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26. 2. 97
ENVIRONMENTAL COMMITTEE
13 DECEMBER 1996
A special meeting of the Environmental Committee
was held on Friday 13 December 1996 at 9.00 am
PRESENT: Councillor Carole Evans (Chairman),
Councillors Oscar Alpers, Anna Crighton,
Newton Dodge, Charles Manning and
Barbara Stewart.
IN ATTENDANCE: Councillors David Buist and David Cox.
APOLOGIES: An apology for lateness was received and accepted from Councillor Barbara Stewart.
Councillor Alpers arrived at 9.25 am and was present for part of the discussion on clause 1.
Councillor Stewart arrived at 9.50 am and was present for part of discussion on clause 1.
Councillor Dodge retired at 9.52 am and was present for part of discussion on clause 1.
The Committee reports that:
PART A - MATTERS REQUIRING A COUNCIL DECISION
1. RESOURCE CONSENT AND CITY PLAN HEARINGS RR 4071
| Officer responsible | Author |
| Environmental Services Manager | Gabrielle Tasman |
| Corporate Plan Output: Resource Consents and City Plan |
The purpose of this report is to place before the Council the recommendations of the Environmental Committee, following its consideration of a report from a staff process team which has been looking at how we can improve resource consent and city plan hearings for submitters.
PROCESS TEAM
The establishment of a process team was prompted by a number of formal and informal messages from submitters involved in hearings that they felt at a disadvantage to applicants, and that the process could be made more user-friendly.
Some of the changes suggested are quite significant, and will add to the time taken to process applications, and to the costs. Some may argue that the changes could be seen as going too far to help submitters as opposed to applicants.
INTRODUCTION
This is a first report from the Process Team set up to look at ways we could improve our hearing practices with a particular emphasis on assisting submitters. The staff involved in the Team are listed in the attached Appendix 1. Others consulted are also listed.
AREAS OF SUBMITTERS CONCERNS
1. Provision of information prior to hearings.
2. Hearing process.
3. Education/assistance to submitters.
This report looks at these three areas in turn and provides a number of suggestions and recommendations from the Team.
PREAMBLE
We note that some of the concerns of submitters arise from the way in which we currently process resource consents and the Team has endeavoured to respond to these. However we are also aware that some concerns are the result of the provisions of the Resource Management Act itself and are outside the direct control of the Council, although the Environment Committee may consider pursuing a request for amendment of the Act in some instances.
We would also note that a number of submitters believe that decisions should be made in accordance with the view of the majority of the submissions, ie a democratic, rather than a judicial process. This common misunderstanding of the nature of planning hearings will continue to result in some submitters feeling that their point of view was not really listened to, although increasing community education and the provision of skilled advice can assist with this.
A further factor in considering the issues raised by submitters is the existing Resource Management Act context. The Act provides that any person may make an application for an activity which does not comply with the District Plan. The Act also provides that Council may recover actual and reasonable costs of such applications from applicants. Most of the costs of planning hearings are currently borne by applicants, and while they may obtain a benefit from a positive decision, this does not always occur.
PART 1 - PROVISION OF INFORMATION PRIOR TO HEARINGS
At present the applicant and submitters are sent a letter advising of date, time and venue of the hearing, along with a brief outline of the normal hearing procedure. To enable submitters to be more informed before the hearing the Team suggests the following items be implemented.
(1) That two new booklets be produced:
(a) One focusing on the hearing procedure to include information for both applicant and submitters. The type of information to be included in this is summarised in Appendix 2 to this report.
(b) A further guide to making submissions aimed at assisting submitters (both for and against an application). The content of this is also summarised in Appendix 2.
These booklets are to be produced in-house by staff of the Environmental Services Unit and it is suggested that drafts be discussed with a number of submitters and applicants who have raised concerns over this earlier.
(2) Pre-hearing Meetings:
Encourage greater use of pre-hearing meetings as provided for under Section 99 of the Resource Management Act. These meetings are intended to clarify, mediate and facilitate resolution of any matter associated with an application for resource consent. These can be initiated either by the Council or requested by applicants or submitters. One suggestion was that pre-hearings meetings be routinely scheduled for all notified applications. However the willingness of parties to attend is a crucial factor in the success of such meetings. The Team believe that it is more appropriate to encourage planners to actively seek for a pre-hearing meeting and to advise in the letter of notification to those who may be affected that such a meeting will be arranged by the Council, if requested, for clarification or mediation.
