HAWKE’S BAY REGIONAL COUNCIL
Regional
Planning Committee
Wednesday 22 July 2020
Subject: Proposed Plan Change 7
– Hearing Commissioner Appointments
Reason for Report
1. This report
seeks the Committee’s recommendations on appointments to form a Panel of
accredited RMA hearing commissioners to hear submissions made on Proposed Plan
Change 7: Outstanding Water Bodies (Change 7).
2. Change 7 was
publicly notified on 31 August 2019 and proposes a list of outstanding water
bodies in Hawke’s Bay and policies directing how those waterbodies are to
be managed. It is one of a series of workstreams currently being
undertaken to implement the National Policy Statement for Freshwater
Management.
3. This report has
been drafted in response to Recommendation 2.7 by the Regional Planning
Committee at the 3 July 2019 meeting when Change 7 was adopted for
notification, as set out below.
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“Recommendation
2.7: Requests staff identify a shortlist of suitable qualified and experience
Resource Management Act accredited Hearing Commissioners for consideration by
the Regional Planning Committee for appointment to the Hearing Panel to hear
and make recommendations on the proposed Plan Change 7 in response to
submissions and further submissions received”
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Executive Summary
4. Preparation is
being made for a hearing to hear submissions (including further submissions)
lodged on Proposed Plan Change 7. This paper requests the Regional Planning
Committee (the RPC) to identify a list of suitably qualified Hearing
Commissioners, to hear and make recommendations on Proposed Plan Change 7, in
response to submissions received.
5. The rest of the
information in this paper is for information purposes only.
Background
6. In June 2017,
the RPC endorsed an approach co-designed with the RPC tāngata whenua
representatives, to identify outstanding water bodies (OWB) across the region
for inclusion in the Regional Policy Statement (RPS). That change to the
RPS was referred to as ‘Change 7’ or the ‘OWB Plan
Change.’
7. On 31 August
2019, the Council publicly notified Change 7 and invited submissions over a 6
month period. The period for lodging submissions has now closed.
Forty one submissions were received. An overview of the number and nature
of submissions received on Change 7 are set out in Paragraphs 36 and 37.
8. The majority of
submitters had indicated they do wish to be heard. As noted in Table 1, the
summary of submissions is still to be notified seeking further
submissions. Planning staff are making preliminary arrangements for a
hearing of all submissions.
9. In May 2020,
letters were sent to iwi authorities in the region inviting nominations of potential qualified hearing commissioners, with an understanding of
tikanga Māori and
perspectives of local iwi or hapu, who could be considered by the RPC for
appointment onto the Change 7 panel.
Role of RPC
10. Under the RPC’s
current adopted Terms of Reference (2014), the Committee’s functions
include:
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“To recommend
to Council the membership of Hearings Panels, from appropriately trained and
eligible commissioners, to hear and decide upon submissions on Proposed
Regional Plans, Proposed Regional Policy Statements, Plan Variations and Plan
Changes (which may include members of the Committee).”
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11. It is important to note,
that the Council’s Hearings Committee does not have a role in relation to
hearings on RMA planning document matters such as plan changes; that
committee's role is specifically in relation to resource consent hearings.
12. To help inform the RPC
about its choices for recommending RMA plan change hearing panel appointees,
the remainder of this report covers:
12.1 Role of the Panel (i.e. to hear and make
recommendations, or to hear and then make decisions on behalf of the Council)
12.2 Ideal expertise for panellists and size of
panel
12.3 A preliminary ‘snapshot’
summary of the submissions received.
Next steps
13. Table 1 presents
indicative timeframes for progression of Change 7 through the RMA’s
submission and hearing phases.
