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Part C - Improving consent decision making

Improving consent decision making at the local authority level

Background

76. Approvals for projects are gained under the RMA via resource consent applications where activities are not permitted by the Act or district or regional plans. Designations are an alternative approvals process. A designation is a provision in a district plan for a public work or project. Only a Minister, a local authority or a network utility operator approved as a requiring authority by the Minister for the Environment can give notice of a requirement for a designation.

77. Both resource consents and designations are processed through a number of stages including preparation of appropriate information, consent authorities requesting further information, making a decision on notification and issuing a decision, and (if notified) receiving public submissions, in some cases holding a pre-hearing meeting and a public hearing.

78. At the local authority level, the process of hearing tends to be adversarial where cases are 'party controlled' rather than consent authority controlled. That is, the parties define the dispute, shape the issues and the evidence that is to be determined, and then each party has the opportunity to present his or her side of the argument. After conducting a 'trial,' the decision-maker, acting as an impartial, but 'passive' arbiter (except on questions of law), then makes a decision. There are few (if any) truly inquisitorial processes in the sense that the local authority is "actively involved in determining the facts of the case." However, the Act does provide for informality and flexibility in procedure, particularly in terms of case management powers which may make for a more non-adversarial approach to hearings.

What is the problem?

79. In a minority of cases, there is inconsistent and unsound decision making at approvals hearings. These cases however tend to be for critical projects. There are perceptions by applicants and the general public of bias in decision making. There is belief that the decision making process is easily captured by vexatious litigants or abused by trade competitors, and that this is creating unnecessary delay.

80. The Act allows informal and flexible procedures which provide scope for a less adversarial approach. However there are few truly inquisitorial processes at local authority level. Local authorities vary in the use of their powers - perhaps with a wish to avoid unnecessary formality (as directed by the Act), or to reduce the risk of judicial review of their actions, or due to a lack of knowledge about the extent of their powers.

81. The lack of a consistently robust first hearing at the local authority level has precluded a more streamlined approach to appeals in the Environment Court. To reduce duplication and delays local authorities should be given direction to use more inquisitorial processes. This will give greater consideration of issues from the beginning of the process.

82. The 2003 Amendment to the RMA addressed the majority of concerns with approvals processing outside of hearings, although some problems remain, including:

  • ambiguity around the role of local authorities and applicants in consulting with persons affected by projects
  • unreasonable requests from consent authorities on applicants for further information and the continued potential to delay projects.

What is the outcome sought?

83. Ministers are interested in addressing concerns about the quality of consent hearings, making the local authority process less adversarial and reducing the number of appeals. It is also sought to address some problems with consent processing that can contribute to delays, and clarify areas in the mechanics of consent processing where uncertainty exists.

What is proposed?

84. The following is proposed to improve consent processing and hearings at the consent authority level (first hearing):

(a) Clarify that consent authority's role in consent processing is to encourage applicants to consult with all affected parties (which will include Māori if they are an affected party), and confirm that there is no specific requirement on local authorities (as consent authorities) to consult with affected persons per se - their obligation is notification of affected persons.

(b) Reduce the delays caused by further information requests on consent applications, by allowing an applicant to refuse to provide information with full knowledge that the application may be rejected by the consent authority because of insufficient information.

(c) Allow submissions to be neutral (ie. not just in support or opposition) as the current status is too constraining and it will enable submitters (such as government departments) to present information that may not otherwise have been presented if a position of support or opposition was required from the submitter.

(d) Make greater use of the pre-hearing stage for consent applications and provide clarification about the role of the pre-hearing process.

(e) The role of consent authorities will be clarified as inquisitorial bodies, with enhanced powers to direct the hearing process. Rather than a passive role of enabling parties to direct the hearing and evidence processes, etc (which occurs in an adversarial setting), the consent authority will take a more active and direct role in conducting the hearing, evidence heard, etc (an inquisitorial approach). The use of these powers will be governed by Regulation, to ensure they are employed in a manner appropriate to the scale and significance of the matters heard. The objectives will include sufficient testing of evidence to avoid duplication of processes in the Environment Court.

(f) Provide assurance about the skills and knowledge of those hearing consent applications through training and accreditation requirements. This will occur through a transitional requirement that chairpersons of hearings panels shall be 'accredited' ['Accreditation' will follow passing of a suitable training course approved by the Minister for the Environment.] (within 12 months of legislation commencing), followed by a requirement that the majority of the hearings panel be 'accredited' (within 24 months of legislation commencing). In the longer term, following monitoring of the effectiveness of 'accreditation', there could be opportunities to extend the requirement to all members of the hearings panel.

85. Although the above is aimed at resource consent hearings, the new empowering provisions are appropriate for hearings on plans too, as outlined later in this paper. Mandatory accreditation would not apply to hearings on plans. Consideration of submissions and decision making on plans are the primary realm of local democracy and it is therefore inappropriate to require such measures.

What are the risks, costs and benefits?

86. Increasing the robustness of the hearing may lead to increased costs for all parties and increase local authorities' exposure to judicial review. Further, the New Zealand Law Society has expressed concerns that more formal hearing powers being given to the consent authority will unnecessarily complicate the first hearing process. However, the proposals will provide clarification of existing roles and empowering a hearings panel with the tools above in a way that corresponds with the scale and significance of the hearing.

87. The implementation and maintenance of a mandatory training and accreditation requirement for hearings panels will require support and funding. Mandatory accreditation for members of hearings bodies could adversely impact on the diversity of people willing to put themselves forward for election, especially to smaller local authorities.

 

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Last updated: 6 May 2008