Use of commissioners

Abstract

Commissioners are delegated for carrying out statutory decision making duties on a council's behalf. This means that it is vital that commissioners make sound decisions without any conflicts of interest to avoid opening 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 guidance note aims to provide best practice guidance to assist local authorities in appointing skilled commissioners and developing clear use of commissioner policy.

This guidance note provides:

Introduction into the role of a commissioner;
Overview of the use of independent commissioners and councillor commissioners; and
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 and the guidance note on alternative dispute resolution.

Guidance note

What is a commissioner?
What can a commissioner make decisions on?
Guidance on the use of independent commissioners
Good practice in the use of independent commissioners
Additional points for councils who regularly use independent commissioners
Use of councillors as commissioners
How many commissioners should be used?
The skills required for a commissioner
The 'making good decisions' RMA decision maker training scheme

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 independent commissioners, who are appointed from outside the elected representatives or staff of a council, or internal commissioners who are appointed from within a council.

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).

What can a commissioner make decisions on?

Section 34A of the Resource Management Act 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 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 (such as who to service an application on, pursuant to section 94 for example), plan changes or variations;
Making decisions on plan changes and on submissions to plan changes (other than declaring a plan change operative);
Reviewing resource consent conditions; and
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 where an independent commissioner may be used.

The decision to use councillors 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 councillor 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 councillors to delegate decision making powers and functions to independent commissioners.

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:

The council, or an individual councillor 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))
Determination of objections are made under section 357 relating to local authority charges (see Pearse v Canterbury Regional Council C193/00)
When matters are outside the technical knowledge or experience of elected representatives or the council's own staff
When 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).
For combined or joint hearings under section 102 of the Act where a neutral chair person or adviser is considered desirable.

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:

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 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 application and plan changes have yet to be appointed.

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 states clearly 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 (PDF 86KB)).
Councils should have a list of suitable persons from which the 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 commissioner(s) employed should match the nature, scale and technical complexity of the issues on which a decision is being made.
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.
Where independent commissioners 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 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.
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 which demonstrates the style desired.
Ensure that all material which a commissioner will need to make a decision 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 separate room from that in which hearing is to be held should be made available for the use commissioners. Such a room avoids unnecessary distractions for the commissioner, and removes the ability of a party to try and approach or influence the commissioner after the hearing has concluded.
Check with the commissioner as to whether they would prefer a site visit before or after the hearing, and whether they would like staff to assist in pointing out the relevant features / issues on the site (note that some councils ensure that the person who accompanies the commissioner is not the same person who wrote the planning report to eliminate possible perceptions that the council officer may take the opportunity to influence the commissioner into favouring their recommendations).

Additional points for councils who regularly use independent commissioners

Where a council has many hearings which require the use of an independent commissioner over the course of a year, that council should ensure that a pool of commissioners is used, and the people appointed to hearings are 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 the employment of commissioners outside of the register to cover circumstances where none of the registered individuals are available, or a particular body of knowledge and experience is required which is not available from those on the register.

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 amongst 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/or experience commensurate to their role as an internal commissioner (see section on the skills required of a commissioner). Note that while some councils undertake this training themselves, a voluntary decision-makers training programme 'Making Good Decisions' will be operating after the 2004 local government elections which is designed to ensure those on hearings panels have these skills;
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)).
In circumstances where councillors or other elected members are regularly called upon to act as internal commissioners, those people need to be made fully aware of the potential workload involved and be available when needed.
Any appointment of internal commissioners and delegation of functions made under Section 34A 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.
Where possible, a separate room from that used for the hearing should be made available for the internal commissioners to deliberate.

How many commissioners should be used?

There are no legal or statutory requirements as to how many commissioners should be used to make decisions. Guidance from principles contained in case law, common practice, and overseas examples do, however, have some common facets.

The number of commissioners that are used 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 the use of commissioners should reflect this principle.

Single issue decisions of low complexity will generally require the use of only one commissioner.
Complex decisions, for example on applications dealing with technical arguments on many different issues, may require the use of 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, whilst the other(s) consider the more detailed technical evidence according to their knowledge and experience. There should be sufficient knowledge and expertise in the panel to ensure full understanding of the relevant evidence and information presented.
Applications and plan changes which have large numbers of submissions may warrant the use of more than one commissioner if the issues covered by submitters are varied and require a range and depth of technical knowledge which no one commission can be expected to have.

Some councils use an odd number of commissioners for use in hearings to avoid 'stalemate' situations. In cases where an even number of commissioners is used, councils may set guidelines as to which commissioner's view will prevail or have a casting vote (usually this will be that of the Chairperson or principal commissioner).

The skills required for a commissioner

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

These core skills should include:

A good knowledge of the Resource Management Act, 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) that needs to 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 (resource management law, planning, surveying, engineering, ecology, or science for example);
Understanding of Maori language, tikanga, history and cultural values (such as in cases where Maori heritage, taonga, or ancestral relationships could be affected). On occasions an appreciation of potential conflicting or competing interests between local hapu or iwi may also be required.
An understanding of other cultures, in cases where issues raised in relation to those cultures have been raised.

Where a commissioner is expected to chair a hearing, or sit alone, additional skills will also be required 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 a commissioner will not have, or does not want, an adviser drawn from council staff it is important that the commissioner is familiar with both the content and structure of those planning documents, and can interpret them accurately.

Many of these skills are to be covered in a training under the professional development scheme for RMA decision makers (see below).