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Table 1: Indicative dates of key milestones for
Change 7
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2019
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31 August
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Proposed Plan Change 7 publicly notified for submissions
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2020
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28 Feb
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Submissions closed
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May
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Iwi authorities invited to nominate Hearing commissioners who have an
understanding of Tikanga Māori and perspectives of local iwi or hapu
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May/June/July
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Staff summarise submissions received
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July
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RPC consider nominations and select pool of hearing commissioners to
hear submissions on Change 7
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← We are here
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July/August
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Submission summary finalised and notified and further submissions
invited
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August
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Further submissions received (NB: 10 working day submission period)
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August/Sept/Oct
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Staff drafting reports and recommendations on submitters’
requests
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Oct
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Staff reports on submissions published and distributed to Panel &
submitters
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Nov
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Hearings, deliberations and decision making
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Dec
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RPC meeting (NB: required only if Panel is not delegated authority to
hear and decide upon submissions)
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Dec
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Decisions issued
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2021
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Jan/Feb
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Period for lodging appeals to the Environment Court
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March onwards
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Resolution of Environment Court appeals (if any)
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Hearing Panel Membership
14. The size of the Panel may
be as big (or as small) in member numbers as the Council chooses.
However:
14.1. Panel members must be appropriately
trained and eligible (certified) commissioners, which may include members of
the Regional Planning Committee providing there is no conflict of interest (see
Paragraphs 46 to 51) and
14.2. The Chair of the Panel must also possess
Chairs endorsement certification through the Making Good Decisions training
programme.
15. Typically, panels with
larger numbers pose greater logistical challenges than smaller-sized
panels. A total of 3 panellists (2 plus Chair) is recommended by staff
for Change 7.
16. Remuneration of Hearing
Panel members will be in accordance with the Council’s adopted policies
as applicable (e.g. contracting of professional services and also the local
authority member’s remuneration determination).
Hearing Panel Selection
17. Attachment 2 sets out a
number of considerations in Panel selection. Much of the content of the
attachment has been sourced from www.qualityplanning.org.nz
and tailored for plan and policy statement hearings (as opposed to resource
consent hearings).
18. Based on staff’s
assessment of desirable competencies for Change 7’s hearing panellists,
Table 2 presents a list of candidates who have these competencies and have
indicated a preliminary interest in being a Panel member to hear submissions on
Change 7.
19. Subject to their
availability for hearing duties, it is recommended that three commissioners be
chosen from the names set out in Table 2. Attachment 1, sets out a
curriculum vitae for each of these hearing commissioners.
20. Due to exact hearing dates
not yet being known, and subsequent availability of commissioners, staff
recommend that instead of appointing specific individuals to the Panel for
Change 7 now and risk one or more of them becoming unavailable, that the RPC
make recommendations to Council on the following matters:
20.1. The makeup of the Hearing Panel
(Paragraphs 21 to 22)
20.2. The size of the Hearing Panel (Paragraph
15)
20.3. A pool of suitable commissioners, any of
which, the RPC supports to hear submissions on Change 7 (Paragraphs 23 to 29)
20.4. Delegating authority to the Change 7
Hearing Panel to hear and issue decisions on Change 7 (Paragraphs 30 to 34)
20.5. Delegating authority to the Chief
Executive or his nominee to undertake all the necessary operational and
logistical arrangements to establish the Panel and support it in carrying out
its functions (Paragraph 35).
Panel makeup
21. Given the scope, purpose
and issues arising in Change 7, staff consider core competencies of the Panel
collectively would comprise of the following (in no particular order):
21.1. understanding of tikanga Māori,
cultural and spiritual values, and the perspectives of local iwi or hapu
21.2. familiarity with the Hawke's Bay land and
water setting
21.3. relevant experience in values assessments
of outstanding water bodies
21.4. policy development and decision-making in
RMA setting
21.5. at least one member to act as Chair of the
Panel who has a 'Making Good Decisions' chairing endorsement.
22. Given Change 7’s
reasonably high-level policy focus, it is not considered that commissioners
with specific technical or scientific expertise is needed.
Pool of commissioners
23. Table 2, sets out a list
of independent commissioners who have the relevant expertise detailed in
Paragraph 21, and are interested to hear submissions on Change 7.
24. The RPC’s terms of
reference record that members of the Committee may also be eligible for
selection as hearings panel members. In such an instance, the RPC member would
need to be an accredited hearings commissioner, no conflicts of interest, plus
have the relevant experience and expertise to perform the duties of the hearing
panel considering a proposed water plan change (as distinct from experience in
a resource consent context).
25. Staff recommend that the
Change 7 Hearing Panel is made up of 3 panellists, which cover the core competencies
set out in Paragraph 21. Hearing commissioners that have 3 or more of
these core competencies are highlighted in Table 2, below.
