the three hearing commissioners were interviewed separately. This completed the gathering of information for the review.

The applications were lodged in July 2005 and notified in September 2005. The submission period was doubled to 40 days with the agreement of the applicant. There were 1442 submissions on the applications - 1117 were from within the scheme area; 325 from beyond. Five hundred and twenty-seven submitters supported the application, of which 80 wished to be heard. Nine hundred and three submitters opposed the applications, of which 527 said they wanted to be heard.

The applications engendered some strong feelings in the local community, most of them opposed to the proposed power scheme.

In November 2005, the MDC appointed a hearing panel comprising Tony Willy, a former judge who had served on the District Court, Tax Court and Environment Court as chair; Max Barber, an experienced resource management consultant; and Jill Bunting, a second term district councillor and then chair of the council’s hearing committee.

The hearing, which commenced on 12 June 2006, was adjourned on 12 December 2006 after 70 hearing days. An interim decision was released on 22 June 2007. The interim decision granted the applications sought by TPL, but did not specify the conditions on which they were granted. The “conditions hearing” took eight days between 12 January 2007 and 12 February 2007. Decisions on the conditions were released on 5 August 2008.

The interim decision was appealed by six parties, two of whom are closely linked. Those appeals have yet to be heard. One appeal – that from the Department of Conservation – has provisionally been settled with TrustPower.

The MDC contracted a local consultant and former council employee to help process the applications.

Submitters interviewed about the consents process made favourable comments about some elements of the processing of the TPL applications by MDC including:

• The consultant contracted by MDC was seen as very helpful and pragmatic. The s42A officer’s report was considered a succinct summary of the issues.
• The notification process was seen as satisfactory, although its timing was criticised by some parties.
• A pre-hearing meeting chaired by Tony Willy to set timelines and hearing procedures was seen as very helpful.
• The venue for the hearing, and the rapid availability of transcripts of the hearing, were both praised.

However, there were some strong criticisms raised by submitters interviewed concerning the hearing of the applications. These included:

• At TPL’s insistence the applications were notified prior to the “peer review” reports being completed. MDC opposed this, wanting the peer review reports completed first. Early notification is, however, consistent with case law, as an applicant has the right to insist that applications be notified provided certain criteria are met.
• The hearing panel, although acknowledged as intelligent and thorough, did not include technical skills in fields such as aquatic ecology and engineering. Consequently the panel asked many questions, one outcome of which was that the hearing took longer that would have otherwise been necessary. This resulted in extra expense being incurred by some of the participants as many witnesses were recalled, particularly those representing TrustPower, for whom 33 witnesses gave about 90 briefs of evidence.
• Submitters considered that the rules and procedures for the hearing were unclear and appeared to change as the hearing proceeded, with TPL counsel having an undue influence over the procedures. Hearing panel members, however, rejected this view and considered that any changes were signalled by appropriate memoranda.
• TPL’s legal team was seen as aggressive and divisive by some submitters. The panel on the other hand saw them as highly competent and professional.

The hearing panel split its decision and decision making into two parts. This followed a meeting with the applicant and the main institutional submitters¹, all of whom agreed to this approach. The first decision was to grant the consents sought, but without conditions.² This decision subsequently gave rise to six appeals (two of which are closely linked) being lodged with the Environment Court. A separate hearing on conditions followed, with decisions being released some 13 months after the primary decision. TPL lodged an appeal to some of the conditions of consent.

All the submitters interviewed were critical of this two step process. In particular, they said that the conditions form part of the mitigation package on which consents could be granted, and this had to be a key component of the decision. They also noted that this process added substantially to the time involved in decision making. Some submitters expressed frustration that they could not speak to conditions at the original hearing, as they had originally prepared evidence on this basis.

Members of the hearing panel had a different perspective. They considered that right from the start of the process there was a significant possibility that the applications would be declined, particularly as some were for non-complying activities. Given this, they believed the most expedient way to proceed was to first decide whether the applications would be granted or not. Panel members consequently faced considerable opposition at the later conditions hearing from submitters who contested the primary decision.

The approach of the MDC once the hearing started was also criticised. Unusually, no officer reports were appended to the s42A staff report, and this led to an unsuccessful attempt by TPL to prevent two council staff and two peer reviewers presenting evidence to the panel. Also there were no MDC consents staff present at the conditions hearing. Instead the council predominantly relied on a detailed written memorandum from the s42A reporting officer (who was present at the conditions hearing) that was supplied to the panel prior to the hearing. This memorandum outlined matters of concern about draft conditions proposed by TPL.

In the course of undertaking this review a series of key learnings emerged that have useful application for consent authorities generally regarding the processing of large scale consent applications. These include:

Pre-hearing

• Consent authorities should encourage applicants to supply draft consent applications. This has the advantage that council staff have the opportunity to review and discuss the applications prior to lodgement, and to make sure that as far as possible they are complete when lodged. It also enables working relationships to be developed between an applicant and council staff.
• The matter of whether complex applications should be notified prior to s92(2) RMA “peer review” reports being received is contentious. Both sides of the argument have merit, and both have some support in case law.
• Pre-hearing meetings should be utilised more widely, as they are a potentially valuable means of determining process and identifying the key issues under contention.

Hearing Procedures

• Where there is very strong public interest in a local proposal, consent authorities could consider appointing hearing panels entirely from outside of the local district. While this may appear to delegate important functions away from the community, it means that the commissioners will not be compromised in the local community if a decision is made that attracts strong public opposition.
• As a matter of good practice, officer s42A reports should append all relevant technical information on which the author of the report has relied, or which might be helpful to the hearing panel. This removes any doubt that those technical experts can be called as witnesses should that be sought by the panel.
• In establishing hearing panels consent authorities should explicitly consider the breadth and depth of the issues to be considered and ensure that the mix of skills and experience corresponds to the complexity of the issues raised.
• Commissioners need to ensure that all potential conflicts of interest are declared prior to a hearing commencing.
• For long and complex hearings the rapid provision of transcripts can be very helpful for parties that cannot attend a hearing full time.
• Hearing panels need to explicitly consider the “rules” of conduct for a hearing and to outline these very clearly at the start of the proceedings. If they change for any reason, all parties to the hearing need to be advised accordingly, preferably in writing.
• If evidence is pre-circulated it may well be unnecessary for much of that evidence to then be read to the hearing panel.
• If additional information is sought from an applicant on a particular topic, or further briefs of evidence are given, care needs to be taken to ensure natural justice is met by allowing other parties to provide comment on the additional material provided.
• Substantive decisions on the merits of specific resource consent applications should include conditions if consent is granted, particularly as these form an essential part of the mitigation package associated with the applications.

The RMA

In addition to the learnings identified above, the review also highlighted some areas of potential legislative improvement that could warrant further consideration by MfE. These include:

• The five working day period for consent authorities to return incomplete applications under s88(3) of the RMA is much too short for complex, multi-disciplinary applications such as those for the Wairau hydro scheme. Although this period can be doubled to ten working days under the provisions of s37 of the Act, this is still considered too short for applications of this nature.
• Reassess the powers afforded council hearing panels. This could include, for instance, the ability to require experts to caucus to come to points of agreement, reducing the presentation of repetitive evidence and perhaps allowing some cross-examination.

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