 Ever tried to explain a diagram in a council plan showing the relationship between the Resource Management Act and Local Government Act? If so, you will know the relationship between these Acts is more like distant cousins scratching around for things in common than that of close siblings.
It’s not surprising that staff writing either resource or asset management plans within a unitary council (or asset management plans in a district council and resource management plans in a regional council) have the power to trip each other up. Having begun my career in local government on the resource management side of the ledger, I have been caught out by the weight of opposition to draft freshwater rules by asset managers. However, over the past year I’ve been sitting on the other side of the fence, writing infrastructure strategies for several different councils. There’s plenty of potential for tension about plan rules with major implications for the cost-effective delivery of infrastructure services. This tension has the potential to be worked through in infrastructure strategies. A good thing about these strategies is they provide an opportunity to take a systematic look at the provisions in resource management plans. This involves serious consideration of the potential implications for the delivery of transport, stormwater, flood protection, water supply and wastewater services — and identifying the practical options for achieving the required outcomes, as well as the costs of the different options. Upcoming discussions with communities increasingly affected by climate change are another area where a combined approach by resource and asset management planners will be beneficial, to enable us to consider the full range of options available to local government.
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 Introduction
In this article Rob and Jan Fryer, of FuturEcology, provide practical advice on choosing the best plants for riparian margins and on establishing a weed control regime. This is part two of a two part series of articles to be published on this website. Part one discusses the reasons why landowners resist riparian planting and how councils can help to resolve these issues. Click here to access the first article. What types of plants do you recommend being used for riparian planting? Each site is different so a range of factors need to be considered, such as the questions listed here.
We have found people want to plant a "forest". You don’t get that in a five metre wide riparian margin. Diverse plantings are a nice idea but they are not successful in this context. For example, in Murchison, we planted a riparian margin with 5000 plants, of which 3000 were Carex secta. These are short but wide plants. They provide one metre of shade over a small waterway and will fold down in a flood. We included some taller species amongst them to provide aesthetic appeal. It’s very much "horses for courses". In another Murchison project we talked with the Department of Conservation about opportunities to add biodiversity value. The native plant Malecitis flexova is scrubby looking so farmers tend to get rid of it, but it provides great habitat for lizards and fern birds. The benefits need to be highlighted to the landowner, who can then demonstrate to their community what they’re doing to contribute to New Zealand’s environment. A riparian planting can be a great opportunity to increase local biodiversity, for example by including threatened species, and by including plants that are naturally occurring in an area. In Nelson, we refer to the Living Heritage planting guide, and are currently involved in a project to return two vanished plant species in the Maitai catchment — it’s simple to grow them and get them back in there as part of riparian planting. We also plant species which are good for birds where appropriate. Farmers and other landowners can benefit from a conversation about:
Flood flows also need to be factored in, and this includes keeping flax out and having plants that fold down flat. Hoheria augustifolia is a great riparian species. What weed control regime do you recommend for landowners? A rock solid plan and budget for maintenance in the year following planting is vital to the successful establishment of riparian planting. Plant less and look after it better is our motto. There is absolutely no point in committing to planting hundreds or thousands of plants, investing time and money, only to have them swamped by pasture grass in the first spring. Generally on farms, grass is king. Grass is what makes money, so landowners invest in strong grass species and fertilisers to optimise their growth. These vigorous grass species can easily smother riparian plantings. That’s why having a clear methodology for the planting is so important. Here’s what we recommend.
At the very least we recommend allowing for follow up maintenance in the spring and summer of no less than three visits from a competent contractor, timed to prevent domination of grass. The timing of the first visit is critical. This must be done before the first flush of grass in the spring. In many places we find that our native plants appear to grow strongly at two times of the year — spring and autumn — with little growth over summer and winter. This means we need to time our maintenance regime to ensure plants are unchecked by grass and weeds at these growing times. With good maintenance in that first year, follow up maintenance is reduced. However, if there is an existing perennial weed problem (with weeds such as blackberry, old man’s beard, gorse or broom) then the site will require ongoing maintenance. We also note that the farming industry and even councils tend to under-estimate the skills, knowledge and experience needed to complete successful riparian plantings. Although landowners have a close connection with their land and experience in planting various trees and crops, this may not necessarily be helpful with riparian planting. We recommend that landowners:
 Jan and Rob Fryer, FuturEcology Introduction
Politicians are focusing on water quality issues ahead of this year’s election, recognising this is a major concern for New Zealanders. There has been a lot of talk about planting more riparian margins, but very little discussion about the time and cost involved in the ongoing weed control and maintenance of these margins. I asked Rob and Jan Fryer, of FuturEcology, about the reasons why landowners resist riparian planting and how councils can help to resolve these issues. This is part one of a two part series of articles to be published on this website. The second article provides practical advice on choosing the best plants for your site and establishing a weed control regime. Click here to access the second article. Stock exclusion is now becoming a legislative requirement, with staged dates for when it takes effect for different stock types. What are the implications for land owners, both in terms of time and money? Farmers and other landowners benefit from seeing riparian management (including fencing, planting and weed control) as a business expense that can be outsourced if they lack the time to do it themselves. Particularly in the dairy industry, time to do the work is a big factor. Often it’s not a problem to carry out planting in winter, but maintenance is needed in the spring and autumn. This job is likely to drop well down the priority list when calving and milking are underway. It’s really important not to underestimate the work required because fencing off land without maintaining riparian margins is a bad idea — leading to creeks overgrown with blackberry and old man’s beard. Of the landowners you work with, what are their concerns about planted riparian margins? There is resistance. Landowners ask why would I fence off this area and have to do all this weed control, especially when they can point to local examples of weed infestation. It’s a hard sell! One of the biggest issues with stock exclusion or regeneration of riparian margins is the transition of “clean” country to weed corridors. No landowner likes to be a party to this, especially if they have worked hard to keep their property clean of damaging weeds. There could be some shading from exotic weeds along the margins. However, a margin dominated by a small number of exotic weeds will actually reduce biodiversity and do little in terms of filtration of sediments compared to a well-constructed and well maintained riparian planting. Other concerns are around fencing and flooding issues, for rivers and streams that flood frequently. These are quite valid concerns, although they are not insurmountable if the right approach is taken. Forestry and subdivision in headwaters are causing silt build up. In a more natural environment you wouldn’t get that level of silt. This means downstream river beds are getting shallower, and therefore flooding more. To manage this issue, people need advice on the right shrubs to plant and the right fence to use (eg a two wire electric fence). How can councils help to address these concerns? In some districts, councils have assisted through the provision of plants or contributions towards plant costs for riparian plantings. More focus on the numbers of plants that have survived after three years (rather than the number initially planted) would be helpful. This could involve assistance with maintenance in the first year because this is the critical time. How big a threat are weeds for New Zealand’s biodiversity? Not enough public money is being put into managing weed threats to our biodiversity. New Zealand’s Predator Free 2050 goal really needs to include weeds. It’s a massive problem that decision makers have to think hard about. For example, QEII covenants are great, but slow destruction can occur over the long term, as no weed control leads to exotic weeds infestation. We believe that councils in particular are either unaware or ignoring the issues of riparian maintenance that are becoming more of a problem year by year. A handful of weeds get the headlines such as wilding conifers in our iconic high country yet all around us is the ticking time bomb of exotic species (including Sycamore) that have the potential to totally dominate our ecosystems.  Meetings are not everyone’s cup of tea … especially when you’re not being paid to be there! So what does this mean for the collaborative governance processes which are now an important part of freshwater planning around New Zealand?
