Use of commissioners

Abstract

Commissioners are delegated responsibility for carrying out statutory decision-making duties on a council’s behalf. It is vital that commissioners make sound decisions without any conflicts of interest that could open the path for challenges. This guidance note aims to provide best practice guidance to assist councils in appointing commissioners and developing a clear policy for using commissioners as part of the resource consent, plan making, plan change and notice of requirement processes.

This guidance note provides an:

introduction into the role of a commissioner
overview of the use of independent commissioners and councillor commissioners
outline of the skills required of commissioners.

This guidance note has been prepared alongside the guidance notes Setting charges for processing and monitoring consents under the RMA and Administering resource consents charges. It should also be read alongside the resource consent guidance in the Consent processing resource (particularly the Making a decision on the application and the Alternative dispute resolution guidance notes).

Guidance note

What is a commissioner?
What decisions can a commissioner make?
Guidance on the use of independent commissioners
Good practice in the use of independent commissioners
Appointing independent commissioners: standing orders, codes of conduct and delegated authority
Fulfilling the accreditation requirements of the Act
Additional points for councils who regularly use independent commissioners
Use of councillors as internal commissioners
How many commissioners should be used?
The skills a commissioner requires
The 'Making Good Decisions ' training, assessment and certification programme for RMA decision-makers
The costs of commissioners

What is a commissioner?

A commissioner is a person appointed by a council to carry out statutory decision-making duties on the council’s behalf, or to serve as an independent adviser to the council in the making of those statutory decisions.

Commissioners may be generally classified as:

internal commissioners – who are appointed from within a council
independent commissioners – who are not a member of the council i.e. appointed from outside the elected members or staff of a council.

Section 100A of the RMA makes a distinction between elected members and non-elected members, setting out that elected members of the council can not be independent commissioners.

Section 100A(4) requires councils to delegate its functions, duties and powers to hear and decide on an application to one or more hearing commissioners who are not members of the council when requested by an applicant, submitter or both. The intent is that this would be an exclusive delegation to independent commissioners only (ie, not a mixed panel also containing elected members or staff of council).

Internal commissioners may either be appointed to act alone, or with other commissioners or elected members of the council (councillors and community board members).

A council can appoint anyone to be an independent commissioner, but typically those appointed will have relevant skills and experience for the issue being decided (such as in planning, law, surveying, engineering or science). They may also be former councillors who are appointed for their chairing or hearing experience and expertise.

What decisions can a commissioner make?

Section 34A of the Resource Management Act 1991 (RMA) specifies the functions and powers that can be delegated to council employees or other persons such as commissioners. This section leaves the potential powers of commissioners open, referring instead to those powers and functions not able to be delegated.

Commissioners can not:

approve a proposed policy statement or plan; or
delegate any powers or functions delegated to them.

These powers are given to a council only.

Commissioners can be delegated powers in respect of:

making decisions on proposed policy statements, proposed plans, variations or plan changes (other than approval)
making decisions on resource consent applications and recommendations on notices of requirement
making decisions on the notification or non-notification of resource consents
making decisions in regard to the service of an application
making decisions on plan changes or variations and on submissions to plan changes (other than declaring a plan change operative)
reviewing resource consent conditions
providing advice on technical or procedural matters in assisting councils to make decisions on particular applications.

Commissioners are able to have any of the powers delegated to them that are delegated to council staff. Refer to the list of delegations that can be held by council staff.

Guidance on the use of independent commissioners

Circumstances when an independent commissioner must be used

Section 100A allows an applicant, and/or a submitter to a notified resource consent application, to request that the council appoints at least one independent commissioner to hear and decide on the application. This also applies to notified notices of requirement for a designation and heritage orders, but excludes applications for restricted coastal activities.

The request for an independent commissioner must be made in writing anytime up to five working days after submissions close.

If such a request is received, then the council must delegate its functions, powers and duties to hear and decide the application to one or more independent commissioners. The council has the discretion to decide on the number of commissioners appointed. This will largely depend on the complexity of the application and the required expertise.

Councils also have the discretion to decide on who they employ as an independent commissioner, provided they meet the accreditation requirements of s39A of the RMA and are not a member (elected representative or staff) of the council. The intent of s100A is that the council delegation would be exclusive to independent commissioners.

Parties who request a commissioner have no right of objection to another party’s request for a commissioner or to the council’s choice of commissioner.

There are particular requirements for the costs of independent commissioners.

