Advance to content | List of Access Keys |

Within this page

Use of commissioners

Abstract

Commissioners are delegated 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 outlines who is a commissioner and the circumstances when the use of commissioners is considered to be good practice. This note aims to provide best practice guidance to assist local authorities in appointing skilled commissioners and developing a clear policy for using commissioners.

This guidance note provides an:

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 guidance note and the alternative dispute resolution guidance note on alternative dispute resolution.

back to top

Guidance note

What is a commissioner?

A commissioner is a person appointed by a council to carry out statutory decision-making duties on that council’s behalf, or to serve as an independent adviser to the council in the making of those statutory decisions. That person may either be appointed to act alone, or with other commissioners or elected members of the council (councillors and community board members).

Commissioners may be generally classified as:

A local authority can appoint anyone to be a 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.

back to top

What decisions can a commissioner make?

Section 34A of the Resource Management Act (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:

These powers are given to a council only.

Commissioners can be delegated powers in respect of:

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.

back to top

Guidance on the use of independent commissioners

Circumstances where an independent commissioner may be used

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

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

While there is no legal requirement to do so, some councils 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:

back to top

Good practice in the use of independent commissioners

Best practice in 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 local authority). 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 local authority 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:

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 local authority’s code of conduct. However, they should bear in mind that they represent the public face of the local authority in undertaking its RMA function. Commissioners must also be aware that they may only act in accordance with the terms of their delegation; local authorities 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 local authority wants to give authority (including under section 34A) to one person or a group of persons to conduct a hearing on:

These accreditation requirements are set out in section 39B. In the circumstances referred to above, the local authority must ensure that:

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 section 39A. 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, then, that the:

back to top

Additional points for councils who regularly use independent commissioners

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 commissioners

A council with whom an application is lodged may appoint councillors or community board representatives, 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.

Best practice in appointing councillors as 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):

How many commissioners should be used?

There are no legal or statutory requirements as to how many commissioners should make decisions. 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.

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.

back to top

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 that they must be able to:

Commissioners should have the following expertise:

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:

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

Chairs with this set of competencies can be expected to:

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.

back to top

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:

  1. training for those who want to continue as hearings panel members
  2. 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 the Making Good Decisions webpage for more information on the impact of the Programme and for lists of certificate holders.

back to top

Best practice examples

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

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.

back to top

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 39: Accreditation
  • section 39B: Persons who may be given hearing authority
  • section 39C: Effect of lack of accreditation
  • 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.

back to top

Case law

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 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.

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 local authority conferring the delegation, clearly imported into the resolution the concept that those councillors are in fact to be commissioners.

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 Maori. 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.

Just One Life Ltd v Queenstown Lakes District Council Decision CA72/03: The Court of Appeal found that it is not possible for a local authority 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. However, 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.

Discount Brands Ltd v Northcote Mainstreet Ltd, Westfield (New Zealand) Ltd and North Shore City Council CA30/04: This case has been all the way to the Supreme Court. Following the decision of the North Shore City Council to grant a resource consent for a discount shopping centre, the case was referred to the High Court to review the decision, in particular the decision by the commissioners not to notify the consent (see Northcote Mainstreet Inc. v North Shore City Council CIV 404-5392).

The High Court found that the hearings commissioners had not sufficiently informed themselves of the potential adverse effects on other shopping centres before deciding not to notify the application. While they were not obliged to accept the views of Council officers that the analysis was insufficient, it was incumbent on them to have a sound basis for rejecting those views. The decision not to notify was declared invalid.

The Court of Appeal decision (Discount Brands Ltd. V Northcote Mainstreet Limited, Westfield (New Zealand) Ltd. and North Shore City Council CA30/04) then overturned the decision of the High Court. In summing up, the Court of Appeal noted that the “commissioners were not restricted just to the totality of the information in front of them; they were also entitled to draw their own inferences and to employ their own understanding of their communities.” The commissioners had taken the view that “any consequential public and community effects would be no more than minor” and the Court of Appeal did not believe it was appropriate to interfere in that decision by way of judicial review. The Court of Appeal was satisfied that the commissioners’ decision not to notify was a decision that a reasonable consent authority could reach on the basis of the information before the commissioners. The Appeal was allowed.

The case was subsequently appealed to the Supreme Court. The Supreme Court did not agree with the Court of Appeal decision and reversed their judgment. The Supreme Court held that both the decision not to notify the consent and the decision to grant the consent were invalid. The Court decision was unanimous that the Council’s decision not to notify was not made according to law, having been based on information that was not ‘adequate’. The Judges on the case wrote five separate decisions, which include comments on other questions of law relating to the application.

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.”

Pearse v Canterbury Regional Council C193/99: An appeal to the Environment Court related to charges imposed under section 36 for a number of resource consent applications to disturb a stopbank and river bed, and extract water for irrigation. Initial objections under section 357 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 section 357 in a case where its own costs were involved it may not be a particularly wise decision to do so.

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 section 34A 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.

back to top

Related guidance notes

The following guidance notes are related:

back to top

Relevant publications

Survey of Practitioners: Making Good Decisions Programme
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
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
An Everyday Guide to the RMA Series 3.3
A guide for people who have made a submission on a resource consent and want to speak at a hearing. This guide is part of the series “An Everyday Guide to the Resource Management Act”.

Appearing at a Council Plan or Plan Change Hearing
An Everyday Guide to the RMA Series 5.2
A guide for people who have made a submission and want to speak at a hearing. This guide is part of the series “An Everyday Guide to the Resource Management Act”.

Keeping it fair: a guide to the conduct of hearings under the Resource Management Act 1991
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.

back to top

Current challenges in practice

Historically little guidance has been provided on the use of commissioners, and therefore practice has varied markedly throughout New Zealand. Councils will need to work through a number of issues in this regard:

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 representatives 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. However, there is no legal requirement for decisions to adopt a particular structure, tone or appearance; consequently there is considerable variety in written decisions, nationally. 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 section 113 the RMA. Councils can specify what they expect to see in the decision and provide examples of previous decisions, if Council 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 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 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? Conversely, if the applicant requests the use of a commissioner, should that cost be borne by the council or the applicant? 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). If the applicant requests an independent commissioner, and there is no other reason to do so, then the applicant pays the cost as part of the consent processing fees (refer to the guidance notes on administering resource consents charges and setting charges for the processing and monitoring of resource consents under the RMA).

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 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.  

back to top

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 in February 2009.

back to top