There are people like my father who just want to plant the plants, weed, and trap pests. He doesn’t want to have to organise volunteer days, go to meetings, or fill out funding applications. Luckily he has an ex-school teacher friend who does all that for him. Then there are people like me — self-employed and interested in environmental issues, who would like to contribute but can’t afford a lot of time away from their business to attend meetings. The people who can, and want to, attend meetings are either paid to be there, have a personal stake in the outcome, or have the time available to meet. At the moment, these tend to be the only people involved in freshwater collaborative governance groups. I recognise that face to face, kanohi ki te kanohi, discussions are really important for building trust and relationships and working through problematic issues. But I wonder if there is scope to broaden the invitation for involvement to other interested people in a catchment and wider community. One way to do this would be to use a Facebook group. I recently participated in a Facebook challenge which included these potentially transferable elements:
The 'OECD Environmental Performance Reviews: New Zealand 2017' recognises the value of collaborative processes for securing support for reforms, raising awareness about water risks and costs, and increasing users' willingness to pay and to handle conflicts. However, the report (from pages 191-192) also states: “… there are concerns that the New Zealand collaborative governance approach in some cases may minimise, or at least delay, change for the following reasons:
 Who wants to be the person to front up and tell Mr Bloggs he can't divert a stream that’s undermining his bridge, build a high fence for which he has already bought the timber, or put in a fireplace to heat his cold house? Not me.
I’m not suited to it — I avoid conflict situations wherever possible. But we all need the people who are prepared to deliver the unpalatable but important messages, and to take action against people who ignore environmental standards. In ‘Last Line of Defence’ Marie Brown identifies a number of issues related to compliance, monitoring and enforcement in New Zealand, including the work carried out by councils. Here are nine issues councils face, and some potential solutions. 1. Different powers that apply under different legislation (bylaws are one example I have come across, where the enforcement powers are hugely variable). Here's a link to my earlier blog about how bylaw enforcement powers vary from strict to toothless. 2. Most environmental legislation does not provide councils with the ability to impose instant fines for lower level offences. 3. There is often no feedback loop between compliance monitoring and consent processes. Marie Brown’s suggestions include: - incentivising compliance by reducing the number of ongoing site visits required where compliance is occurring - being able to cancel resource consents (or refuse further consent applications) where non-compliance is serious or ongoing. 4. More than 40 councils have one or fewer than one FTE staff member to carry out their compliance, monitoring and enforcement responsibilities. Lack of time and resources for this work can result in lower quality investigations, and failed enforcement actions that waste time and ratepayer money. Marie Brown recommends: - an accreditation system for compliance, monitoring and enforcement, similar to New Zealand’s building consent accreditation process - access to a national or regional pool of expertise, for complex investigations. 5. Many councils don’t have a clear policy on how decisions about enforcement will be made, which can lead to an inconsistent approach. Marie Brown recommends that all local government agencies produce, and make publicly available, clear and up-to-date policies on environmental enforcement. She refers to Waikato Regional Council’s enforcement policy as a good example. 6. Councils are significant resource users on behalf of their communities, for example taking water for water supply services, and discharging stormwater into freshwater and coastal waters. They also carry out instream works for flood protection purposes. Where councils also have responsibility for monitoring and enforcing compliance of their own activities there is potential for perceived or actual conflicts of interest. 7. Limited information about enforcement actions is made available to the public, other than by local news agencies. Marie Brown suggests that “instances of public offending, particularly successful cases against offenders, can build valuable public support for the role of environmental enforcement agencies.” 8. IT infrastructure for tracking what enforcement action has been taken is essential. It is especially needed if the offender was only given a warning — to track whether compliance occurred in response to the warning. Small councils with limited resources can benefit from collaborating with other councils to commission the IT systems they need. 9. More independent auditing (for example by the Office of the Auditor-General) is needed, in the same way as occurs for other council functions such as the development of Long Term Plans. Marie Brown concludes with the following statement: “What is abundantly clear is that CME [compliance, monitoring and enforcement] is the poor cousin of other stages of the policy and planning cycle, despite its vital importance to achieving the aspirations of law and policy. If law and policy is about behaviour change, then it must be recognised that the on-the-ground efforts of agencies to procure that behaviour change deserve greater focus and priority.”  A new recycling system has begun in Nelson. Everyone received their bins back in August, with a booklet explaining the days of collection, and that this would be beginning in the second half of October. I must admit to feeling a bit smug when I saw the yellow lids out on the street weeks before the new system started. Didn't people read their booklets? But this week I've had my rubbish bag rejected, left with a 'wrong day' sticker. Not so well sorted, after all! This process of trial and error, as everyone gets used to the new system is a great example of the best kind of learning, as an adult. We do something wrong, nothing really bad happens, and we do it better next time. It must have taken Council staff and the recycling contractors (Nelmac) quite a lot of thinking about all the different ways to communicate the changes with residents, who will not have had their rubbish and recycling collections top of mind in the midst of their busy lives. Information needs to be on the bins, in the attached booklet, on both the Council and Nelmac website, and stickers printed for rubbish bags like mine left out on the wrong day. And those are just the communication avenues I've come across, I'm sure there are more. One thing's for certain, it makes us all appreciate the fact that our rubbish and recycling is eventually taken AWAY.  Friends are considering moving from Brisbane to New Zealand, and are weighing up Wellington and Christchurch as their future home. While it’s easy enough to look at job opportunities, house prices and weather reports from afar, there’s still a need to go to a place and ‘sniff the air’ to really know if it’s a place where you feel you can thrive.