Other circumstances where an independent commissioner may be used

The decision to use internal commissioners or independent commissioners (or a combination) will often involve the following considerations:

perceived or actual conflicts of interest or perceptions of bias
the need for specialist expertise not available within a council in cases where issues surrounding an application are complex or of a highly technical nature
whether the application has substantive implications for the policy of a council such that elected representative input may be considered necessary or desirable
the likely expense of using independent commissioners compared to the scale of the issue (particularly where an independent commissioner would have to be brought in from outside the district or region)
the availability of independent commissioners at the time a hearing is required
the willingness of elected members to delegate decision-making powers and functions to independent commissioners, when not already requested by the applicant and/or submitter(s) under s100A.

While consideration must be given to all these factors, it is generally accepted to be good practice to use independent commissioners in place of internal commissioners when:

the council, or an individual elected representative, may otherwise be perceived to have an actual or perceived conflict of interest (refer to Conflicts of Interest – A Guide to the Local Authorities (Members Interests Act) 1968 and Pecuniary Conflicts of Interest))
determining objections under s357 relating to council charges (see Pearse v Canterbury Regional Council C193/00)
matters are outside the technical knowledge or experience of elected members or the council’s own staff
one or more committee members may have, or may be perceived to have, a closed mind on the proposal (such as when publicly stating opinions on the merits of a proposal in the media or at public meetings before it is heard)
combined or joint hearings under s102 where a neutral chairperson or adviser is considered desirable.

Some councils also employ independent commissioners to make decisions on applications that are politically contentious. This removes the political pressures that may otherwise be placed on councillors at key times (such as in the lead-up to election).

Independent commissioners may also be employed to:

assist council in carrying out their duties during times when councillors are not available due to conflicting meeting times, or heavy workloads (such as during annual plan hearings)
to assist councils following local body elections, when there has been a considerable turnover of councillors, and hearing committees are perhaps lacking in skills and expertise, or cannot otherwise field a sufficient proportion of accredited hearing panel members
to cover lengthy hearings which councillors would be unable to attend on a continuous basis due to business, financial, family or other limitations
hear applications, plan changes or carry out other functions of councillors immediately after local authority elections when committees who may normally hear resource consent applications and plan changes have yet to be appointed.

Use of Māori commissioners
There may be circumstances when Māori commissioners should be appointed such as for proposals to make use of natural resources including water, water bodies and geothermal, or which affect cultural and heritage assets, or are otherwise based on Maori values.

Click here for a detailed list of matters that should be considered.

Good practice in the use of independent commissioners

For the sake of transparency and consistency, councils should have a clear policy or set of guidelines on the use of independent commissioners which clearly states what circumstances are considered to warrant the use of a commissioner, what powers are to be delegated, and what steps are to be followed in the appointment of a commissioner. Such a policy or set of guidelines may form part of a council’s delegations manual or policy, or may constitute a separate policy (see for example the Palmerston North delegations to commissioners).
Councils should have a list of suitable persons from which they can appoint commissioners as back-up for occasions when commissioners who may otherwise have been appointed are not available.
The skills and experience of independent commissioners employed should match the nature, scale and technical complexity of the issues on which a decision is being made.
The Ministry for the Environment maintains a list of independent commissioners and councillors (including their fields of expertise and areas of practice) who have achieved certification under the Making Good Decisions programme.
A check of the past experience of candidates for independent commissioner work can be used to ensure that they have the capability to undertake the task for which they are being considered.
Ensure that the accreditation requirements of the RMA are taken into account.
Where independent commissioner(s) are appointed for a hearing, the appointing council should confirm the appointment in writing. Such documentation should specify the powers being delegated, whether the independent commissioner(s) will be sitting alone or as part or a panel (and if part of a panel, their role on it) and details of the anticipated time, date and location of the hearing. See the section on Standing orders, codes of conduct and securing delegated authority for more information.
Where a particular commissioner is being used by a council for the first time, the council may outline the style and detail to be contained in the written decision report, and may supplement any such outline with an example that demonstrates the style desired.
Ensure that all material which a commissioner will need to make a decision on, is given to the commissioner as far ahead of the hearing (or the task they are to perform) as is possible. Such information should include a copy of the application, the council officer’s report, and the plan(s) under which a decision on the application will be made. It is also helpful to provide an indexed copy of any submissions made to the application, and a clear map of the site to which the application relates.
Where possible, a room separate from where the hearing is to be held, should be made available to commissioners for use in breaks during the hearing. This allows deliberation, avoids unnecessary distractions for the commissioner(s), and removes the ability of a party to try and approach or influence the commissioner(s) during or after the hearing.
Check with the commissioner(s) if a site visit before or after the hearing is preferred, and if they want staff to assist them in pointing out the relevant features/issues on the site. (Note: some councils ensure that the person accompanying the commissioner is not the reporting officer; this eliminates any possible perception that the reporting officer may take the opportunity to influence the commissioner into favouring the council’s recommendations).

