The purpose of a pre-hearing meeting is to clarify or facilitate resolution of any matter or issue associated with an application for resource consent (s99(2)(b)).
A council may hold a pre-hearing meeting at the request of the applicant or a submitter, or on its own initiative. The following may be invited or required by council to attend the meeting:
- The applicant
- Some or all of those persons who have made a submission; or
- Any other persons considered appropriate.
The applicant's consent is required before any other party can be required to attend a meeting (s99(3)). It is good practice to think broadly and to involve all parties who may have an interest in the matter.
When and why should a pre-hearing meeting be held?
Pre-hearing meetings can be held at any time before a hearing. It is good practice to discuss the potential for a pre-hearing meeting and its process with the applicant, and obtain approval in principle to proceed if appropriate, before the submission period closes.
Pre-hearing meetings can assist in clarifying issues, drafting conditions, personalising the parties involved, and enhancing communication after the meeting. Involving the applicant and submitters in the decision-making process also ensures they 'own' the result, more so than if the decision was made by someone else.
The informal nature of pre-hearing meetings can also allow parties to be more open and creative in finding mutually acceptable solutions. This is especially important where the council, applicant and interested parties need an ongoing relationship. Even when a hearing is subsequently required, pre-hearing meetings can help clarify issues, enabling the hearing to be more focused and less adversarial.
Be realistic about expectations and outcomes associated with pre-hearing meetings. They may not always resolve issues and may even extend the process when parties are not willing to resolve issues.
Can the eventual decision-maker on the application be present at the pre-hearing meeting?
A member, delegate, or officer of a council who decides for the council on the application may be present and participate at the pre-hearing meeting subject to two conditions:
- the parties attending the meeting agree to this
- the council is satisfied that the person should not be disqualified from the meeting.
Pre-hearing meetings generally work best when run by an experienced facilitator who is independent of the process. This brings a sense of objectiveness to the proceedings and should give all the parties confidence their concerns or issues are heard.
How do I coordinate a pre-hearing meeting?
The following list provides some general good practice tips for inviting parties to attend a pre-hearing meeting.
- The council officer should have already discussed the pre-hearing process with the applicants and obtained their approval in principle.
- The council officer should have provided information on pre-hearing meetings to the applicant and the submitters with the acknowledgement of submissions letter.
- All parties should be contacted to see if they are interested in participating. It may be useful to include on the submission form a question about their willingness to participate in a pre-hearing meeting.
- The interested parties should be informed of what dates, times and venue would be appropriate, and asked if they have any special requirements.
- If iwi are involved, check for any required protocols.
- If a pre-hearing meeting is to be held, the council should provide all parties with written confirmation of its date, time and venue, who will attend, how the meeting will be conducted and a draft agenda detailing the purpose of the meeting. Ask parties to confirm their attendance and allow them to suggest agenda items.
- The council officer should phone the parties a few days before the meeting as a reminder.
- The person responsible for processing the consent application should not chair the pre-hearing meeting. Chairing could create conflicts of interest and may affect the processor's ability to make objective recommendations in the final report.
- At the end of the pre-hearing meeting, make sure the facilitator informs every one of the process from here.
Failure to attend a pre-hearing meeting
If a person required, as opposed to 'invited', to attend the meeting fails to attend, and does not provide a reasonable excuse, the council may decline to process that person's application or consider their submission (s99(8)). The affected person may not appeal against this decision under s120, but may object under s357A against the decision to the council (ss99(9) and (10)).
Record of outcomes from a pre-hearing meeting
Once a pre-hearing meeting has been held, the chairperson prepares a report setting out the issues agreed at the meeting and those that remain outstanding (s99(5)(b)). The chairperson may also set out the nature of the evidence that the parties are to call, the order of procedure, and a proposed timetable for the hearing (s99(5)(c)). The report must be distributed to all parties that attended the pre-hearing meeting and received by all parties at least five working days before the hearing begins (s99(6)). The report can be sent out with the officer's report before the hearing. The council must have regard to the report in making its decision on the application (s99(7)).
Mediation can help parties identify common ground and define, narrow and resolve issues. The RMA provides for mediation for applicants and persons who have made submissions to a resource consent application (s99A(1)).
A council may refer the matter to mediation either at the request of an applicant or submitter or at the council's initiative, but only with the consent of all the parties. Parties cannot be made to participate in mediation and this is only appropriate where there is a willingness to do so.
The mediation must be conducted by a person who has delegated authority from the council to mediate, or by an appointed mediator if it was the council that made the application for consent (s99A(3)). The person conducting the mediation must report the outcome to the council (s99A(4)).
The RMA is silent on whether a hearings panel member can be involved in the mediation process. Engaging in preliminary discussions could undermine a hearings panel member's ability to determine the case solely based on the evidence presented as part of the hearing process. Therefore councils tend to appoint an independent person to chair pre-hearing or mediation meetings.
Mediation can have the benefits of reducing the hearing time and/or negate the need for a hearing and lessen the chance of subsequent appeals. But mediation can also lead to delays in the process. Councils should provide advice to parties entering into mediation about its purpose, limitations, and how any outcomes will be used in the decision-making process. It needs to be made clear to parties entering mediation that there is little point in mediation if they are not prepared to do so with an open mind, and are unwilling to modify their position in any way.