Everyone has their own subjective response to a place, but a recent study by KPMG identifies seven principles cities can follow to be more appealing to people, specifically young wealth creators. KPMG describes these as ‘magnet cities’ and includes Christchurch as one of its success stories. 1. Magnet cities attract young wealth creators This involves choosing an authentic point of attraction. Cities that successfully target particular groups of wealth creators do so because there is a logical link to the city. One of the niches Christchurch is developing following the earthquakes is to foster expertise in construction methods, and natural hazards. This is one example of diversification of the city’s economy to become a centre for specific research, technical and professional services. 2. Magnet cities undergo constant physical renewal KPMG notes that many young professionals favour housing in urban cores, or in neighbourhoods that are linked to the urban core by quick and easy public transport. The design and sustainability features of housing is as important as its location – many prefer to live in mixed use neighbourhoods. Christchurch’s city centre is to be condensed to 40 hectares, with the aim of attracting new residential use as well as businesses. 3. Magnet cities have a definable city identity Without a clear city identity it is difficult for future residents to clearly understand what a city stands for and whether they are attracted to it. 4. Magnet cities are connected to other cities If a city is going to attract a new generation of residents, the city must be easy to get in and out of. In particular, young wealth creators who move into a city are likely to travel back and forth more frequently to other places or cities for work and to visit family and friends. 5. Magnet cities cultivate new ideas All of the case study cities leveraged their academic institutions to bring change to their cities. Here are some of the actions being taken by Christchurch:
6. Magnet cities are fundraisers The city councils have played an active role in providing capital and attracting private investment, research grants and public funds. Often the city’s existing assets have been used to attract further investment to transform the city. 7. Magnet cities have strong leaders The mayors of the cities studied by KPMG all had to cope with criticism and hostility when introducing a new vision for a city and making the necessary changes. They have been relatively inflexible about changes to the future vision for their city once it was agreed, but extremely flexible about the steps they took and who they involved to get there. More detail For more detail, please see KPMG's Magnet Cities document. The Christchurch Case Study is on pages 88 – 121.  Introduction
Opus Senior Planner David Jackson has worked in central and local government, as well as consultancy. He has a strong interest in urban planning and design, neighbourhood and centres development planning, as well as how to develop longer term plans that work and are useful. In this article he shares his thoughts on the potential for more joined up planning in New Zealand. Celebrated cities Melbourne, Curitiba, Vancouver and Singapore are all densely populated cities which are celebrated for their high quality urban environments. Something these cities all have in common is long term, consistent implementation of solutions to their challenges. The requirement for New Zealand councils to develop thirty year infrastructure strategies and the Proposed National Policy Statement on Urban Development Capacity are promising first steps in enabling New Zealand cities to plan the creation of higher quality urban environments here,. However, lack of an integrated approach to this long term planning is a risk. Upcoming challenges Many of the issues identified in the 2015 NZ Thirty Year Infrastructure Plan will also need to be addressed at a local level:
All of these are good things to be considering, but whether they get translated into infrastructure plans will come back to the range of disciplines addressing them. For example, our large ageing population is a medium term issue, but we don’t want to permanently plan our cities around this somewhat temporary demographic issue. One solution could be to think about adaptive uses such as making it easy to live in half the home and convert the other half for renting out and getting some income from that. Or temporary granny flats, which can be taken away once it’s no longer needed on a property. I do worry that, notwithstanding the above list of issues, many thirty year infrastructure strategies will just be about roads, sewers, drains and the like. While they are important, and indeed critical, you cannot plan properly for them without considering the land uses that will drive the demand on infrastructure. It seems obvious to me that you cannot work out your infrastructure needs without considering the activities on the surrounding land. But this does not seem to be universally accepted – much asset management planning gets done in isolation from other planning or strategic visioning. Legislative backing is needed A lack of non-partisan buy in to a strategic direction can hold us back. This, and a three year election cycle, has led to a lot of unpicking of projects and longer term plans. Another challenge has been that the Local Government Act and the Resource Management Act don’t talk to each other very well. There is still a lack of clarity on how everything relates. Most councils have interesting strategies gathering dust on shelves. This ends up devaluing public input, which can be given enthusiastically with an expectation that it will make a difference. However, if strategies aren’t mandatory they tend to be ignored over the longer term. This is an argument for urban development legislation. Medium to long term strategies that address neighbourhood development and sustainability need legislative backing. We should focus on refreshing these strategies over time rather than reinventing them on a regular basis. Higher density living increases the need for quality urban environmentsThe thirty year infrastructure strategies are only required to address one angle of longer term planning. Likewise, the Proposed National Policy Statement on Urban Development Capacity focuses on providing more housing, but not on the experience of living in these places. We also need to think about the quality of the urban environments. The higher the density of housing, the more quality matters. For example, if there’s no outside yard, local parks become more important. Integrate infrastructure, zone rules and project fundingCouncils have a choice when developing their infrastructure strategies. They can be basic, only focusing on the roads and pipes we need. Or they can become the starting point for a long term growth plan/spatial plan. This would be just as useful for areas experiencing depopulation as for growth areas, for example to make decisions on abandoning a certain area of the town. An urban development plan could bring together statutory plans with zone rules, infrastructure and the funding for actions. Only Auckland currently has a mandatory