Appointing independent commissioners: standing orders, codes of conduct and delegated authority

Elected members or independents appointed as commissioners are not subject to standing orders or other formal committee procedures (because they are not a committee of the council). In any event, the hearing should be conducted without undue formality. From the point of view of applicants or submitters, there should be very little difference between hearings conducted by commissioners and those held by councillors.

Once the council has settled on the appointment of a commissioner, panel of commissioners or committee, it must ensure that sufficient delegations are given to these people to undertake the hearing and make decisions or recommendations. Appointment and delegation usually occur at the same time, but they are separate steps, and should both be documented.

Councils should ensure that the appointment and delegation of commissioners clearly sets out:

the identity of the commissioners
the identity of the chair, or whether the commissioners may elect a chair
that the commissioners have the power, under s34A of the RMA, to both hear and make decisions on the relevant application and/or submissions or, where relevant, to hear and make recommendations
whether the commissioners can continue to hear and make a decision if one or more of the commissioners is unable to continue with the hearing
where necessary, that commissioners may make decisions in relation to preliminary consent processes, such as extensions of time limits, decisions on pre-hearing meetings, etc (in many cases these will not be relevant, as these steps will occur before the appointment of the commissioners)
that the commissioners have been delegated the powers to exercise any additional power or function under ss41 to 42A of the RMA
whether the commissioners are expected to deliberate in public or in private.

In delegating its procedural powers at the hearing, the council may wish to consider whether decisions on procedure should be delegated to the chair alone, rather than collectively to the panel of commissioners. Especially where an experienced chair has been appointed, it may be administratively convenient to leave decisions on hearing procedure entirely to the chair; this will also enable the other panel members to focus on the merits of the application.

Independent commissioners are not technically operating under a councils code of conduct. However, they should bear in mind that they represent the public face of the council in undertaking its RMA function. Commissioners must also be aware that they may only act in accordance with the terms of their delegation. Councils should ensure they clearly set out any procedural expectations for hearings conducted by commissioners at the time the commissioners are appointed.

Fulfilling the accreditation requirements of the RMA

There are accreditation requirements that apply when a council gives authority (including under s34A) to one person or a group of persons to conduct a hearing on:

an application for a resource consent that is notified
a notice of requirement given under s168 or s189
a request under clause 21(1) of Schedule 1 for a change to be made to a plan (private plan change).

These accreditation requirements are set out in s39B. In the circumstances referred to above, the council must ensure that:

a person is accredited (if it gives authority to one person)
the chairperson is accredited (if it gives authority to a group of persons that has a chairperson)
over half of all the persons are accredited (if it wants to give authority to a group of persons, whether or not the group has a chairperson).

The Minister has approved the successful completion of the Making Good Decisions programme, as a qualification for accreditation. The Minister announced his decision by way of a notice in the New Zealand Gazette in accordance with s39A. All alternate, temporary, current, retired and former judges of the Environment Court, High Court, Court of Appeal and Supreme Court are to be treated as having completed the programme.

Councils will need to ensure that:

the people they wish to appoint as sole commissioners or chairpersons hold a current certificate under the Making Good Decisions programme
independent commissioners they wish to appoint as panel members hold a current certificate
panels onto which they wish to appoint such people have the necessary majority of members who hold a current certificate.

Additional points for councils who regularly use independent commissioners

Where a council has many hearings that require the use of an independent commissioner over the course of a year, a pool of commissioners should be used; and the people appointed to hearings should be rotated to avoid perceptions of favouritism, or compromised commissioner independence.
Any pool or register of commissioners should have sufficient variety of knowledge and experience to cover the typical range of hearing topics which a council may be expected to encounter during the course of a year.
Any policy or guidelines used to guide a council in the employment of commissioners should allow for circumstances where none of the registered individuals are available, or a particular body of knowledge and experience is required but not available from those on the register.

