The council officer needs to identify whether any further information and/or specialist advice is needed to process the application and assess the environmental effects further.
Specialist advice on applications is commonly obtained from internal council officers such as traffic engineers, structural engineers, landscape architects etc. However, when there is not the internal expertise or resources (including time) available to assess particular environmental effects, a council then needs to consider commissioning external experts.
The purpose of a commissioned report should be to: peer review or assess information supplied by the applicant or to undertake an assessment of certain effects that the applicant has not addressed in their application.
If an application is contentious this is not necessarily a reason to allow the commissioning of a specialist report. If the council is concerned that they need to be seen processing an application in an impartial manner, then possibly they could appoint someone outside the council to act on their behalf. For example, an external s42A reporting officer could be appointed which may provide the required impartiality.
Sections 41C(4) and 92(2) allow councils to commission a report from a specialist when:
- the activity may have a significant adverse environmental effect; and the applicant is notified in writing of the reasons for requesting the report; and
- the applicant agrees to the commissioning of the report.
Section 41C(4) allows for the commissioning of a report at the hearing stage and s92(2) allows for the commissioning of a report at any reasonable time before a hearing or, if no hearing is to be held, before the decision is made.
The applicant has 15 working days to advise the council in writing whether the commissioning of a report under s92(2) is agreed to. The council must continue to process and consider the application under s104 if the applicant does not respond or refuses to give their agreement to the commissioning of a report.
There is no time frame within which the applicant is required to reply with respect to a request for a report at the hearing stage under s41C(4). However, there is a general duty to avoid unreasonable delay.
Helpful tips for involving specialists in the auditing of AEEs or providing specialist advice absent in the AEE:
- Discuss the type of information the specialist, either internal or external, will provide.
- Where external specialist advice is being sought, give the applicant the opportunity to obtain the required information themselves if they want to. If this is not practicable, advise them of the anticipated cost of the specialist advice and potential involvement at a pre-hearing meeting and/or hearing and check that they still wish to go ahead.
- Select an appropriate specialist and ensure they have the skills required to do the job. If it is an external specialist, check that they have no conflict of interest.
- Brief the specialist about what is required of them (particularly if they are external to the council or the application is complicated, large, or unusual), setting out specifically what the objectives are and what their report is expected to include. A specialist should be provided with all the relevant information from the application, the relevant plan(s), copies of submissions and/or written approvals, a defined scope of work etc. The more relevant and complete the information given to them, the more relevant and complete their assessment will be. It is useful to alert the specialist to the relevant objectives, policies and plan rules the application is being assessed against.
- Set clear time frames and cost guidelines or fix a price.
- Ask the specialist to investigate at the outset if any research should be undertaken and get them to gain the council's approval before going ahead with it.
- Clearly specify the report to include any recommended mitigation measures and conditions of consent.
- Advise them if they will likely be required at a hearing and/or pre-hearing meeting.