requirement to do a spatial plan (required as part of the development of the Unitary Plan). Dunedin has developed a spatial plan which is not too over the top, but addresses growth, hazards, neighbourhood centres and a range of other issues. I see it as a good example of a very useful plan – useful in the sense of providing the platform for their new district plan, and for a bunch of actions that get funded through the Long Term and Annual Plans. Examples of high quality cities These cities didn’t just accept the problems they faced, but instead did something about it. Melbourne has a development plan, and the council has paid a lot of attention to urban design. The city has great transit, with just one card needed to go on all transport, making it easy to move around. The combination of good accessibility, design flair and vibrancy means that Melbourne has to be up there as a world class city. Curitiba, in Brazil, solved its transport woes, which were significant in the 1950s and 60s. Its mayor (who incidentally, or perhaps significantly, was a planner) led a plan to create an integrated transit-based city. It was so successful that Curitiba’s council now has a whole department for hosting all the people from around the world who come to learn how to achieve similar outcomes. It is interesting to reflect on the different paths Curitiba and Auckland took over the last 50 years, with vastly different results. Vancouver has incorporated the concept of ‘gentle density’ in its spatial plan. I love this term, as it’s not threatening, and it works at various levels:
Portland created something different as a result of being steadfast in their approach rather than chopping and changing. Singapore doesn’t have many natural features, but has invested in design to create great public spaces and art, and gardens. It also has brilliant transit and free events. Paradoxically, for a place that depends on fossil fuels for its very survival, it is very green in many respects.  Introduction David McMahon is an accredited Independent Hearing Commissioner and resource management consultant at RMG with particular expertise in statutory planning and process. He has been a Commissioner since 2001, and has worked on a large number of plan change, resource consent and designation hearings in Wellington, the lower North Island and across the South Island. In this article (the final one of a three part series), David identifies areas for improvement in how councils work with commissioners, and some of the challenges commissioners face. In part one David discusses the increasing trend for councils to use independent commissioners, and in part two he discusses the decision making process. What can council officers do to help independent hearing commissioners, to ensure a smooth hearing and decision making process? The most important things are early engagement and separation of functions. The sooner the Commissioner or panel is engaged, the sooner they can establish the pre-hearing process and timetable to be followed; for example pre-hearing meetings, expert conferencing/caucusing and further information requests. Providing sufficient time for those actions to occur, whilst potentially delaying the commencement of the hearing, can usefully serve to narrow the issues in contention and therefore shorten the actual hearing duration or even in some (albeit limited) cases can completely resolve issues without the need for a hearing. The written directions to parties that a Commissioner can provide once appointed can readily assist in providing the scope and space for such conferencing/resolutions. Although it is difficult for smaller councils without the luxury of large planning teams, it’s also essential that wherever possible a council maintains a separation between their administrative and reporting functions when dealing with hearing commissioners and panels. Quite often the reporting officer is handling administrative arrangements, including commissioner liaison, and this is not appropriate. A reporting officer is no different from a submitter or an applicant. It is not okay for the hearing panel to be liaising directly and individually with any individual party to the proceedings, whether submitter, applicant or reporting officer because there’s the risk of influence, or a perception of influence. What are some of the challenges independent hearing commissioners face?
Accommodating pre-circulation requirements into the time frames set down for limited and fully notified resource consent hearings is now mandatory but it does put pressure on all parties. Expert witnesses, whilst conscious of meeting the expectations of commissioners and working in the spirit of the code of practice, understandably have an eye on the ticking clock which means that they will still need to produce a brief of evidence following conferencing and have it circulated as per the due dates. Commissioners need to be cognisant of these tensions and pressures when setting their own timeframes. The quid pro quo for experts is that if they are successful in narrowing the issues during conferencing this will reduce the scope and length of their evidence. There is more opportunity for resolution of issues through a prehearing process for plan reviews and plan changes because the time frames are more liberal. So, whilst prehearing discussions enable a narrowing of the issues to be considered at the hearing, this can only effectively be done for plan changes and plans, unless in the case of resource consents the applicant agrees to put the application process on hold to accommodate pre-hearing conferencing. Otherwise, there isn’t much time for talking and everyone becomes locked into pre-circulation of evidence. Early engagement is critical for this to be successful. For example, I have been engaged to assist with the decision making on a plan change at Tasman District Council. I have known this for 18 months, which means I can make sure I have the time available to do it, and I can be across all aspects of the process as soon as the official delegation has been made by the Council. This usually occurs prior to notification. Once submissions close, I issue directions through a minute. This goes out to all parties involved in the hearing. It provides certainty about the process and gives a likely timeframe. In the minute, I outline the key issues raised in submissions and indicate I want parties to get together to resolve as much as possible before the hearing.
Concluding comment This is the final in this series of articles on decision making under the RMA. I’ve enjoyed contributing to it and hope it has been of interest to all participants in RMA hearings. Hopefully it has stimulated some discussion even if you don’t agree with all that has been canvased. Finally, I would like to thank Debra Bradley for initiating this series and getting me motivated to contribute under her editorial tutelage. Her grasp of these matters is impressive and I would commend her services to councils throughout the country.  In part three (the final one of a three part series), David identifies areas for improvement in how councils work with commissioners, and some of the challenges commissioners face.