The Ministry maintains a list of independent commissioners and others (including their fields of expertise and areas of practice) who have achieved certification under the Making Good Decisions programme.

Use of councillors as internal commissioners

A council may appoint elected members or community board members, from within that council or from another council, to be internal commissioners. Appointing councillors as internal commissioners may be useful where a resource consent application requires a joint hearing (where councils combine to hear an application), or where a consent hearing is likely to span a local authority election and continuity of service on the hearing panel is required.

However, if an independent commissioner is requested under section 100A, the council must appoint at least one commissioner who is not a member (councillor or staff) of the council. Refer to the section Circumstances when an independent commissioner must be used above.

Best practice in appointing councillors as internal commissioners:

Councillors will usually decide who among them will be appointed to internal commissioner roles. In the interests of good practice they should be guided by the following principles (whether or not they form part of a council policy or set of guidelines):

elected members or councillors should have training and experience as chairs or hearing panel members or both, and be able to demonstrate Fulfilling the accreditation requirements of the RMA by holding a current certificate under the Making Good Decisions programme
councillors nominated to be appointed as internal commissioners should have no actual or perceived conflict of interest (see Conflicts of Interest – A Guide to the Local Authorities (Members Interests Act) 1968 and Pecuniary Conflicts of Interest).
where councillors or other elected members are regularly called upon to act as internal commissioners, they need to be made fully aware of the potential workload involved and be available as required.
any appointment of internal commissioners and delegation of functions made under s34A of the RMA should be formally recorded as a resolution of the council. This appointment may be recorded on documentation related to a hearing (such as correspondence and order papers) to ensure that no confusion exists in regard to the authority of those persons to act as commissioners.

How many commissioners should be used?

There are no legal or statutory requirements as to how many commissioners should make decisions (other than the requirement to appoint at least one independent commissioner if requested under section 100A). Principles contained in case law, common practice, and overseas examples do, however, provide some guidance.

The number of commissioners should match the scale of the decision that needs to be made, its complexity, and the experience and expertise of the commissioners. Any policies and guidelines drafted to guide councils in using commissioners should reflect this principle.

Single-issue decisions of low complexity will generally require only one commissioner.
Complex decisions, for example applications dealing with technical arguments on many different issues, may require two or more commissioners. One commissioner will often be employed to take into account the overall considerations of the application and guide the conduct of proceedings; the other(s) may consider the more detailed technical evidence according to their knowledge and experience. There should be sufficient expertise in the panel to ensure full understanding of the relevant evidence and information presented.
Applications and plan changes with large numbers of submissions may warrant the use of more than one commissioner: the issues covered by submitters may be varied and require a range and depth of technical knowledge which no single commissioner can be expected to have.

Some councils use an odd number of commissioners in hearings to avoid ‘stalemate’ situations. With an even number of commissioners, councils may want to identify which commissioner's view will prevail or have a casting vote (usually the chairperson or principal commissioner) in the appointment/delegation of powers to commissioners. For most hearings, no more than three commissioners should be needed.

The skills a commissioner requires

All commissioners should have a set of core competencies and skills that enable them to understand the application or issue before them, conduct hearings in an appropriate manner, and make sound decisions.

Core competencies include:

correctly identifying the nature of issues arising during a hearing in terms of the RMA and relevant planning documents
recognising common decision-making biases and applying cognitive strategies to minimise their impact
demonstrating impartiality and integrity
systematically and appropriately test and question the evidence and decisions of others
demonstrating commitment to appropriately and fairly assessing and weighing evidence
making balanced contributions during deliberation and obtaining and elucidating relevant views from other panel members to increase the total knowledge available
using appropriate decision-making tools
formulating a reasoned decision independently of others.

Commissioners should have the following expertise:

a good knowledge of the RMA, and the decision-making and hearings procedures contained within it
knowledge of functions and processes under the Local Government Act and the Local Government Official Information and Meetings Act 1987
the ability to listen effectively, distilling the key arguments and facts from the information presented
an awareness and understanding of the principles of natural justice and a sense of fair play
the ability to maintain objective neutrality (not jump to conclusions or predetermine an outcome)
a general understanding of the principles of the Treaty of Waitangi, their relevance in legislation, and whether and how they may be applicable to the decision(s) to be made.

