Extraordinary Meeting of the Regional Planning Committee
Date: Wednesday 22 July 2020
Time: 1.30pm
Venue: |
Council Chamber Hawke's Bay Regional Council 159 Dalton Street NAPIER |
Agenda
Item Title Page
1. Welcome/Notices/Apologies
2. Conflict of Interest Declarations
3. Confirmation of Minutes of the Regional Planning Committee held on 3 June 2020
Decision Items
4. Proposed Plan Change 7 – Hearing Commissioner Appointments 3
Information or Performance Monitoring
5. Verbal Update on the Tukituki Plan Change 6A Process
Parking
There will be named parking spaces for Tangata Whenua Members in the HBRC car park – entry off Vautier Street.
Regional Planning Committee Members
Name |
Represents |
Karauna Brown |
Te Kopere o te Iwi Hineuru |
Tania Hopmans |
Maungaharuru-Tangitu Trust |
Tania Huata |
Ngati Pahauwera Development and Tiaki Trusts |
Nicky Kirikiri |
Te Toi Kura o Waikaremoana |
Joinella Maihi-Carroll |
Mana Ahuriri Trust |
Mike Mohi |
Ngati Tuwharetoa Hapu Forum |
Liz Munroe |
Heretaunga Tamatea Settlement Trust |
Peter Paku |
Heretaunga Tamatea Settlement Trust |
Apiata Tapine |
Tātau Tātau o Te Wairoa |
Rick Barker |
Hawke’s Bay Regional Council |
Will Foley |
Hawke’s Bay Regional Council |
Craig Foss |
Hawke’s Bay Regional Council |
Rex Graham |
Hawke’s Bay Regional Council |
Neil Kirton |
Hawke’s Bay Regional Council |
Charles Lambert |
Hawke’s Bay Regional Council |
Hinewai Ormsby |
Hawke’s Bay Regional Council |
Martin Williams |
Hawke’s Bay Regional Council |
Jerf van Beek |
Hawke’s Bay Regional Council |
Total number of members = 18
Quorum and Voting Entitlements Under the Current Terms of Reference
Quorum (clause (i))
The Quorum for the Regional Planning Committee is 75% of the members of the Committee
At the present time, the quorum is 14 members (physically present in the room).
Voting Entitlement (clause (j))
Best endeavours will be made to achieve decisions on a consensus basis, or failing consensus, the agreement of 80% of the Committee members present and voting will be required. Where voting is required all members of the Committee have full speaking rights and voting entitlements.
Number of Committee members present Number required for 80% support
18 14
17 14
16 13
15 12
14 11
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” |
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).” |
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.
Table 1: Indicative dates of key milestones for Change 7 |
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2019 |
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31 August |
Proposed Plan Change 7 publicly notified for submissions |
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2020 |
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28 Feb |
Submissions closed |
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May |
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 |
Staff summarise submissions received |
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July |
RPC consider nominations and select pool of hearing commissioners to hear submissions on Change 7 |
← We are here |
July/August |
Submission summary finalised and notified and further submissions invited |
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August |
Further submissions received (NB: 10 working day submission period) |
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August/Sept/Oct |
Staff drafting reports and recommendations on submitters’ requests |
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Oct |
Staff reports on submissions published and distributed to Panel & submitters |
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Nov |
Hearings, deliberations and decision making |
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Dec |
RPC meeting (NB: required only if Panel is not delegated authority to hear and decide upon submissions) |
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Dec |
Decisions issued |
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2021 |
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Jan/Feb |
Period for lodging appeals to the Environment Court |
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March onwards |
Resolution of Environment Court appeals (if any) |
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
Name |
Relevant Experience |
Nominated by iwi authority |
Chair Certificate |
Commissioners - understanding of Tikanga Māori and perspectives of local iwi and hapu |
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Dr Roger Maaka |
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 |
Mana Ahuriri &
Te Kotahitanga o Tuwharetoa
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No |
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Glenice Paine |
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 |
Maungaharuru-Tangitu Trust |
No |
Rawiri Faulkner |
Tikanga Māori and perspectives of local iwi and hapu Policy development and decision-making in RMA setting |
Maungaharuru-Tangitu Trust |
No |
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Liz Palmer |
Tikanga Māori and perspectives of local iwi and hapu
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Tatau Tatau o te Wairoa |
No |
Tui Warmenhoven |
Tikanga Māori and perspectives of local iwi and hapu
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Te Kōpere o te iwi o Hineuru Trust |
No |
Antoine Coffin |
Tikanga Māori Policy development and decision-making in RMA setting |
No |
Yes |
Rauru Kirikiri |
Tikanga Māori Policy development and decision-making in RMA setting |
No |
No |
Commissioners - experience: outstanding water bodies assessments, RMA policy development, familiar with Hawke's Bay land and water setting |
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Andrew Fenemor |
Policy development and decision-making in RMA setting |
No |
Yes |
Dr Brent Cowie |
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 |
No |
Yes |
Mark Farnsworth |
Policy development and decision-making in RMA setting |
No |
Yes |
Greg Ryder |
Policy development and decision-making in RMA setting |
No |
Yes |
Christine Scott |
Local, familiar with the Hawke’s Bay land and water setting Policy development and decision-making in RMA setting |
No |
Yes |
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.
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:
Belinda Harper Senior Planner |
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Approved by:
Ceri Edmonds Acting Group Manager Strategic Planning |
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⇩1 |
CV - Coffin, Antoine |
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⇩2 |
CV - Cowie, Brent |
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⇩3 |
CV - Farnsworth, Mark |
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⇩4 |
CV - Faulkner, Rawiri |
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⇩5 |
CV - Fenemor, Andrew |
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⇩6 |
CV - Kirikiri, Rauru |
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⇩7 |
CV - Maaka, Roger Dr |
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⇩8 |
CV - Paine, Glenice |
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⇩9 |
CV - Palmer, Liz |
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⇩10 |
CV - Ryder, Greg |
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⇩11 |
CV - Scott, Christine |
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⇩12 |
CV - Warmenhoven, Tui |
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⇩13 |
A guide to selecting commissioners for plan and policy statement hearings |
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⇩14 |
Standing Orders Sections 19.7 and 19.8 |
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