Staff are available in the Environmental Services Unit who have already organised and run pre-hearing meetings and there are also other staff who have taken courses in mediation. The Team recommend that pre-hearing meetings be used in many more applications.
The more successful ones have resulted in withdrawals of submissions, concessions being made by applicants to satisfy some submitters, a greater understanding of the other point of view and the application, particularly if it is of a complex nature.
This can lead to a shorter and more amicable hearing. If the internal staff resources are not able to manage the number of pre-hearing meetings it may be necessary to employ outside mediators from time to time. Outside mediators are not only an advantage if staff are overstretched, but may also be perceived by outside parties (both applicants and submitters) as being more impartial. They would be viewed as more independent of the decision making process. However, the use of outside mediators involves additional costs to the Council.
(3) The pre-circulation of reports and evidence:
It has been suggested by both submitters and Council staff, and also raised by Councillor O'Rourke in his notice of motion, that there is earlier pre-circulation of evidence to be presented at the hearing by all parties.
The Environment Court requires all evidence to be exchanged a week before a hearing commences. However, it is clear that there is no such power in the Resource Management Act to enable Councils to require parties, whether applicants or submitters, to pre-circulate evidence prior to a hearing. The Act does however provide that Council Officers reports be sent to applicants and submitters at least three working days before the hearing.
Council Reports:
In regard to Officer reports it is acknowledged that many submitters rely on these so that they can understand why there is a hearing and how the application stands in relation to the provisions of the Plans. The Team recommends that the Planning Reports be available to be sent out with the Notice of Hearing two weeks before the hearing. The advantages of this are:
(a) It would enable submitters and applicants to consult with their lawyers, other experts, the Community Law Centre, or other advisers.
(b) It would give time for submitters to make contact with other submitters and join together on submissions at the hearing if they wished.
(c) It may, in some cases, lead to less evidence being needed to be produced at the hearing by applicants where there is agreement between the Council Officer and applicants. At present there can be much duplication in planning and traffic evidence for example, as applicants usually have to arrange this prior to receiving the Officer's report.
(d) It would enable Residents Groups to have time to meet to formulate their submission in light of the Officer's report.
(e) It would reduce costs, postage and administrative time as there would only need to be one mail out (of the Notice of Hearing and the Officers reports together instead of separately as now occurs).
The disadvantages largely centre around the initial additional workload created for planning staff during the change over period. This could be relieved by having the change implemented over a four month period beginning after the Christmas break and where necessary contracting some report writing out to consultants on a temporary basis.
A further disadvantage may arise out of more pre-hearing meetings being held. Then planning reports may have to be amended or a supplementary report be written following a pre-hearing meeting where there is agreement or amendments are made to an application.
Evidence of Applicant/Submitters:
In regard to pre-circulation of other evidence, both that of the applicant and the submitters, the Team notes that this cannot be required nor did the suggestion that it be requested receive a positive response from lawyers and consultant planners. Wellington City in the past requested applicants evidence to be pre-circulated one week before a hearing, but this has now ceased. Such a request could not be enforced and if made would, in the interests of fairness, need to involve an exchange of evidence from all parties. It is unlikely that in the majority of cases submitters would be in a position to pre-circulate evidence. Many do not provide any written material at all and rely on making a verbal submissions at the hearing. Requiring pre-circulation of written evidence is a formal procedure which may not assist submitters looking for a more "user friendly" procedure. A more effective way of obtaining clarification for submitters would be through a pre-hearing meeting.
Use of Adjournments:
Adjourning hearings to allow submitters to consider evidence from the applicant which has not been pre-circulated could be done when it can be seen to be appropriate and fair. Section 39 of the Resource Management Act requires that the consent authority "shall establish a procedure that is appropriate and fair in the circumstances".
Our legal advice is that it may not be appropriate to use the adjournment procedure on a regular basis, only on those occasions where there may be particular technical evidence produced which had not earlier been provided by the applicant in their assessment of effects. If the Committee considered it wished to pursue pre-circulation it may wish to investigate through a more detailed report seeking an amendment to the Act to enable Councils to require pre-circulation.
It is recommended that Officer reports be sent out with the Notice of Hearing and that this change be implemented during the first four months of 1997.
PART 2 - THE HEARING PROCESS
The Team has a number of suggestions which may assist submitters to feel more comfortable with our hearing procedures. Some of these are administrative improvements which have been discussed and agreed with the Chairperson of the Environment Committee and are reported for information. They include:
The Team also have a number of other recommendations and options for the Environment Committee to consider:
Hearing Times
A matter raised by some submitters was the convenience of hearing times with afternoon or evening hearings being suggested.
