Reduce BOI cost and complexity

Reduce BOI cost and complexity

Problem

458. The Board of Inquiry (BOI) process for considering Nationally Significant Proposals was significantly reformed in 2009 so that decisions would be made in a nine month time frame. However it is an expensive process, with the cost of the EPA process alone costing the applicant from one to three milliondollars.

459. Currently, Boards are chaired by Judges who have high per diem costs. This provision was introduced in 2005 before the Making Good Decisions Program for training RMA commissioners existed. Notification requirements are excessive. The use of IT is not expressly allowed for, and Boards conduct their affairs without a consideration of cost- effectiveness.

Proposal

460. The proposal is a suite of amendments to reduce BOI cost andcomplexity.

461. Specifically, the following changes areproposed:

· requiring the Board to conduct its inquiry in accordance with any Terms of Reference set by theMinister

· changes to processes to simplify and reduce costs (such as the reduction of the public notice requirements and allowing for electronic provision ofinformation)

· expanding the role of the EPAby:

o allowing it to make decisions that reduce cost of a BOI for administrative matters that are incidental to the conduct of an inquiry – this includes fixing the place, and venue of ahearing

o enabling it to provide planning advice if the Board requestsit

o allowing it to suspend processing where there are outstanding debts, and to debt recover

· reducing costs of the Board by making the current requirement that a BOI be chaired by a Judge optional, and including a consideration of legal expertise, experience managing cross examination within its skills and experience, and relevant technicalexpertise

· requiring Boards to carry out their duties in a timely and cost-effective manner and to have regard to forecastedbudgets.

462. Cost reductions may be realised through lower notification costs, less contracting out for planning and technical advice, and lower per diem costs of the Board. Boards will have to balance efficient processes against the need for natural justice for inquiryparticipants.

463. The impacts of these proposed changes will be highest for the EPA, as they will be responsible for implementation. They will need to develop new processes for notification, making decisions on administrative matters that do not impinge on the substantial decision, recovering debt, selecting potential Board appointees. These costs are mostly upfront. There also could be longer term cost implications if EPA needs to increase its staff capacity to provide planningadvice.

464. As the cost of BOI processes are fully cost recovered, process efficiencies should result in lower costs for applicants. There may be increased risk of litigation if increased emphasis on efficiency results in a fettering of natural justice and hence litigation. As a result, appeals may prolong the nine month prescribedtimeframe.

465. Affected parties and submitters would be served with minimal paper and will be able to access application details online although the current dissemination channels will still be available for those who do not have access to the internet. It is noted that identifying affected parties and their contact details remains a laboriousprocess.

Alternativeoptions

466. Alternative options were considered for each amendment, including various changes in specifications for the chair of the Board, varying the specifications for composition of Board criteria and size, and changing the interface between the Board and theEPA.

467. Having the Board selected and appointed by the EPA is the most cost effective means of Board selection. Impacts are immediate, with cost savings for the applicant and time savings for the process (ie the Board will be appointedearlier).

468. The size of the Board has a direct impact on the cost of the Inquiry but the size of the Board is at the Minister’s discretion. The most efficient option allows Board size to be proportional to the complexity of the application. Impacts are immediate, resulting in cost savings for the applicant. Similarly the composition of the Board should reflect the expertise required to make a decision which will vary from Board to Board rather than having regard to multiple criteria, which may not be relevant in all cases and increases searchcosts.

Conclusion

469. Boards of Inquiry make decisions on complex applications that are of high public interest and attract considerable scrutiny. They must produce a ‘quality’ decision within a strict timeframe but at acceptable cost. An increased emphasis on efficiency aims to achievethis.