Other skills or qualities may be required to meet the circumstances where general knowledge and skills alone will not suffice. These other qualities or skills could include:

recognised specialist qualifications, expertise and/or experience in a particular field (such as resource management law, planning, surveying, engineering, ecology, architecture, urban design or science)
understanding of Māori language, tikanga, history and cultural values (such as in cases where Māori heritage, tāonga, or ancestral relationships could be affected). On occasion an appreciation of potential conflicting or competing interests between local hapū or iwi may also be required.
an understanding of other cultures, in cases where issues in relation to those cultures have been raised.

A commissioner who chairs a hearing, or sits alone, can be expected to have the following additional competencies:

jointly considering and applying RMA, relevant legislation and planning documents to a wide variety of complex contexts
demonstrating awareness of the powers of a panel and chair and being able to apply these powers flexibly, ethically, fairly and appropriately
chairing hearings confidently, dealing appropriately with complex and unexpected issues, plus effectively leading and managing other panel members
effectively leading and managing processes leading up to the hearing
effectively leading and managing the post-hearing processes
demonstrating a commitment to managing and developing the performance of panel members and continuous self-improvement.

Chairs with this set of competencies can be expected to:

conduct the hearing in a way that enables all parties who wish to be heard a fair hearing without time wastage or undue coverage of irrelevant or inappropriate issues and evidence
manage conflict and unacceptable behaviours associated with unreasonable challenges
communicate succinctly and accurately (orally and in written form), explaining the reasoning for any decisions made, including decisions regarding the relevance (or otherwise) of evidence being presented
fully understand the processes involved in drafting decisions and be able to write decisions without assistance.

Some councils make staff available to assist commissioners in the interpretation of their plans. Where an adviser drawn from council staff is not available – or not wanted – it is important that the commissioner is familiar with both the content and structure of those planning documents, and can interpret them accurately.

All the skills referred to above are covered by the Making Good Decisions programme.

The Making Good Decisions training, assessment and certification programme for RMA decision-makers

The Making Good Decisions programme helps councillors, community board members, and independent commissioners make better decisions under the RMA. It provides RMA decision-makers with the skills they need to run fair and effective resource consent, plan change and designation hearings, and to make informed decisions.

The programme was developed by the Ministry for the Environment and Local Government New Zealand, in consultation with stakeholders and professional bodies, including the New Zealand Planning Institute.

It is delivered by the University of Auckland’s Centre for Continuing Education, which employs an experienced team of presenters, facilitators and tutors. For more information on the structure and content of the programme, go to the University of Auckland’s Centre for Continuing Education website.

Successful participants are issued with a certificate that is valid for three years, confirming they have successfully achieved the programme’s competencies and are competent decision-makers. Since the launch of the programme in February 2005, well over 1200 decision-makers have achieved certification.

There is a re-certification process for those who wish to have their certificates recertified on expiry. Such second-stage certificates are valid for five years. There are two options for re-certification:

Training for those who want to continue as hearings panel members
Training for those who are experienced chairs, or are aspiring chairs.

Successful completion of the programme is recognised as a qualification for Fulfilling the accreditation requirements of the RMA.

Certification brings with it both opportunities and obligations. Certificate holders are obliged to attend update seminars, and have their understanding re-assessed, should they wish to have their certificates reissued on expiry. See Making Good Decisions for more information on the impact of the programme and for lists of certificate holders.

The costs of commissioners

Where a council employs independent commissioners, determining who is responsible for the costs depends on the circumstances of the commissioner’s appointment.

Where a council decides to use independent commissioner(s), then the costs are passed onto the applicant in the standard way under s36.
However if independent commissioners are requested under s100A then the following applies (s36(1)):

If the applicant makes the request (regardless of whether a submitter also makes a request) the applicant is responsible for all the costs of the hearing and decision.
If submitter(s) make the request (and the applicant does not), then the submitter(s) who have made the request and the applicant are responsible for portions of the costs of the hearing and decision. The applicant must pay for the costs of the hearing and decision as if the request for independent commissioners had not been made (ie, the council was hearing and deciding the application in the normal way). The submitter(s) pays for any additional costs consequent of the appointment of the independent commissioner. These additional costs are split in equal shares if there is more than one submitter who makes the request for a commissioner.

All charges are to be set as fixed charges under section 36(1).
Councils can not take a deposit or security to ensure the costs of independent commissioners requested by submitters are met. Councils need to recover costs from submitters through their usual debt recovery means. Therefore it is important for councils to sort out their financial systems and make their charging regime clear to submitters before confirming the use of independent commissioners.