Advantages of this would be increased accessibility for some submitters who may have difficulty taking time off work and for others who then could stay for the whole hearing instead of leaving as soon as they had made their submission.
Disadvantages include:
The Team recommends that there be no change to normal hearing times, ie 9.15 am start. However should a reasonable number of submitters request a hearing in the evening or late afternoon, then this could be arranged with the agreement of the Panel. This flexibility of hearing times to be included in the guide to planning hearings booklet.
Order of Proceedings
The Team also suggest a change to the order of proceedings for hearings. At present the applicants are given the choice of presenting their case first or asking the Council Planning Officer to go first. When the Council Officer presents their report first, the applicants are next and then the submitters. This means that submitters may have to wait a considerable time to be heard. The Team recommends that applicants always be asked to present their case, first followed by the submitters (where submissions have been made) and that the Council Officers present their report last. This would enable submitters to often be heard earlier and to know ahead of the hearing when they may be heard.
Photocopying Services
Another area of concern for submitters is their perceived lack of resources compared to the applicant. While other assistance is discussed in Part 3 below, one practical service which can be provided is photocopying facilities. Council staff often make copies of submissions in the middle of a hearing if there are not sufficient for everyone present. However this service could be better managed if parties are offered the service ahead of the hearing day and requested to bring their submissions in earlier to enable copying to be done. Information regarding this service could be included in the information booklet.
The Team recommends that photocopying facilities be offered for submissions to be carried out prior to hearings.
PART 3 - EDUCATION/ASSISTANCE TO SUBMITTERS
A number of submitters and Residents Associations have requested that the Council provide more skilled resources to assist them in Resource Management hearings - a "balancing of the scales" as they see it. A number of ways of achieving this has been suggested. They include:
(a) Increased funding to the Community Law Centre to enable a more comprehensive resource management service to be provided.
(b) The Council employing a community planning adviser to assist residents.
(c) Providing financial assistance to Residents Groups or individuals to assist them in making submissions.
However any decision in regard to any of these options depends upon the Council first clarifying the level and type of assistance it wishes to provide. There is a basic distinction between providing assistance in terms of procedural advice and assistance of an advocacy nature.
Here is a brief summary of these options, including advantages and disadvantages:
(a) Community Law Centre Option
The Council already assists the Community Law Centre with funding ($18,000 per annum from the Environmental Services budget) towards a resource management advice service on Saturday mornings. There have also been recent discussions with the Community Law Centre in regard to extending this service to provide more assistance with the City Plan hearing process.
In September a letter was sent to 90 residents and community groups asking for feedback on:
(i) Resource Management education seminars;
(ii) Extending the current Community Law Centre programme;
(iii) Provision of a community advocate or adviser either employed by the Community Law Centre or by the Council.
There was a positive response from Residents Groups on all three proposals. The Community Law Centre has now provided the attached options paper in Appendix 3. This paper sets out the costs of using the Community Law Centre to provide the three aspects of extended advice and information and education programme and employing a community advocate/adviser.
(b) Council Employed Community Advocate/Adviser
Councillor O'Rourke has requested that the Environmental Committee investigate employing a community advocate or adviser to assist residents in responding to planning applications which may affect them. In discussing this with Councillor O'Rourke he agrees that this role would preferably be one of adviser rather than advocate. An advocate employed directly by the Council to appear for Residents Groups could give rise to a conflict of interest for the Council and may necessitate the wide spread use of Commissioners for hearings.
Such a system operated at Queenstown Lakes District Council until recently. Mr Bill Nagel was employed by a Community Trust which was funded by the Council at a cost of $30,000 per annum. The aim of the Trust was to assist groups and individuals to participate in resource management and Reserve Act processes. Mr Nagel was neither a lawyer nor a planner, but was regarded as a good communicator and had considerable knowledge of the Resource Management Act and procedures. Much of the work he undertook was educational in terms of organising planning workshops, but he also assisted community groups with writing submissions and providing evidence and would appear as advocate at hearings and take cases through to the Planning Tribunal. A small fee of $5.00 per hour was charged for his services.