26. Staff consider it is
essential for the Change 7 Hearing Panel to have at least one commissioner who
has expertise in tikanga Māori and understands the perspectives of local
iwi and hapu, and two commissioners who have relevant experience in the
assessment of outstanding water bodies, policy development under the RMA and
are familiar with the Hawke’s Bay land and water setting.
27. In May, iwi authorities
were invited to nominate commissioners who have an understanding of tikanga
Māori and perspectives of local iwi/hapū. The nominations
received are recorded in Table 2. For clarification, Kevin Prime, Tina
Porou and Katarina Kawana were nominated by one or more iwi authorities, but
they have subsequently all advised they are unavailable to take part in the
hearings, as such their names have been included in Table 2 with strikeout
text.
28. For the reasons set out in
Paragraph 20, it is recommended that the RPC appoints three panellists, and
several reserve panellists who could be substitutes if one of the three
panellists become unwell, or are unavailable (for example due to other work
commitments). At least one of those three panellists needs to hold a
chairing certificate so that person can fulfil the Panel Chair duties.
29. Of particular note is Dr
Roger Maaka who has been nominated by two iwi authorities in the region and has
all of the core competencies set out in Paragraph 21. Further, Dr Brent
Cowie and Glenice Paine have significant experience in policy development and
meet 3 of the 4 core competencies set out in Paragraph 21.
Table
2: Independent Hearing
Commissioners
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Name
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Relevant Experience
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Nominated by iwi authority
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Chair Certificate
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Commissioners
- understanding of Tikanga Māori and perspectives of local iwi and
hapu
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Dr
Roger Maaka
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Tikanga Māori and
perspectives of local iwi and hapu
Local, familiar with the
Hawke’s Bay land and water setting
Relevant experience in
values assessments and the identification of outstanding freshwater bodies in
an RMA setting
Policy development and
decision-making in RMA setting
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Mana Ahuriri &
Te Kotahitanga o
Tuwharetoa
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No
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Kevin
Prime
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Tikanga Māori
and perspectives of local iwi and hapu
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Te Kotahitanga o
Tuwharetoa
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No
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Katarina
Kawana
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Tikanga Māori
and perspectives of local iwi and hapu
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Kahungunu Executive
ki Te Wairoa Charitable Trust
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No
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Glenice
Paine
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Tikanga Māori and
perspectives of local iwi and hapu
Relevant experience in
values assessments for outstanding freshwater bodies
Policy development and
decision-making in RMA setting
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Maungaharuru-Tangitu
Trust
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No
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Rawiri
Faulkner
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Tikanga Māori and
perspectives of local iwi and hapu
Policy development and
decision-making in RMA setting
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Maungaharuru-Tangitu
Trust
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No
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Tina
Porou
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Tikanga Māori
and perspectives of local iwi and hapu
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Te Kōpere o te
iwi o Hineuru Trust
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No
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Liz
Palmer
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Tikanga Māori and
perspectives of local iwi and hapu
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Tatau Tatau o te Wairoa
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No
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Tui
Warmenhoven
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Tikanga Māori and
perspectives of local iwi and hapu
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Te Kōpere o te iwi
o Hineuru Trust
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No
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Antoine
Coffin
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Tikanga Māori
Policy development and
decision-making in RMA setting
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No
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Yes
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Rauru
Kirikiri
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Tikanga Māori
Policy development and
decision-making in RMA setting
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No
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No
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Commissioners
- experience: outstanding water bodies assessments, RMA policy development,
familiar with Hawke's Bay land and water setting
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Andrew
Fenemor
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Policy development and
decision-making in RMA setting
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No
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Yes
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Dr
Brent Cowie
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Familiar with the
Hawke’s Bay land and water setting
Relevant experience in
values assessments for outstanding freshwater bodies
Policy development and
decision-making in RMA setting
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No
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Yes
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Mark
Farnsworth
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Policy development and
decision-making in RMA setting
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No
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Yes
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Greg
Ryder
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Policy development and
decision-making in RMA setting
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No
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Yes
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Christine Scott
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Local, familiar with the
Hawke’s Bay land and water setting
Policy development and
decision-making in RMA setting
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No
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Yes
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Delegating authority to the
Hearing Panel to hear and issue decisions on Change 7
30. Later this year, the
appointed Hearing Panel will receive presentations from those submitters who
wish to speak to their written submissions. After the hearings, the
Hearing Panel will complete its deliberations.