Introduction David McMahon is an accredited Independent Hearing Commissioner and resource management consultant at RMG with particular expertise in statutory planning and process. He has been a Commissioner since 2001, and has worked on a large number of plan change, resource consent and designation hearings in Wellington, the lower North Island and across the South Island. In this article (which is part two of a three part series), David discusses the decision making process. In part one David discusses the increasing trend for councils to use independent commissioners, and in part three he identifies areas for improvement in how councils work with commissioners, and some of the challenges commissioners face. In part three (the final one of a three part series), David identifies areas for improvement in how councils work with commissioners, and some of the challenges commissioners face. What happens during the decision making process?
Firstly, we often do a follow up site and locality visit. In many instances there are particular properties or places we want to visit a second time based on material we have heard during the course of the hearing; usually from submitters. Secondly, an adjournment provides an ideal opportunity to collate the information in front of the Panel to ascertain whether there are any material gaps that should be plugged by one or more of the parties. Nine times out of ten I have usually flagged these information requirements to the parties during the hearing but the immediate post-hearing point is an ideal time to perform this form of 'stock take'. Actually there is a third reason for an adjournment; that is to give either (or both) the Reporting Officer and the Applicant some time to prepare their respective ‘closings’. For the Reporting Officer this is usually giving them adequate time to reflect on what they have heard (from the applicant and submitters) during the course of the hearing and to reduce that to a written update to their section 42A report. For the applicant this is an opportunity to provide their traditional right of reply in writing. I usually minute the above process so everyone knows what is expected and the timeframe involved. Normally we reconvene at another time to hear those ‘closings’, but sometimes it’s possible to just consider the papers without reconvening.
These things are not necessarily taught in the commissioner training – but they are what I can offer. Councillors are generally receptive to working through how we make a decision first, before arriving at the actual decision. We look at the issues and the context before reaching a decision. Sometimes councillors want to jump immediately to a decision; that is inevitable and what they are often used to in LGA forums. But my role is to promote a logical decision making process and ensure we have addressed all issues that are relevant to arriving at a decision. This is important as the reasons for the decision need to be clearly stated in the formal determination. I use two whiteboards to structure the decision making process. One for the decision outline and one to develop each section in that outline. The first is the broad structure of the decision and helps provide context for the decision-making process. The second represents the ‘skeleton’ of the write up of each section (topic or issue) of the decision. At each stage in the process the notes on the boards are photographed and this informs the creation of a decision report covering: Part 1 – Introduction – background and proposal Part 2 – Issue definition and a summary of what we heard Part 3 – Evaluation – what we make of what we heard Part 4 – Statutory considerations Part 5 – Recommendations.
Even though councils no longer have to make decisions on individual points on district and regional plan matters, I still use a table to record individual decisions on every submission and further submission point to make sure everything is covered. I encourage councils to adopt this table approach in the submission summary and in the section 42A report (usually as an appendix) as it allows the decision to focus on the issues in contention rather than become a prolonged narrative on submitter points.
What is the role of local knowledge in the decision making process? Local knowledge is both useful and a hindrance. In a hearing, you can only know what you’re told in the written/verbal material placed in front of you at the hearing (a bit like a jury). Commissioners are there to hear, to weigh and to balance the evidence. Whilst a Panel Member’s technical knowledge may assist them in testing certain evidence, it is not appropriate for Panel Members to substitute their own knowledge for the absence of evidence. Local knowledge can also be very useful, for example being able to advise the other Panel Members that a council has decided to address heritage issues through Long Term Plan funding and non-regulatory education rather than through the district plan. Local knowledge of the good spots for a decent coffee is also critical. What is your process for reaching a decision when the independent commissioners on a Panel don’t agree? I try and break down the issue – is it limited to a particular component of the decision or is it the total decision? I also attempt to isolate the reasons for the disagreement – are they valid; are they RMA related; and are they capable of being addressed through the addition or deletion of a particular provision (on a plan matter) or conditions (in the case of a resource consent)? Really, it’s a case of exploring all possible solutions to the disagreement, and if there’s still no consensus then accepting that a dissenting or alternate view/decision may be the outcome. In this case it’s important that Panels either have an uneven number of members, or if it is an even number, that the Chair has a casting vote. Will use of independent commissioners increase decision making consistency across New Zealand? I hope so. It can’t help but increase awareness of how best practice is evolving around the country. In this sense I really hope this series of articles generates some interest in the use of ICs around the traps and in particular the use of Mixed Panels, and also helps share some of my thoughts with other Commissioners. What do you like most about working as an independent hearing commissioner? Achieving an efficient and effective outcome is immensely satisfying, as is having opportunities to train others. I also enjoy meeting a diverse range of people with a variety of skills, and travelling to places like Ohakune in summer when it is very quiet (out of the ski season), and Alexandra in the middle of a very cold hoar frost. Every hearing is different.  Introduction David McMahon is an accredited Independent Hearing Commissioner and resource management consultant at RMG with particular expertise in statutory planning and process. He has been a Commissioner since 2001, and has worked on a large number of plan change, resource consent and designation hearings in Wellington, the lower North Island and across the South Island. In this article (which is part one of a three part series), David discusses the increasing trend for councils to use independent commissioners. In part two David talks about the decision making process, and in part three he identifies areas for improvement in how councils work with commissioners, and some of the challenges commissioners face. Have you noticed a trend towards councils using independent hearing panels more often? Yes. This is definitely a trend, which began in earnest around 2005 when the Making Good Decisions course commenced and independent commissioners needed to be officially accredited. It has been ramping up ever since, following law changes in 2009 requiring a proportion of all hearing panels to be accredited, and in 2013, requiring accredited Chairs of hearing panels. In particular, I’ve noticed a trend to use independent commissioners in a mixed panel arrangement, made