(c) Direct Financial Assistance
A number of requests have been received from Residents Groups for financial assistance towards resource management costs. The Council has earlier considered this and as a matter of policy, resolved in 1991:
(1) That it shall in general be the Council's policy not to make specific grants to individuals or community groups to assist them in making submissions/appeals on applications or scheme changes under the Resource Management Act 1991. Any exception to that policy shall be by specific resolution of the Environment Committee and only in circumstances where it is warranted in the wider public interest, or because of Council ownership of land, or because of particular circumstances applying.
(2) That this policy shall not debar Community Boards from making grants from their discretionary funds to recognised Residents Groups within their area.
A number of grants have been made to Residents Associations since then.
In looking at these different options the most important consideration is to first establish the level of support the Council considers appropriate. The options described above would give a range of assistance to participants in the Resource Management process. The Team seeks clarification of a number of issues which arise out of the options above and in their view need to be addressed by the Environment Committee before any further investigation and recommendations can be made. The main issues are:
(1) Who is to benefit - this could include Residents Groups, individuals, submitters in opposition, submitters in support, applicants, appellants and other parties in the Environment Court.
(2) The extent of the assistance - general educational seminars, advice on procedures, advice of content of submissions or application, advocacy at hearing level, assistance and/or advocacy at appeal level.
The Team have identified a number of associated matters which can be further investigated once the intentions of the Environment Committee are known. These include:
The Team consider that any further investigation of the options raised needs the guidance of the Environmental Committee as to the level and extent of assistance to be provided.
Recommendation: That the Council adopt the following procedures and processes as guidelines to be followed in dealing with resource consent and City Plan hearings:
PART I - PROVISION OF INFORMATION
PRIOR TO HEARING
1. Pre-Hearing Meetings
That pre-hearing meetings be used in many more applications for resource consents.
2. Officer Reports
That officer reports be sent out with the notice of hearing and this change be implemented during the first four months of 1997.
3. Evidence of Applicant/Submitters
and Use of Adjournments
That officers provide a more detailed report covering:
(a) Matters of fairness and the precirculation of other evidence.
(b) An amendment to the Resource Management Act to enable Councils to require precirculation of evidence.
PART II - THE HEARING PROCESS
1. Hearing Procedures
That hearing procedures be improved through:
(a) New seating arrangements which endeavour to give equal recognition to both applicant and submitters.
(b) Providing appropriate refreshments for the participants in hearings during breaks on a routine basis and not ad hoc as at present.
(c) Ensuring additional administrative support for Second Planner when hearings attended by a large number of submitters.
(d) Submitters and applicant to be welcomed and seating indicated when they arrive at the hearing room.
(e) Change of title for Second Planner as this often causes confusion for participants at hearings. It is suggested that this position now be called "Hearings Adviser" or "Hearings Secretary". The role is to be identified in the new guide to planning hearings booklet and clarified for Panels in elected member training sessions.
(f) On-going training for planners to improve presentation and report writing skills so that reports not only discuss the proposal in terms of the Act, but do so in a more jargon free way to assist submitters and non-professionals to more readily understand the issues.
(g) Chairpersons role - The Chairpersons role is crucial to the successful running of Resource Management hearings and in making submitters feel that they have been properly heard when they leave whatever the outcome. Further training sessions have been arranged for Chairpersons of Panels as the City Plan hearings have resulted in more elected members being needed to take on this responsibility. A list of standard procedures to assist Chairpersons is to be drawn up and sent out with the Agenda papers. This would include:
(i) reminders on the order of proceedings;
(ii) housekeeping matters to mention, such as breaks and refreshments;
(iii) what to include in explaining how the hearing is conducted;
(iv) procedures for site visits;
(v) guidelines for adjournments.
2. Hearing Times
That no change to the normal hearing time of 9.15 am start be made.
3. Order of Proceedings
That applicants always be asked to present their case first, followed by the submitters (where submissions have been made) and that the Council officers present their report last.
4. Photocopying Services
That photocopying facilities be offered to submitters to allow their submissions to be photocopied prior to hearings.
5. Education/Assistance to Submitters
1. That officers prepare a report for consideration by the Committee on providing any additional support to submitters through increased funding to the Community Law Centre, including costings of such resource management service and guidelines for its operation.
2. That the Council seek a change to the legislation to provide for legal aid to be made available from the Government towards the cost of resource management hearings.
6. Training
That the training programme for resource management panel members and staff on resource management processes and issues be continued.
The meeting concluded at 10.33 am
CONSIDERED THIS 26TH DAY OF FEBRUARY 1997
MAYOR