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13 The First Hearing

13.1 RMA Requirements

Section 39 of the Act specifies a number of procedures relating to the conduct of a hearing of a resource consent application. In essence, when determining an appropriate procedure for a hearing the consent authority is required to avoid unnecessary formality, recognise tikanga Māori as appropriate, not allow any person other than a member of the hearing panel to question a witness (although questions can be put through the chair) and not permit cross examination.

Section 41 of the Act gives a hearing panel some of the powers of a Board of Inquiry.

13.2 What the Hearing Panel Did

13.2.1 Location and Timetabling

The initial hearing to consider the merits of the applications commenced on 12 June 2006 and lasted 70 days. It was held at Vintiner’s Retreat on the outskirts of Blenheim. At the insistence of the hearing panel all the proceedings were recorded, with transcripts available the next day. Hearing days usually commenced at 9.30am and finished between 4.00pm and 4.30pm. The hearing panel sat on a slightly raised platform throughout the first stage of the hearing on the merits of the applications.

Hearing days were not continuous. Rather they proceeded in blocks, with time away being due to the venue and/or commissioners or witnesses being unavailable.

13.2.2 Hearing Procedures

The procedures for the hearing were laid out as follows in the minute of the pre-hearing meeting:

“The order of the hearing will be as follows:

The applicant will open its case and call all of its evidence, with leave reserved to call rebuttal evidence in reply to any new evidence not previously circulated by submitters. However, it is acknowledged that TrustPower will not have had the expert assessment of the parties until shortly before the hearing. Accordingly nothing in this timetable should be seen as an undertaking that TrustPower will not seek leave to produce further evidence in reply.
The other parties will each open its case and call its evidence in the order chosen by them.
Each party shall have a right to make closing submissions and the Applicant shall have the final right of reply.
Time will be allowed at the conclusion of the evidence for the making of final submissions.”

In another section, the commitment was made that “all submitters bound by this minute agree that the time for writing the decision will be extended from 15 days to one calendar month from the conclusion of the hearing”.¹⁵

13.3 Views of Respondents and the Panel

13.3.1 Location and Timetabling

Respondents commented very favourably on the hearing venue and the availability of transcripts overnight.

The transcript was really good – fast turnaround and great service – we got it the next day. It was really helpful for witnesses who could not be there. (DoC)
The venue was great – all the physical aspects were good and there was lots of room. The transcripts were excellent and were good when we could not attend. (Forest and Bird)

These comments were, however, offset against some criticism that ongoing rulings from the hearing panel were not always readily available, so if someone was unable to attend the hearing it was hard to keep up with what was going on. This comment was made particularly by respondents from Fish and Game and Forest and Bird, the latter commenting that “it would have been useful to have heard directions via memos”. However, this was something that the hearing panel members themselves considered they had done. Due to the length of the hearing it is possible that some of these memoranda were overlooked by parties who were not present all the time and who were relying on the transcripts for their information.

Views were mixed as to whether the hearing was run efficiently. Adverse comment was made about short sitting days, and the panel often returning late from breaks. Although evidence was pre-circulated, some of this was read “which made for a long, arguably inefficient hearing” (Fish and Game). Criticism was also made of the blocks of time when the hearing did not proceed as the venue was already booked.¹⁶

In relation to the pre-circulated evidence being read, panel members commented that they wanted the main substance of this evidence recorded on the transcript, as they relied on that in arriving at their decision. They also noted that some pre-circulated evidence was taken as read.

Respondents noted that when they were given a time for a submission or submissions to be heard, that these timeframes were followed quite rigorously by the panel.

13.3.2 Hearing Procedures

One of the stronger criticisms made by respondents was that the rules of the hearing process were not clearly specified, and those that had being laid down were not always followed. A procedural matter that attracted particularly strong comment was the decision made by the panel quite early on that the hearing would be a two stage process - with the first stage focused on whether the consents would be granted or declined, and the second on appropriate consent conditions if the decision reached in the first stage was to grant the consents sought.