31. After deliberations, the
Hearing Panel can either forward its recommendations to the RPC, and Council
will issue decisions on Change 7 (including reasons for accepting or rejecting
submissions), or the RPC can delegate authority to the Change 7 Hearing Panel
to issue decisions on their behalf. In both cases, the Panel will need to
provide clear reasons in its report for accepting or rejecting submissions.
32. If the RPC prefers that
the Hearing Panel make recommendations back to the RPC, instead of decisions on
Change 7, it is important to note that the Hearing Panel’s
recommendations cannot be materially changed, unless the RPC arranges to
re-hear submissions on Change 7. The principle of ‘natural
justice’ is applicable here.
33. Either way, after
decisions have been issued, submitters then have the right to appeal the
decisions on their submissions to the Environment Court.
34. Senior planning staff
recommend that RPC delegate authority to the Hearing Panel to hear and issue
decisions on Change 7. This will ensure the provisions in Change 7 can be
taken into account during the Change 9 (TANK) hearings process. This
recommendation presumes that the RPC will be comfortable with the pool of
commissioners set out in Table 2.
Delegating authority to the Chief
Executive to establish the panel
35. Senior planning staff
recommend the RPC delegate authority to the Chief Executive or his nominee to
undertake all the necessary operational and logistical arrangements to
establish the Panel, including replacing a commissioner should they become
unavailable (see Recommendation 2.3), and support it in carrying out its
functions in a timely and cost-efficient manner.
Snapshot of submissions received
36. The submission period
closed on 28 March 2020. A total of 41 submissions were received from a
range of groups and individuals. Staff have completed a preliminary
stock-take of those submissions and are currently summarising the detailed
points made in those submissions received.
37. Based on that preliminary
work, a broad range of submissions have been received on Change 7, most of
which generally support the intent of the plan change, while requesting
specific amendments to the content of the plan change. Figure 1 is an
indicative illustration of generic themes to which the submission points
relate. Copies of the finalised summary will be separately circulated to
Committee members when it is completed.
Figure
1:
Considerations of Tangata Whenua
38. Tāngata whenua have
special cultural, spiritual, historical and traditional associations with
freshwater. A number of the hearing commissioners identified in Table 2
have a good understanding of tikanga Māori and cultural and spiritual
values relating to water bodies.
39. As discussed in Paragraph
21, it is recommended that at least one of these commissioners are on the
hearing panel for Change 7. This will ensure that the Hearing Panel has
appropriate expertise in this area.
Financial and Resource Implications
40. Preparation of Change 7
and progressing Change 7 through the submission and hearings phases is provided
for in Project 192 (Strategy and Planning).
41. No additional external
expenditure budget is needed at this time in relation to the RPC’s choice
of a small number of Hearing Panel members. It is expected that the
Hearing Panel would conduct its duties in a manner that is commensurate with
the issues raised and their complexity, while not unnecessarily incurring
lengthy delays or additional ancillary expenses on HBRC or other parties.
42. Internal staff time to
support the hearing phase is catered for within existing budgets, and
remuneration for the hearing commissioners will be in accordance with
Council’s adopted policies as applicable to RMA plan hearing panels.
43. Any substantial additional
resourcing needs may be addressed through reviewing other workstreams and/or
the Long Term Plan process (for example, if there are Environment Court
appeals).
Strategic Fit
44. The OWB plan change is
necessary to give effect to the NPSFM requirements with respect to the
identification and protection of OWBs, and Policy LW1A of the Hawke’s Bay
Regional Resource Management Plan
45. It contributes directly
towards achieving two of Council’s four strategic outcomes: Outcome 1
water quality, safety and climate-resilient security, and Outcome 3: Healthy
functioning and climate-resilient biodiversity.
Conflict of interest for persons appointed
to hearings panels
46. As noted in Paragraph 14,
it is possible that one or more members of the RPC could be chosen as hearing
panelists. However, good practice guidance says members must maintain a
clear separation between their personal/business interests and their duties as
appointed members. This is to ensure that people who fill positions of
authority carry on their duties free from bias (whether real or perceived).
