Hearings

Statutory requirements for hearings

It is not always necessary that publicly or limited notified applications proceed through a formal hearing process. A hearing is only required in one of the following situations:

the council considers it necessary
the applicant requests a hearing
a submitter wishes to be heard.

Note that the applicant may still want a hearing (where there are no submissions) where the Council seeks to impose conditions which the applicant is not prepared to accept.

When should a hearing be held?

A hearing should be held for a notified or limited notified application unless:

no submissions are received on the application, or
no submitters wish to be heard in relation to their submission.

There is no longer a deadline that hearings must be started by. Instead, publicly notified hearings must be completed within 75 working days from the close of submissions and limited notified hearings must be completed within 45 working days from the close of submissions. This is to provide greater certainty about the closing dates for hearings and when the decision will be issued. Refer to” "A guide to the six-month process for notified resource consent applications") on the Ministry’s website for more information on the timeframes for publicly and limited notified applications.

Informing the parties that a hearing is to be held

The applicant and submitters who stated their wish to be heard must be given notice of the start date and time, and place of the hearing, at least 10 working days before the hearing starts (s101(3)). Any council-developed pamphlets or guidance for people attending hearings should be included with the letter advising people of the hearing.

As outlined above, the applicant is required to provide their evidence at least 10 working days before the start of the hearing and submitters must provide any expert evidence that they are calling at least five working days before hearing. Given that these timeframes are quite tight, it is best practice to advise all parties of the hearing date as soon as possible to enable them to prepare their evidence early in the process.

Pre-provision of evidence

Section 103B now makes it mandatory that the council’s evidence, the applicant’s evidence and any expert evidence called by submitters, is circulated prior to the commencement of a hearing. Section 103B(7) overrides sections 41B and 42A (3)-(5).

Subsections 103B(5) and (6) require the consent authority to make the documents available at its office, and to give written or electronic notice to all the parties that this is the case. Best practice is to also make evidence available electronically on the consent authority’s website.

The deadlines for the pre-circulation of evidence are as follows:

Information to be circulated	Due date for circulation
The council officer’s s42A report and any briefs of expert evidence	15 working days before hearing
The applicant’s evidence, including expert evidence	10 working days before hearing
Submitters who intend to call expert witnesses must make the written evidence of those experts available	5 working days before hearing

The potential benefits of providing briefs of evidence before a hearing include:

reducing the length and cost of hearings by focusing on matters remaining in contention and conflicting opinions, thereby narrowing the scope of evidence presented
assisting the hearings committee and other parties to better prepare for the hearing
enabling the reporting officer to consider the evidence before the hearing and to seek further opinion if necessary.
avoiding late and/or surprise changes to applicant’s proposals or to the content of submissions being introduced at hearings
giving all parties time to go through information before the hearing.

Because all evidence will now be pre-circulated, commissioners and hearing panels will be able to read this in advance of the hearing and establish where there is still contention between the council, applicant and submitters. This allows commissioners and hearing panels to focus the hearing on those matters remaining in contention.

There are tools available to commissioners and hearing panels in section 41C to help direct hearing procedures to make these more efficient and focused on the outstanding areas of contention. This includes powers to:

take parts of evidence as read
direct that evidence be presented within certain time limits
limit presentations to matters in dispute.

This allows the time spent in the hearing to be reduced and focussed on the important issues, without compromising natural justice. The provision of written evidence before the hearing helps commissioners use these tools to best effect.

Site visit

All decision-makers should undertake a site visit before the decision is made, and preferably before the hearing. A site visit at an early stage helps understand the context of the application, the nature of the surrounding environment, and any issues raised in submissions. A longer, more complex hearing may require another site visit during the course of the hearing to focus on matters that may have arisen.

The hearing panel /commissioner(s) should visit the site alone or with a council officer who is not the reporting officer. If this is not possible, for example due to staff resourcing constraints, then the reporting officer present cannot express any views and opinions to the committee.

Hearings protocol

Hearings are to be held in public and a procedure needs to be established that is appropriate and fair in the circumstances. Exceptions to holding a public hearing can be made to protect sensitive information (s42).

The way in which the hearing is to be run should be explained by the chairperson at the beginning of the hearing. Matters that might be referred to include:

directing the order of business
introducing parties to the hearing (including submitters)
who may speak and at what time
directing the evidence and submissions to be recorded or taken as read, or limited to matters in dispute
directing the applicant and/or submitters to present within a certain time limit
that evidence is not given on oath
there is no cross-examination
general respect for tikanga Māori
the availability or otherwise of equipment such as video, overhead projector, whiteboard etc.
potential timeframe for a decision, and appeal rights.