up of some councillors with one or two independent commissioners. This reflects the need for panels to be made up of accredited commissioners and Chairs, as not all councillors are accredited. Another reason for this trend is general pressure on councillors to focus on other Council responsibilities under the LGA and portfolios. It can be difficult for councillors to commit significant amounts of time to long hearings. Are hearings becoming longer? As a general rule yes. There has been a noticeable increase in the complexity of hearings, which require a diverse range of technical knowledge. This has particularly been the case with regional consent applications (and joint regional/district hearings such as quarry/landfill applications) where scientific evidence often predominates. Also, now that second generation district plans are being developed, with resource consent hearings we are returning to the situation of having to consider the relative weightings of provisions in existing and proposed plans. Small hearing reports are a thing of the past. There is often a requirement for multiple technical assessments by reporting officers and applicants. For example, in addition to the typical traffic, noise, and landscape assessments, the rise of the geotechnical assessment has occurred since the Christchurch earthquakes. So there is more technical information for panels to absorb. The counterbalance to this – and a recent trend since the 2013 amendment – is the increase in pre-circulation of hearing reports and expert evidence. Avoiding the need to have evidence read verbatim at hearings is helping to keep hearings to manageable lengths. Even though hearings are longer and more complex, there are fewer resource consent hearings because the vast majority of resource consent applications are non-notified following legislation changes to speed up resource consent processes. This change means there is more reason for people to get involved in plan hearings, which means these hearings are likely to be longer, and involve more people. In what circumstances are councils most likely to use an independent hearing panel? Independent commissioners (ICs) are used in both resource consent and District/Regional Plan hearings. However, in my experience, ICs are most likely to be involved in resource consent applications, either exclusively or as part of a panel. Councils use independent hearing panels where the council is the applicant, for example, applications related to a roading designation, a community centre or a waste water treatment plant. They are also used for resource consents where there is potential for conflict due to lobbying of councillors, or if councillors know the applicant. Another factor leading to the use of ICs – and a more recent trend under the RMA – is that both applicants and submitters can now request independent decision makers on resource consent applications. In what circumstances do you think it is better for councillors to hear submissions and make decisions? It’s good for councillors to be involved at a plan making level. That’s because if they get the policy right, the “right” decisions will be made on resource consent applications. However, mixed panels of independent commissioners and councillors are even better, and are now the accepted norm. Mixed panels can be very effective because they combine councillors’ local knowledge and governance role with the technical expertise and legislative know-how of the independent commissioners. Queenstown District Council is using a pool of commissioners in the decision making process for its Proposed District Plan. The same Chair is involved in all the hearings, alongside one councillor per hearing and two other commissioners (from the pool). Kapiti Coast District Council is using a mixed panel of two ICs, two councillors and one Iwi commissioner for its Proposed District Plan hearings. Next year the Wellington Regional Council’s Proposed Natural Resources Plan hearings will be heard by a panel of three independent commissioners. How do councils find out about the independent commissioners available to assist them? There are a variety of ways to select independent hearing commissioners. There is a centralised list on the Ministry for the Environment’s Making Good Decisions web page. Many councils are now either calling for nominations from independent commissioners for their register of accredited decision makers (usually for resource consent hearings) or requesting specific registrations for plan reviews (from which either a pool or a panel is constituted). Word of mouth plays an important part too. Commissioners can also advise on the best mix of skills and personnel for a particular hearing panel. When I am asked to be a commissioner on a hearing panel I ask who I will be sitting with. I take into account skills and personalities, and whether it will be a strong team. I’m a generalist who understands process and policy. Technical experts are often needed, and involvement of a councillor with local knowledge can also be important. It is a great privilege when councils approach me and ask who I would recommend including on the panel, giving me the opportunity to choose a strong team.  The Government will soon provide more national direction on managing risks associated with natural hazards through a National Disaster Resilience Strategy.
This strategy will be influenced by the international Sendai Framework for disaster risk reduction. This is a United Nations agreement which New Zealand signed in 2015. It has four priorities for action: 1. Understanding disaster risk. 2. Strengthening disaster risk governance to manage disaster risk. 3. Investing in disaster risk reduction for resilience. 4. Enhancing disaster preparedness for effective response and to “Build Back Better” in recovery, rehabilitation and reconstruction. New Zealand’s National Disaster Resilience Strategy The National Disaster Resilience Strategy is being developed by the Ministry of Civil Defence & Emergency Management (MCDEM), and will replace the current National Civil Defence Emergency Management Strategy. The MCDEM website states the Ministry will consider where efforts could be better targeted to yield the greatest benefit across the four priority areas of the Sendai Framework (listed above). Strategy development processCouncils are key stakeholders in the National Disaster Resilience Strategy, alongside property managers and owners, lifeline utilities, insurers and reinsurers, and the NZ Insurance Council. There are multiple opportunities for local government to take part in the MCDEM’s development of the National Disaster Resililence Strategy, which is due for completion in 2017 – the timeline for that process is available here. National Policy Statement or National Environmental Standard?At a recent Resource Management Law Association meeting, Tonkin + Taylor Director Marje Russ said one of the outcomes of the Strategy is likely to be national guidance on resilience for councils in the form of a National Policy Statement (NPS) or a National Environmental Standard (NES). Marje is currently working on a report for the Government on this topic. Marje said the resilience NPS or NES is unlikely to be developed until after the Resource Legislation Amendment Bill 2015 has taken effect, so the upcoming changes related to national instruments can apply to that process. The natural hazards page of the Ministry for the Environment website states: “Managing significant risks from natural hazards is a Government priority. The Minister has stated a preference for a National Policy Statement (NPS) with an indicative date for completion of 2018. Consultation on the development of a NPS would commence following the enactment of the Resource Legislation Amendment Bill.” NPS or NES? At the Resource Management Law Association meeting I attended in Nelson (on 28 April 2016), the indication from participants was that a National Environmental Standard for managing natural hazards would be more welcome than a National Policy Statement. The general view was that a NES would more effectively and efficiently overcome many of the difficulties many councils have faced when the community has opposed natural hazard mapping and rules in resource management plans. Do you agree? Or do you think a National Policy Statement would provide what councils need to manage natural hazards in New Zealand?  Two of the proposals in the Government's ‘Next Steps for Freshwater’ consultation document are to:
Here's a link to the full consultation document, which covers a much broader range of proposals including technical changes to the National Policy Statement for Freshwater Management, Iwi participation in freshwater decision-making and changes to the Freshwater Improvement Fund criteria. Submissions close at 5.00pm on Friday 22 April 2016. 1. EFFICIENCY STANDARDS FOR WATER TAKES (see pages 22 - 26) Water is currently allocated on a ‘first in, first served’ basis, meaning applications for water are assessed in the order they are received. This approach works when available water can meet the needs of all users. However, once water becomes scarce, higher value or more efficient uses can’t be prioritised. New users cannot always obtain the resources they need to establish high value enterprises, because all the available water has been allocated or no new discharges are allowed. However, if users become more efficient in their water use and reduce discharges it will create room for new users. Proposal: Require councils to apply technical efficiency standards in catchments that are at, or approaching, full allocation of water. Technical efficiency standards will define the amount of water that would be used by an efficient user in different climates, soils, and end uses, for example, urban, hydro, irrigation. Questions:
2. STOCK EXCLUSION FROM WATER BODIES (see pages 19 - 20) Proposal: To regulate to exclude dairy cattle on milking platforms from water bodies by 1 July 2017, and to extend this to land used for dairy support, beef cattle and deer at a later date (see table 2) to give these farmers time to comply. Sheep and goats will not be covered by this proposal as they do less damage to our streams and rivers. Stock will only be nationally required to be excluded from water bodies on flat land and lowlands and rolling hills (< 15˚ slope) due to the practicality of fencing on steep country and the high costs relative to the environmental benefits. This would not override more stringent council rules and councils will still have the ability to apply stock exclusion rules more widely where they see this as necessary or desirable. See Table 2 on page 20 of the consultation document for more details about the proposed deadlines for stock exclusion. In summary,
How stock will be excluded Farmers will need to put up permanent fences unless there is a natural barrier preventing stock from getting to the water. Temporary fencing will be allowed where this is more appropriate, for example, for short-term grazing or where flooding is a problem. Water bodies where stock will be required to be excluded The national stock exclusion regulation would apply to:
Enforcement Some councils already have some degree of stock exclusion requirement in their regional plans. There are problems with practical enforcement because the expense to councils and ratepayers of taking a Court prosecution can seem excessive. The Resource Legislation Amendment Bill currently before Parliament provides explicit provision for these proposed national regulations. It also introduces a nationally standardised infringement regime with instant fines. Will riparian buffers be required? It is not proposed to require a riparian buffer between a fence and the waterway. If managed well, riparian buffers can benefit water quality, bank stability, and biodiversity. However, the optimum buffer width and how it should be managed depends on the circumstances and aims. The high cost of managing riparian buffers (eg, planting, weed control) is not justified by the environmental benefits in all cases. Some councils are already working with farmers to promote riparian management in high value and at-risk areas. Question: Do you agree with the proposed requirements and deadlines for excluding livestock from water bodies? Why or why not? MAKING A SUBMISSION Details on how to make a submission are provided on pages 38-39 of the consultation document.  It was wonderful to hear on 12 December 2015 that the participating 195 countries had agreed, by consensus, to the Paris Agreement on Climate Change. In the 12-page document, the members agreed to reduce their carbon output "as soon as possible" and to do their best to keep global warming "to well below 2 degrees C". It wasn't possible for news agencies to delve into the detail of the agreement, but this 12 page agreement packs a lot of punches. If it is implemented, it will be an amazing global collaboration. You can read the complete Paris Agreement is on pages 21 - 32 (Annex) of this document: http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf. In addition to the nationally determined commitments to reduce greenhouse gas emissions, there are commitments to share information, technology, climate data and money. AdaptationThe commitments related to adaptation may have implications for New Zealand councils, particularly as all parties to the agreement will be required to prepare and submit national adaptation plans. Article 7, point 11 (on page 26 of the attached document) states that: "The adaptation communication referred to in paragraph 10 of this Article shall be, as appropriate, submitted and updated periodically, as a component of or in conjunction with other communications or documents, including a national adaptation plan, a nationally determined contribution as referred to in Article 4, paragraph 2, and/or a national communication." Ratification of the AgreementThe Paris Agreement will not become binding on its member states until 55 parties who produce over 55% of the world's greenhouse gas have ratified the Agreement. The ratification process is scheduled to occur between April 2016 and April 2017. Global StocktakeThe implementation of the agreement by all member countries together will be evaluated every five years, with the first evaluation in 2023. The stocktake will not be of contributions/achievements of individual countries but a collective analysis of what has been achieved and what more needs to be done. Anyone who has prepared a carbon inventory for a council will know that this is a huge task for the United Nations!  The three options being considered for limiting the global temperature rise are:
Radio New Zealand reports that the United Nations-set deadline for the deal to be settled is 6pm Friday, 11 December (Paris time), but it is widely expected the conference will run over time. For more information go to http://www.radionz.co.nz/news/world/291746/new-climate-pact-draft-released  The latest report by the Parliamentary Commissioner for the Environment (PCE) provides useful guidance on how to break the news to home owners that they may be affected by sea level rise. The PCE website also provides regional land elevation maps which could be valuable to councils. The full report is available at http://www.pce.parliament.nz/publications/preparing-new-zealand-for-rising-seas-certainty-and-uncertainty, and some of the key messages for councils are summarised below. Process for informing home owners of riskPlanning in the face of uncertainty is never easy, but is particularly difficult when choices will affect people’s homes. Yet Councils could be found negligent if they hold relevant information and fail to provide it clearly, fairly, and accurately. Accurate measurement of land elevation above sea level is an essential first step in considering the potential impacts of sea level rise. These maps provide a starting point for councils beginning to engage with their communities on this challenging issue. The PCE recommends taking time to discuss this before introducing hazard zones, or including information on LIMs. Assessment of the vulnerability of a particular area generally requires information about a range of local characteristics, which is a follow up step. A clearer separation between scientific assessment and decision-making would increase clarity around risk levels and assumptions. Judgments, such as those involved in adding safety margins or setting restrictions on development, should be made transparently by decision-makers, rather than rolled into technical assessments. Clear communication Clear communication is a vital component of a good process. One particular need is to avoid referring to ‘one-in-50 year’ or ‘one-in-100 year’ flood events. Not only is this terminology difficult to understand, it is not a stable measure over time. For example, after a rise in sea level of 30 centimetres, an extreme high water level (which has previously been a 1 in 100 year event) would be expected to occur about:
The report includes a number of other useful descriptions of complex concepts, including the following. Flood issues Areas close to river mouths can experience the ‘double whammy’ of river flooding coinciding with the sea pushing its way upriver at high tide. As high tides become higher because of sea level rise, such floods will become more likely. Groundwater In some coastal areas, the water table is not far below the ground and is connected to the sea. As the level of the sea rises, the water table will rise in these areas. High groundwater causes a number of problems:
Areas of land reclaimed from the sea are especially likely to experience problems caused by high groundwater. LidAR and RiskScape LiDAR technology - pulses of light from a laser on an aeroplane are bounced off the ground, and the time taken for the reflected pulse to return is used to measure the elevation of the ground. Topographic surveys using LiDAR are typically accurate to 10 to 15 centimetres, so can be used as a basis for analysing the impacts of sea level rise. RiskScape – this software programme has been used to find how many buildings, and which roads, railways, and airports are located within the different elevation bands. Elevation maps availableThe PCE commissioned NIWA to convert the available LiDAR data into a standardised form. Once this was done, NIWA used RiskScape software to estimate how much of the built environment is at risk from sea level rise. The report contains maps showing low lying coastal land in Auckland, Wellington, Christchurch, and Dunedin. The impact of sea level rise will be felt in many other areas outside of these four major cities. Maps of these and other coastal areas have also been prepared in the course of this investigation, and are available at www.pce.parliament.nz Five other cities and towns that have significant areas of low-lying coastal land – Napier, Whakatane, Tauranga, Motueka, and Nelson. The situation in Auckland, Wellington, Christchurch and Dunedin Auckland Vulnerable transport links include the Northern Motorway just north of the Harbour Bridge and the causeway on the Northwestern Motorway where it crosses the mud flats at Waterview. Wellington Most low-lying areas in Wellington are on the floodplain of the Hutt River – in Petone, Seaview, and Waiwhetū. The more pressing issue for this area is river and stream flooding. However, rising sea level will exacerbate such river floods by reducing the fall to the sea. Much of Wellington city’s shoreline is protected by concrete seawalls and/or rock armouring. Such hard defences will require increasingly expensive maintenance as the sea rises. Christchurch A considerable amount of low-lying land shown on the map is in the Residential Red Zone and so has been largely cleared of buildings. Dunedin Dunedin is notable for the large built-up area in the city’s south that is very low-lying. Of the nearly 2,700 homes that lie less than 50 centimetres above the spring high tide mark, over 70% are lower than half that elevation. The low elevation of South Dunedin along with its high water table makes it prone to flooding after heavy rain. The water table also rises and falls with the tides, so these problems will increase as high tides become higher. National direction and guidanceThe Ministry for the Environment began work on a national environmental standard in 2009. However, this work has now stopped. The Minister for the Environment’s view is that there is “too much uncertainty for a rigid standard to be applied”. The Ministry is now working on an update of the 2008 MfE Guidance Manual. This provides an opportunity to address matters that emerged during the PCE's investigation. The revised guidance should be a ‘living document’, so it can be readily updated. Recommendations to the Minister for the Environment include:
 Here are the Government's predictions for the transport sector, as outlined in the Thirty Year New Zealand Infrastructure Plan 2015.
 The effects of climate change are now considered a foreseeable risk. Insurance companies in the United States have signalled that planning authorities should carefully consider potential liabilities when making development decisions. Similarly, in New Zealand the Parliamentary Commissioner for the Environment Dr Jan Wright commented (on 27 November 2014) that: “if councils allow development in the knowledge that maybe they shouldn’t, then there may also be liability falling on them.” This is problematic in relation to the extent of known information. Many aspects of climate change can be understood only in terms of trends, probabilities and likely ranges of the expected impacts of climate change in future. The level of information necessary for precise quantification will emerge only through time. The August 2015 SOLGM report ‘Climate change – Local Government can make a difference’ recommends a collaborative approach between Government and local government to provide nationally consistent information on the likely effects of climate change. This was backed up by the Insurance Council of New Zealand in 2014, when it made 15 recommendations for protecting New Zealand from natural hazards, including the following three which are of particular relevance to climate change:
The SOLGM report states that online information systems will be most useful and more trusted if there is a consistent approach taken to this work, on a national basis. This would help councils to reduce costs, avoid reinventing wheels, and support reliability and comprehensiveness in the information underpinning their policies and strategies and provided to communities. Opposition from property owners Nationally consistent approaches to development and provision of information about the effects of climate change would also help address the battles many councils face when attempting to set regulatory controls on use of private property based on future risks from natural hazards. To resolve this, the President of Local Government New Zealand, Lawrence Yule, has called for greater direction from central government. “Without any central government directive it is quite difficult for councils to do what effectively might be the right thing for the future, but is seen as being too aggressive for the people of the present.” Information source: The information in this article was sourced from the following report ‘Climate change – Local Government can make a difference’ commissioned by SOLGM, and published August 2015. The full report is available here: https://12233-console.memberconnex.com/Attachment?Action=Download&Attachment_id=552  Here are the key points from the Parliamentary Commissioner for the Environment's Update Report on water quality in New Zealand (published in June 2015). Here's the full report: http://www.pce.parliament.nz/assets/Uploads/Update-report-Water-quality-in-New-Zealand-web.pdf
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