The 'making good decisions' RMA decision maker training scheme

The Ministry for the Environment and Local Government New Zealand jointly conduct a training and assessment scheme for the councillors and independent commissioners that hear and make decisions on notified applications for resource consents, plan changes, plan reviews and designations. The scheme aims to ensure decision-makers have the skills they need to perform their crucial hearing and decision-making roles effectively.

The training scheme is designed to cover:

Preparing a decision
Statutory requirements in regard to RMA decision making
Tikanga Maori
Decision maker and officer roles
Evidence and advocacy
Dealing with the media
Testing evidence
Conducting a fair hearing.

More information on the Making Good Decisions Programme can be found on www.rma.govt.nz, including a list of certificate holders.

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 (PDF 84KB)

Internal commissioners are appointed at the start of each three-year council term. Training is available to both internal and independent appointees and includes education about the Resource Management Act and the decision making processes, functions and duties contained in it, as well as more general training on the conduct of hearings. Auckland City Council also operate 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 set out very clearly in their Delegations Register the functions and powers that are to be delegated to hearings commissioners.

Use of Commissioners: Christchurch City Council (PDF 96KB)

Only one independent commissioner is usually appointed, though for more complex applications a panel may be chosen. The Christchurch City Council has established procedures for the appointment of commissioners and is in the process of updating and formalising these. Procedures cover such things as when a commissioner may be appointed, and the processes used for appointing commissioners for different types of application or decision. Standardised templates are used to ensure consistency in reports discussing commissioner appointments.

Use of Commissioners: Palmerston North City Council (PDF 87KB)

The Palmerston North City Council has a well documented and thorough policy framework for the use and appointment of commissioners The decision as to 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. Generally independent commissioners are employed to sit alone and not as part of a panel. A report to 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 which they may be used can be found in:

Section 34A(1): Delegation of powers and functions to employees and other persons
Section 102: Joint hearings by two or more consent authorities.

Other references to refer to when looking at 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

Westfield (New Zealand) Limited v North Shore CC [2005] NZRMA 337 (SC) - deals with the sufficiency of information required for a consent authority to be "satisfied" under s94(2)(a) that adverse effects are minor. Some material of probative value is insufficient for a consent authority to determine whether an application should be notified. The information must be sufficiently comprehensive to enable the consent authority to consider the matters on an informed basis.

Wakatu Inc v Tasman DC CIV-2007-442-20 [2008] NZRMA187 (HC) - whether a consent authority needs to delegate a decision in respect of its own application where it is aware other parties are interested in the resource.

Kapiti Environment Action Inc v Kapiti Coast DC W085/07 - s34A(1) precludes the delegation of the "approval" of a proposed policy statement or plan under Schedule 1, but does not preclude the delegation of the approval under s29(4), a decision on a private plan change.

Nga 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.

A J Barton V Wellington Regional Council W81/2003 This case related to the costs charged in relation to an resource consent application to the Wellington Regional Council to allow the use of a stopbank as a roadway for milk tanker access. In relation to the use of commissioners, the Environment Court was critical of the Regional Council using a Maori commissioner in making a decision on the consent application when there were no Maori issues and the planning report 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 Limited, Westfield (New Zealand) Ltd. and North Shore City Council CA30/04: A successful appeal in the Court of Appeal against a judicial review decision in the High Court (see Northcote Mainstreet Inc. V North Shore City Council CIV 404-5392). The High Court case related to a decision by North Shore City Council commissioners to grant a resource consent for a discount shopping centre, and in particular the decision not to notify the consent.

The High Court had found the hearings commissioners had not sufficiently informed themselves of the potential adverse effects on other shopping centres before deciding not to notify the application and 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 them. The decision not to notify was declared invalid and was set aside.

This Court of Appeal decision overturns 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 commissioner's 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.

Please note: This case may be subject to further appeal to the Supreme Court.

Pearse v Canterbury Regional Council C193/99: An appeal to the Environment Court relating 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 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', but 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.

Related guidance notes

The following guidance notes are related:

Relevant publications

Keeping it fair: a guide to the conduct of hearings under the Resource Management Act 1991
Published by Ministry for the Environment - July 2001
Outlines various issues associated with hearings and discusses order of proceedings, speaking rights and techniques for asking questions and listening to answers.

Current challenges in practice

Historically there has been little guidance provided on the use of commissioners, and therefore practice has varied markedly throughout New Zealand. There are a number of emerging issues in the use of commissioners which have yet to worked through:

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 be representative of the community or have local knowledge in all cases. 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 also get around concerns that local elected members are not involved in decision-making it is not practical or prudent in all circumstances however (such as when only one commissioner can be justified, or when it is inappropriate to have councilor representation due to a corporate conflict of interest).

Format and content of decisions

There is no common, legally tested format or layout for decisions made by commissioners with some commissioners issuing formal court-format style decisions, and others a basic, very brief decision. This disparity in style can cause an issue where the decision format and content of the commissioner does not meet council expectations, or provides insufficient detail or robustness to enable a council to defend the decision which has been made when it is challenged. Decisions need to cover sufficient detail to conform to what is expected under the Resource Management Act. Some councils get around this issue by specifying what they expect to see in the decision and providing examples of previous decisions.

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 there 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/or what proportion of the costs presents a challenge. If the council has the 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 is varied, but 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 cost. 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 note on administering resource consents charges and setting charges for the processing and monitoring of resource consents under the RMA).

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).
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 and Gina Sweetman.

This guidance note was prepared in October 2004

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