Councils also have the discretion to waive additional fees and changes where independent commissioners are requested. If they choose not to waive fees or charges, and the hearing has already gone ahead with independent commissioners, then the submitters should be treated like any other debtor.

Best practice examples

The following examples illustrate best practice in particular aspects of the use of commissioners, as described in the guidance note.

Note: These best practice examples have not been updated to reflect changes to the RMA as a result of RMAA09.

Use of commissioners: Auckland City Council
Internal commissioners are appointed at the start of each three-year council term. Auckland City Council operates a ‘duty commissioner‘ system whereby a commissioner is used by the council two or more days per week to make decisions on process matters (such as resource consent notification) and minor applications. Auckland City Council sets out very clearly in their Delegations Register the functions and powers that are to be delegated to hearings commissioners. A number of principles and policies govern the exercise of these delegations.

Use of commissioners: Christchurch City Council
Christchurch City Council generally only appoints one independent commissioner for resource consent hearings, however if an application is complex a panel may be chosen. Procedures for the appointment of commissioners have been established. Standardised templates ensure consistency in reports discussing commissioner appointments.

Use of commissioners: Palmerston North City Council
Palmerston North City Council has a well-documented and thorough policy framework for the use and appointment of commissioners. Whether an independent commissioner will be appointed is guided by well-defined criteria in the council’s delegation manual. This document also sets out the procedures to be followed when appointing an independent commissioner. Independent commissioners are selected from a register of people who have commissioner functions and authority delegated to them. This register contains people covering a broad mix of skills and experience. Independent commissioners are generally employed to sit alone and not as part of a panel. A report to the Planning and Environment Committee is required when a commissioner who is not on the register is being recommended for appointment.

RMA provisions

Key references to commissioners and the roles in which they may be used can be found in:

section 34A(1): Delegation of powers and functions to employees and other persons
section 36: Administrative charges
section 39A: Accreditation
section 39B: Persons who may be given hearing authority
section 39C: Effect of lack of accreditation
section 100A: Hearing by commissioner if requested by applicant or submitter
section 102: Joint hearings by two or more consent authorities.

Other useful references relating to the roles of commissioners include:

section 39 of the Local Government Act 2002: Governance Principles
sections 76–82 of the Local Government Act 2002: Planning and Decision Making.
sections 45–54 of the Local Government Official Information and Meetings Act 1987: Local Authority Meetings
sections 4, 4B, 4D, 5, 6, and 7, of the Commissions of Inquiry Act 1908.

Case law

Kapiti Environmental Action Incorporated v Kapiti Coast District Council (Decision W085/07): The Environment Court discussed whether the council was able to delegate its function of approving a privately initiated plan change. The Court held that, although the council was specifically prohibited from delegating the approval of plans (including a change) under s34A of the RMA, this did not extend to approval of a private plan change under clause 29(4) of the First Schedule to the RMA. The council was entitled to delegate this function to the hearing commissioners.

Barefoot v Auckland City Council (A160/06): In this case the appellant expressed concern that elected members from Auckland City Council, who had made a decision on a resource consent application by Mobil Oil NZ Ltd, had previously attended a presentation by the company. In its decision, the Environment Court held:

“We are not suggesting that actual bias was present in this case, but public perceptions of bias can only decrease confidence in the Council’s decisions, and increase the prospects of appeals to this Court. Further, for resource consent applications made after 10 August 2005 (which this was not), the Court is required by s290A to have regard to the Council’s decision, and the weight that the Court attaches to such decisions could well be affected where the Council’s impartiality can be attacked in this way.”

Just One Life Ltd v Queenstown Lakes District Council CA72/03: The Court of Appeal found that it is not possible for a council to delegate its powers in relation to a resource consent application to a company.

A J Barton v Wellington Regional Council W81/2003: This case addressed the costs charged in relation to a resource consent application to the Wellington Regional Council, allowing the use of a stopbank as a roadway for milk tanker access. In regard to the use of commissioners, the Environment Court was critical of the regional council using a Māori commissioner in making a decision on the consent application when there were no Māori issues. The planning report had identified the real issue as relating to engineering considerations. The Environment Court was also critical of the use of three commissioners because “it was council policy to do so”. The Court considered one commissioner with engineering experience could have more than adequately dealt with the application.

McGuire v Hastings District Council PC43/2000, [2002] 2 NZLR 577: The Privy Court endorsed the council’s approach, which involved appointing appropriate expertise to the hearings committee, where that committee was asked to consider matters relating to tikanga Māori. This approach was seen as helping to ensure rigour about specific Māori issues and that due regard was given to Part 2 of the RMA.