The order of business before or during a hearing should be directed to promote the efficiency and effectiveness of the hearing. Decisions about directing or limiting evidence, and taking submissions as read, would generally be guided by: any pre-hearing report or mediation; the scale and significance of the application; the issues involved; and consideration of the pre-circulated evidence. While it is helpful for an applicant to amend their application at the hearing to reduce potential effects and address matters raised in submissions or in the officers report, additional or new evidence should not be introduced as other parties would not have had the opportunity, or more importantly time, to consider it.

The officer’s report should note that the council/commissioners will not necessarily adopt the officer’s recommendations.

The normal order of the procedure of a hearing is as follows:

introduction by the chairperson
applicant presents the application and supporting evidence
submitters in support speak to their submissions
submitters in opposition speak to their submissions
council officer summarises the council report and makes any comments regarding information provided at the hearing
applicant responds
hearing is closed or adjourned for a decision to be made.

In most cases it is appropriate for applicants to present their case before the council staff reports on the application. This will avoid staff misinterpreting the applicant's case, especially if the application has changed as a result of pre-hearing consultation, or of council officer recommendations, or of effects mitigation.

In some situations, it can be advantageous for the council officer to summarise the proposal and recommendations before the applicant speaks. This can raise awareness of the relevant plan provisions and provisions of the RMA (ie, relevant parts of sections 104, 104A-D and 105) which the hearing panel or commissioner(s) are required to consider when deciding upon the application. This is most appropriate where an applicant is not represented by legal counsel or consultant familiar with the RMA. More than one council officer may need to present if an internal specialist advisor (eg, a subdivision engineer) has provided key input to the assessment.

Alternatively, contracted consultants may act on behalf of the council. If they are to present written reports, then these must also be circulated before the hearing in conjunction with the s42A officer's report.

The council/commissioners may also request the applicant to provide further information at the hearing (s41C(3)), or they may commission a report on any matter on which the council requires further information (s41C(4)). If any information is requested or commissioned and received after the start of the hearing, then this information must be provided to the applicant and every person who made a submission and stated a wish to be heard. It must also be made available (at the council office) to any person who submitted and did not wish to be heard (s41C(5B)(b)).

Usually an officer’s report is taken as read. It is however useful for the officer(s) to comment on any matters that were raised during the hearing, and be willing to amend their conclusions should the evidence justify this.

The applicant’s right of reply should be confined to addressing points that have been raised during the hearing, and particularly amendments that may be made to satisfy matters raised during submissions. It should not re-litigate the applicant’s case.

Virtual hearings under the RMA

Hosting meetings virtually has become more common. Alert Level restrictions, introduced in response to COVID-19, impacted on councils’ abilities to hold face to face public hearings. Some councils are starting to use ‘remote access facilities’ (such as Zoom) to undertake RMA hearings virtually.

The Ministry for the Environment (MfE) has released interim guidance to assist councils to use remote access facilities to host virtual RMA hearings. You can find the guidance on the MfE website here.

For many resource management practitioners and councils, holding virtual meetings, hearings, and mediations, has been necessary to enable planning and consenting processes to continue during alert level restrictions. For a council to host a hearing virtually, principles of natural justice apply to ensure all procedures are open, fair and transparent in all circumstances.

Section 39(1) of the RMA requires councils to hold hearings in public and conduct them fairly and appropriately in the circumstances.

Section 39AA of the RMA was inserted in response to COVID-19 and enables hearings to be conducted using remote access facilities. Remote access facilities are defined in section 39AA(1) as an audio link, audio-visual link and any other similar facility. Councils, or a person given authority to conduct a hearing (the authority), can direct, on its own initiative or at the request of any person with a right to be heard, that a hearing or part of a hearing be conducted using remote access facilities. A council or authority can do this provided that it considers that it is appropriate and fair to do so and it is satisfied that remote access facilities are available.

With the recent increase in the use of remote access facilities some advantages of hosting a council hearing virtually include:

the ability for an authority to be adaptable in times of uncertainty
efficiencies for time and cost for those who would normally travel to partake in a hearing
more transparency as they increase opportunities for the public to be informed and recorded proceedings enable the hearing to be viewed by parties at any time
the environmental benefits of less travel and consumption for all participants

Councils who conduct hearings must recognise tikanga Māori where appropriate and this applies to any hearings held virtually. As tikanga is dynamic, tangata whenua views may differ across iwi and hapū as to what virtual tikanga procedures are appropriate.

Discussions with tangata whenua about virtual hearings should be done early, possibly before other submitters. These discussions should include kōrero on how to support them to ensure tikanga can be appropriately incorporated into hearing procedures.

