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.