Westfield NZ Ltd v Upper Hutt City Council W055/00, 5 NZED 823: A case in which the Court found that, in regard to the use of councillors as commissioners for combined hearings, it was not necessary that a resolution specifically states that councillors were appointed as commissioners. Reference to s34(3) in the resolution by the council conferring the delegation, clearly imported into the resolution the concept that those councillors are in fact to be commissioners.

JPearse v Canterbury Regional Council C193/99: An appeal to the Environment Court related to charges imposed under s36 for a number of resource consent applications to disturb a stopbank and river bed, and extract water for irrigation. Initial objections under s357 relating to the charges were heard by the Canterbury Regional Council and were dismissed. The applicant then appealed to the Environment Court on the grounds that costs were excessive and the objection process was not handled objectively. The Environment Court dismissed the appeal finding the costs charged were “actual and... certainly reasonable”. It noted that while the council was entitled to have its own officers decide any objections under s357 in a case where its own costs were involved, it may not be a particularly wise decision to do so.

Ngā Puawaitanga (Meremere) Ltd v Waikato District Council; Franklin District Council; Environment Waikato; Attorney General High Court Number M167/98 3 NZED 832. This case involved a request from the respondent to strike out an application from the plaintiff for an injunction in the High Court. The plaintiff alleged bias in proposed resource consent hearings conducted by commissioners, two of whom were councillors of the first respondent. However the Environment Court found that the symptoms of bias outlined by the plaintiff could not, as a matter of law, amount to bias or presumptive bias on the part of the commissioners.

Related guidance notes

The following guidance notes are related:

Relevant publications

Survey of Practitioners: Making Good Decisions Programme
Published by the Ministry for the Environment –
This report presents the findings of an independent survey commissioned by the Ministry for the Environment to examine the impact of participation in the Making Good Decisions programme on the performance of hearing commissioners and hearing committees.

The Decision-maker
Published by the Ministry of the Environment
The Decision-maker is the Ministry for the Environment’s newsletter for certified RMA decision-makers. Published three times a year, the newsletter is designed to provide guidance on issues decision-makers face. It also informs readers about future training opportunities and shares the perspectives of others actively involved in making decisions.

Appearing at a Resource Consent Hearing
Published by the Ministry for the Environment – Updated December 2009
A guide for people who have made a submission on a resource consent and want to speak at a hearing.

Appearing at a Council Plan or Plan Change Hearing
Published by the Ministry for the Environment – Updated December 2009
A guide for people who have made a submission and want to speak at a hearing.

Keeping it fair: a guide to the conduct of hearings under the Resource Management Act 1991
Published by the Ministry for the Environment – July 2001
This is a comprehensive guide which provides information on good practice for the conduct of hearings under the RMA. It outlines the various organisational and other issues associated with hearings. It also highlights issues where particular care is needed, for example, those relating to natural justice and conflicts of interest. The guide also discusses order of proceedings, speaking rights and techniques for asking questions and listening to answers.

The TrustPower Wairau River Hydro Power Proposal: A review of the processing of the resource consent applications
Published by the Ministry for the Environment – October 2009
This is a review of the processing of resource consent applications by TrustPower Limited (TPL) to construct and operate a new hydro power scheme on the Wairau River, Marlborough, commenced by the Ministry for the Environment.

The report provides advice on, amongst other things, appointing hearing panels; and on the role and benefits of caucusing issues. It advises that it is important to: make all technical documents relied on by officers in making decisions available; hold pre-hearing meetings; and circulate evidence. The review concludes that 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.

Current challenges in practice

Historically little guidance has been provided on the use of commissioners, and therefore practice varies markedly.

Balancing local and technical knowledge in decision-making

There is a challenge in achieving a balance between getting appropriate technical expertise in making decisions on complex matters and providing for decision-making by elected members with knowledge of the local community. Experts may have a better knowledge and understanding of some issues, but may not have relevant local knowledge. They may also not have chairing or hearing experience. Some councils get around this problem by having mixed panels of commissioners, with the council being represented by one or more councillors serving alongside an independent commissioner. While this solution may ensure that local elected members are involved in decision-making it is neither practical nor prudent in all circumstances (such as when only one commissioner can be justified, or when councillor representation would create a corporate conflict of interest).