The Ministry would like to hear feedback from councils, practitioners and others involved in running hearings remotely, about how useful the guidance is and whether there are additional areas that could be included. Please send any feedback or questions to RMQueries@mfe.govt.nz.

The Resource Management Law Association hosted a webinar in June 2020, discussing council hearings in a virtual world. A panel of seasoned hearing commissioners (Dr Phil Mitchell and Paul Cooney) along with experienced Hearings Facilitator Sue Bulfied-Johnston share their experiences and lessons learnt from conducting hearings remotely, particularly during the COVID-19 lockdown. A recording of the webinar can be found here.

Joint hearings

Some proposals may require resource consents from more than one council, such as a territorial and regional council. In such cases, s102(1) of the RMA promotes a joint hearing. Joint hearings help to:

allow all the relevant information to be presented together
maintain consistency in decision-making between district and regional councils
reduce costs and avoid time delays for applicants, submitters and councils

Where a joint hearing is to be held, the regional council for the area concerned will often take the lead role in setting up the hearing, and establish the procedure to be followed. The responsibilities involved in the process need to be decided between the councils at an early stage of the process. The most effective way to achieve this is for officers from each of the councils to meet and allocate responsibilities. Decisions made at this meeting need to be well documented, and a copy of this record kept by each of the councils.

Who has speaking rights at a hearing?

Only the following people have the right to speak at a hearing:

the applicant and anyone presenting evidence on their behalf
submitters who have requested to be heard and anyone presenting evidence on their behalf
any other experts presenting evidence on behalf of the council who had a report circulated before the hearing
any committee member or commissioner(s).

Any submitter who did not request to be heard or anyone simply present to view proceedings at the hearing does not have the right to speak. The council officer does not have an automatic right to speak but in most cases is invited to do so. Allowing the council officer to speak is considered good practice.

Striking out submissions (s41D)

Before, during or after a hearing, the council/commissioners can direct that all or part of a submission be struck out if it considers that the submission (or part of it):

is frivolous or vexatious
discloses no reasonable or relevant case
would otherwise be an abuse of the hearing process if the submission was allowed to be taken further
it contains offensive language
is only supported by material that purports to be independent expert evidence on a matter, if that material is prepared by a person who is either not independent or does not have the sufficient specialised knowledge or skill to give expert evidence on the matter.

When exercising this power the council must record its reasons for the direction (s41D(2)(b)). A person whose submission is struck out has a right of objection to the council under s357 (s41D(3)).

In practice, this power should only be exercised in a clear situation where appropriate reasons can be given. Good practice tips in considering whether to strike out a submission include:

whether the submitter has acted in a frivolous and vexatious manner in the past (for example, to the extent of having costs awarded against them by the Environment Court)
whether the submitter may simply be misinformed or inexperienced, or unaware of the limitations on the matters able to be considered by the council
how much speaking time the submitter has requested in terms of the overall hearing schedule
whether there may be irrelevant parts of the submission that could be struck out, preserving more relevant aspects.
if a person presents material in support of a submission and purports that it is independent expert evidence, that person should be able to demonstrate why this is the case. Expertise and skill may be demonstrated by detailing the author’s experience, qualifications or membership of professional organisations. Independence may be demonstrated by codes of ethics, declaring any actual or potential conflicts of interest, or articulating the extent of their involvement in the proposal or related proposals. Not all submissions have to be supported by independent expert evidence in order to be considered valid by decision-makers. Submitters can still comment on any aspect of a proposal that they wish.
A decision-maker may choose not to strike out a submission containing offensive language, depending on the context.

The council needs to bear in mind the RMA's inclusive approach to public participation, and to exercise such power with great care.

If a submission is struck out, no Environment Court appeal against the consent decision is available to that submitter, however there is a right to object to the decision to it being struck out under s357.

Submissions by trade competitors on trade competition grounds (in accordance with s308B) could be struck-out under these provisions. More ideally, submissions by trade competitors which relate to trade competition or the effects of trade competition should not be accepted by a council.

Councillors and commissioners

Most councils tend to appoint councillors with delegated authority to make decisions on notified resource consent applications. All members of hearing panels must be accredited under the ‘Making Good Decisions’ programme unless there are exceptional circumstances. The Making Good Decisions programme provides training in the council’s functions, responsibilities and powers under the RMA.

Where a conflict of interest for the council may exist (eg, where the council is both the applicant and the consent authority), independent commissioners should hear the application as a matter of course.

An applicant or person who makes a submission on an application may request (in writing) that the application be heard by one or more independent commissioner(s). This request must be made no later than five working days after the closing date of submissions (s100A). Submitters are liable for some of the costs of this request (s36) and should be informed of this.