Some of the typical comments made about hearing procedures were:

Regarding dealing with the evidence on a topic basis “I think this was ok until the rebuttal of rebuttal of rebuttal occurred – it would have worked if they had stuck to the original format and not had several excursions back to various topics”. (Fish and Game)
It was a user unfriendly process. Examples included undue formality, a lack of respect for participants, an overly legalistic and adversarial process and play it by ear procedures”. (Counsel for Ormond Aquaculture and NZ Clearwater Crayfish)
I could not believe what I was hearing – TPL’s lead counsel would present evidence – then supplementary, rebuttal, further rebuttal and rebuttal of rebuttal – it was back and forward with their lead counsel having the final say. It was very difficult to follow and I do not recall any rules being set regarding supplementary and rebuttal. They seemed to make it up as they went along. (Freshwater Anglers Club)

A number of respondents interviewed also made comments that they regarded the case run by lead counsel for TPL to be very aggressive and/or divisive, and that this led to some antagonism. The panel members, however, had a very different perspective as reflected in the following observations:

“I have never seen such a difficult case more professionally presented. TPL’s lead counsel was very professional, and so was his junior”. (Tony Willy)
Max Barber said that he found TPL’s lead counsel to be very competent and even handed and would not call him aggressive.
Jill Bunting also said she found TPL’s lead counsel to be very competent and “the best she had come across”. She said he had to listen to a good deal of quite rude comment and that he did sometimes get exasperated, but certainly not aggressive.

13.4 Comment

While there were clearly some very good aspects of the hearing process – particularly the venue and the ready availability of transcripts – respondents were critical of the lack of clarity about the rules and procedures for the hearing. All the submitters interviewed had the perception that hearing procedures were changed during the process, and that the lead counsel for TPL had an undue influence over the procedures.

There is perhaps good reason for this. An applicant is (more or less) compelled to be present for an entire hearing. Submitters are not, nor often can they afford to be, represented by legal counsel during lengthy hearings. Indeed, both Forest and Bird and Fish and Game commented that they relied partly on lawyers for DoC to keep them abreast of what was taking place in the hearing.

The hearing panel also took a significant step towards trying to be fair to those parties who could not be present at the hearing all the time, as reflected in the following comments from the panel chair:

“It became very clear once the hearing started that in the absence of cross-examination the community groups and some institutional submitters – such as Forest and Bird – were at a strong disadvantage. For example, a TPL expert would discuss hydrology but community groups did not get chance to comment until some months later, and this was a problem.

We convened a meeting to discuss this. As cross-examination is not allowed we asked TPL if they would agree to us accepting written questions from other parties to better understand their evidence, to which they agreed. The questions had to be asked through the committee. We thought this was fair to other groups that would otherwise be disadvantaged.”

None of the submitters interviewed commented on this process.

The panel members considered that any changes made in procedure were made clear by way of memoranda. Certainly there were a number of these issued during the hearing process. However, because some of the parties were not present, they may not have picked up on the significance of some of these memoranda. This is highlighted in the following comments from Forest and Bird and Fish and Game:

“The ground shifted all the time for this process. The procedures for the hearing were not clear, with all sorts of memoranda going on. The lawyers acting for TPL were not supportive of the process being workable for community groups – Forest and Bird was having to seek input from other lawyers present as to what was going on. We think a panel can set clear rules and be accessible and clear and not overly formal – the public should not need a lawyer. Forest and Bird felt intimidated by the process – it was difficult to remain fully engaged if you were not legally represented and we were alienated from the process, which felt more like an Environment Court hearing. TPL had lots of opportunities which others didn’t.”
“Lots of TPL witnesses gave repeated evidence – it was very hard for us to service – we do not know how it affected the decision. Only TPL were there for the full time. Fish and Game often had no opportunity to comment on questions asked by the committee”

Submitters also commented that the hearing was unduly formal, and that it was neither a normal council hearing process nor one closely akin to an Environment Court hearing. Two such comments were:

The chair said early on that it would run like a de novo Environment Court hearing – e.g. transcripts, presentation of evidence. The committee had a raised dais and it was set up very formally and was such a process. (Forest and Bird)
The panel was guilty of trying to marry the Environment Court process and usual council process. It was not clear what the rules for the hearing were. (DoC)

When interviewed, members of the hearing panel acknowledged that they endeavoured to keep the hearing procedures relatively formal, but that this was a decision that they made for good reasons:

Tony Willy said that the panel was aware of the criticism, and that some of the submitters wanted the hearing to be less formal. But the panel considered that as it was a quasi judicial process they had to run a fair and orderly hearing for the benefit of the people giving evidence.
Max Barber said that he did not agree with the criticism, and that Tony Willy had to be satisfied that the law was met and ran the hearing accordingly.
“When we came back for the conditions hearing - in a smaller venue with limited separation between ourselves, the media, the applicant's team and submitters, it became clear that the more formal situation had worked better. There were a number of angry, emotive and at times intimidating people there and at times it got nasty - towards Tony in particular.” (Jill Bunting)

Some procedures were set down in the minute from the pre-hearing meeting. Much of that minute is quite clear. What is not very clear is what the words “nothing in this timetable should be seen as an undertaking that TrustPower will not seek leave to produce further evidence in reply” actually mean. It appears that the applicant sought to interpret this liberally, and that this was allowed by the hearing panel.

What non-TPL respondents say happened next went like this:

Initially TPL were asked to provide extra information on technical matters by the panel.
TPL then started introducing rebuttal evidence when their experts were criticised.
In response to this other parties sought leave to introduce rebuttal, which TPL then sought to rebut. This continued to the point where submitters generally felt the process got somewhat out of control, with some TPL witnesses providing four or five briefs of evidence.

It should be noted in this context, however, that TPL witnesses were not the only ones that gave multiple briefs. For example, a planner from DoC gave three briefs of evidence. Equally, some individual submitters gave up to three briefs of evidence for a number of different parties who made submissions.

All members of the panel were very much aware that every submitter had to be given the opportunity to speak. Tony Willy commented that he “was probably too generous with the submitters”, but acknowledged that this was necessary in order to run a transparently fair process.

Clearly there are differing views between the panel and some submitters as to how clear the rules of procedure for the hearing were. Members of the hearing panel were adamant that they were trying to seek as much information as possible on which to make their decision, and that any changes in procedure were clearly signaled in memoranda. Some submitters found the process confusing. Somewhere between these disparate views probably lies the truth.

Members of the hearing panel also expressed some considerable exasperation about their lack of powers to run an efficient hearing process. They could not, for instance, compel expert witnesses to try to come to agreed positions on evidence. Equally, individuals could appear several times for different parties saying much the same thing and had to read their evidence each time, non-experts could give evidence on matters on which they had no expertise (canal stability was cited as an example), and submitters could call other non-submitters to give evidence on their behalf. All this added to the length of the hearing.

Tony Willy also said that in his view that council hearings should allow for cross-examination of witnesses, and that appeals to the Environment Court should only be on points of law. He considered that this would greatly reduce the costs of the RMA consent process for major applicants, as the evidence would not have to be heard fully twice.

13.5 Lessons Learnt

There are five key lessons for consent authorities generally associated with the process of hearing complex resource consent applications:

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 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 additional information is sought from an applicant on a particular topic, or further briefs of evidence are given, care has to be taken to ensure natural justice is met by allowing other parties to provide comment on the additional material provided.
Where there is very strong public interest in a local proposal, consideration should be given to 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 if a decision is made that many members of the local community are opposed to. It may also help ensure that there is no perception of any bias among members of the hearing panel.
Similarly, where there is very strong local interest in a major proposal, it may be better for it to be heard and decided by the proposed Environmental Protection Authority (EPA). This has the advantage of distancing the decision makers from strongly held local views.

15 The actual time taken was just over six calendar months.

16 This is almost inevitable for such a long hearing.

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