Enable Objections

Enable objections to be heard by an independent commissioner

Problem

222. Currently, applicants and submitters can request that notified resource consent applications are heard by an independent hearings commissioner instead of the consent authority. However, parties do not have the ability to request an independent decision-maker for objections to decisions (under sections 357-357D) – so objections to the council’s decisions are heard by councillors bydefault.

223. There is a risk of actual or perceived bias if a council is considering an objection relating to one of its own decisions or a decision that one of its officers hasmade.

Proposal

224. The proposal will enable the following objections to be considered by an independent hearings commissioner instead of by the consentauthority:

· an objection made if an officer of the consent authority refuses to grant a resource consent (sections 104B and104C)

· an objection regarding a decision on an application for a change or cancellation of a condition of a resource consent (section127)

· an objection regarding a decision on a review of the conditions of a resource consent (sections 128 to132)

· an objection regarding a decision on an application to vary or cancel a condition specified in a consent notice (section221).

225. Hearings commissioners would be provided with the power to call for further evidence, beyond the reports received from a hearing and pre-hearing meeting, if it will help them to make a decision on the objection. Costs for this process would be charged to theapplicant.

226. Benefits will fall on the applicant, who will be able to request that their objection be heard by an independent commissioner. It is assumed that this process will be more cost-effective than lodging an appeal to the Environment Court for those occasions when the applicant is seeking decision-making independent of thecouncil.

227. This proposal has few risks. It is requested by the applicant and cost recovered by the council

228. Accordingtothe2012/13RMASurveyofLocalAuthorities,therewere317objectionsand

239 appeals in 2012/13 resulting from over 340,000 consent decisions. Objections and appeals decreased by one third compared with 2010/11 but we do not know whether this represents a long-term declining trend. However these numbers are not huge and thus the contribution of this reform to the net benefit of the package of consenting reforms is likely to besmall.

Alternatives

Low costtribunal

229. A discussion document released by the Ministry for the Environment – Improving our Resource Management system – released in February 2013, contained a proposal for a ‘low cost tribunal’ as a way of addressing the policy problems stated above. The new tribunal was intended to be accessible at low cost and would have covered all aspects of the consenting process, including pre-application engagement. The tribunal was to hear appeals on proposals up to a certain scale and was intended to deliver decisions more swiftly than the EnvironmentCourt.

230. The proposal was not supported by submitters, who were concerned that a new process would make the system more complicated to navigate, and who pointed out that mediation already provided a low cost process to deal with less complex issues. In response to this feedback, the Ministry developed the currentproposal.

Conclusions

231. The option initially preferred was the low cost tribunal as proposed in the 2013 consultation document. This was dismissed for the reasons outlined above. The current proposal was developed to address the issues raised in the submissions, along with the package of proposals offering more flexibility for the operation of the Environment Court (P 4.2) by extending the powers of judges and commissioners sitting alone. These options do not require the development of a new body, and so are considered to avoid some of the risks of overcomplicating the system that were raised by submitters while still providing efficiency gains and removing the perceivedbias.

232. This proposal will provide an alternative option for objection proceedings, which will contribute to the increased flexibility and adaptability of processes anddecision-makers.