47. Conflicts of interest are natural and unavoidable in some cases.
The existence of a conflict of interest does not need to cause problems.
It just needs to be identified and managed carefully.
48. Conflicts of interest can
include financial and non-financial interests, which may be directly or
indirectly involve a financial gain or loss, or give rise to a perception of
conflict arising from direct family relationships or wider employment or
community relationships.
49. Where a conflict of
interest is established, members must take no part in the discussion of the
matter or the decision (voting). In a case of doubt a member should
withdraw from the discussion and ensure that their actions are minuted.
50. The Council's standing
orders are set out in Attachment 3. Sections 19.7 and 19.8 set out the code of
conduct for members around conflicts of interest.
51. This means an extra degree
of care needs to be exercised if the RPC is inclined to appoint one or more of
its own members to the Change 7 hearings panel. Allegations of real and
even perceived conflicts or potential bias in decision-making can cause
procedural challenges and delays.
Decision Making
Process
52. Council is required to
make every decision in accordance with the requirements of the Local Government
Act 2002 (the Act). Staff have assessed the requirements in relation to this
item and have concluded:
52.1. The decision does not significantly alter
the service provision or affect a strategic asset
52.2. The use of the consultative procedure is
prescribed under the RMA
52.3. The decision does not fall within the
definition of Council’s policy on significance
52.4. The persons affected by
this decision are all persons with an interest in the region’s management
of water resources under the RMA. Those persons have had an opportunity to make
a submission on proposed Plan Change 7’s content after it was publicly
notified in August 2019.
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Recommendations
1. That the Regional Planning Committee receives and notes the
“Change 7 - Appointment of Hearing
Commissioners”
staff report.
2. The Regional Planning Committee recommends that Hawke’s Bay
Regional Council:
2.1. For the Change 7 hearings, appoints the following person as a
Commissioner who has a good understanding of Tikanga Māori , cultural
and spiritual values, and the perspectives of local iwi or hapu:
2.1.1. Commissioner ‘A’: <Dr Roger Maaka>
2.2. For the Change 7 hearings, appoints the
following two people as a Commissioner, who has experience in RMA policy development, outstanding values assessments and is familiar
with the setting in Hawke’s Bay.
2.2.1. Commissioner ‘B’:<Glenice Paine> * also Tikanga Māori
2.2.2. Commissioner ‘C’:<Dr Brent Cowie> *Chair Certificate
2.3. For the Change 7 hearings, agrees that the
following three people are Reserve Commissioners:
2.3.1. Commissioner ‘D’: <Rawiri Faulkner>
2.3.2. Commissioner ‘F’: <Liz Palmer>
2.3.3. Commissioner ‘G’: <Christine Scott>*Chair Certificate
2.4. Delegates authority to the Change 7 Hearing Panel to hear and issue
decisions on the Council’s behalf relating to submissions received on
Proposed Plan Change 7.
3. Delegates authority to the Chief Executive or his nominee
to undertake all the necessary operational and logistical arrangements to
establish the Panel, including replacing a commissioner should they become
unavailable, and support it in carrying out its functions in a timely and
cost-efficient manner.
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Authored by:
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Belinda
Harper
Senior Planner
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Approved by:
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Ceri Edmonds
Acting Group Manager Strategic Planning
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Attachment/s
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⇩1
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CV - Coffin,
Antoine
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⇩2
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CV - Cowie,
Brent
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⇩3
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CV -
Farnsworth, Mark
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⇩4
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CV -
Faulkner, Rawiri
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⇩5
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CV - Fenemor,
Andrew
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⇩6
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CV -
Kirikiri, Rauru
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⇩7
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CV - Maaka,
Roger Dr
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⇩8
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CV - Paine,
Glenice
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⇩9
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CV - Palmer,
Liz
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⇩10
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CV - Ryder,
Greg
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⇩11
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CV - Scott,
Christine
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⇩12
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CV -
Warmenhoven, Tui
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⇩13
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A guide to
selecting commissioners for plan and policy statement hearings
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⇩14
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Standing
Orders Sections 19.7 and 19.8
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