Format and content of decisions

Section 113 of the RMA sets out the required contents of any written decision on resource consent applications. Decisions can now cross refer to the assessment of environmental effects prepared by the applicant and to reports prepared under section 41C, 42A and 92 in whole or in part to reduce duplication and the length of reports. There is no legal requirement for decisions to adopt a particular structure, tone or appearance; consequently there is considerable variety in written decisions. Some commissioners issue formal court-format style decisions, while others prepare a basic, very brief decision. This variation in style and format may cause problems. A particular style or format used by a commissioner may not meet council expectations, or may provide insufficient detail or robustness to enable a council to defend the decision when it is challenged. Certainly, decisions need to cover sufficient detail to conform to what is expected under s113 the RMA. Councils can specify what they expect to see in the decision and provide examples of previous decisions. If councils want to specify the report style it is important for this to be explained to commissioners before the hearing.

The guidance note on Making a decision on an application sets out the principles underlying a well-written decision. It also includes templates for decision reports, decisions and covering letters, and a selection of actual decisions that generally accord with those principles.

Balancing of costs and experience in the employment of independent commissioners

The use of independent commissioners can be expensive, especially when a panel of commissioners is required to consider complex applications and evidence. Careful consideration needs to be given to the number of commissioners that may be required, and the skill and experience each person brings to the job. While some commissioners may charge less than others for their services, they may not have the skill or experience required for the application or issue under consideration.

Cost recovery: who pays when a commissioner is used?

The issue of who pays for commissioners and what proportion of the costs, presents a challenge. If the council has a conflict of interest, should the applicant pay, or should that cost be borne by ratepayers through the council? Current practice amongst councils varies. Many councils take the approach that if an independent commissioner is required because of some issue related to decision-making on the council’s part (conflicts of interest, or lack of in-house expertise) then the council pays the additional cost (above that of a councillor hearing).

There has been variable practice where the applicant has requested the use of a commissioner. If the applicant requests an independent commissioner under section 100A, the applicant pays the cost of the hearing and decision. This can be a fixed charge (s36(1)).

If a submitter(s) requests an independent commissioner under s100A, the submitter(s) is also liable for costs on a pro rata basis. See Costs of commissioners above.

As Section 100A has implications for councils charging schedules, it is important that councils make the costs of independent commissioners clear to both applicants and submitters.
Refer to Setting charges for the processing and monitoring of resource consents under the RMA for further guidance on costs.

Managing dual roles

It is important that commissioners who sometimes act as reporting officers for council perform either one role or the other for a particular council. Regardless of the reality of any bias, there may be an issue of perception of bias that comes into play when individuals are fulfilling both roles, either concurrently or otherwise. Whether it’s unreasonable or not, parties might conclude that a commissioner is less than ‘independent’, if also regularly employed in an ‘officer’ capacity. It is recommended that an individual generally acts in one capacity or another for a council but not both – particularly not at the same time.

Dealing with complaints about commissioners

From time to time, councils will receive complaints about the conduct and professionalism of commissioners. These can occur both before, during or after a hearing. The Ministry for the Environment may also receive complaints about the performance of a certified decision-maker. The Ministry takes a partnership approach to dealing with complaints, referring and following up on any complaints with the council concerned. It is recommended that councils develop standing orders or a policy on how to manage such complaints.

Acknowledgements and editorial comments

The Ministry for the Environment thanks the following people for their contribution to this guidance note:

Alister Aburn (Urban Perspectives)
John Annabell, Peter Frawley and Priscilla Jeffrey (Palmerston North City Council)
John Duthie and Kevin Quensell (Auckland City Council)
John Gibson and Catherine Elvidge (Christchurch City Council).
Jean Hodson (Tasman District Council)
Stuart Kinnear (Stuart Kinnear Consulting)
Brian Mairs (Environment Canterbury)
Matthew Trlin (Porirua City Council)
Rob van Voorthuysen (Environmental Management Services, now Van Voorthuysen Environmental Ltd)
Dorothy Wakeling (Wakeling Associates Ltd)
Alan Watson (A R Watson Associates).

This guidance note was prepared by Richard Hills (Ministry for the Environment) with input and assistance from John McSweeney, Gina Sweetman (Sweetman Planning Services Ltd), Mark Leggett, Sarah Myhill and Natasha Tod (Ministry for the Environment).

This guidance note was prepared in October 2004 and revised by Erica Sefton of The Project House Limited and the Ministry for the Environment in March 2009.

Within this page