Agenda of Hearings Committee - Wednesday, 23 June 2021

HAWKE’S BAY REGIONAL COUNCIL

Hearings Committee

Wednesday 23 June 2021

Subject: Hearings Committee Terms of Reference and Associated Delegations

Reason for Report

1. This item provides the Hearings Committee with clarification of the role of the Committee and its delegations as well as enabling a wider review and consideration of the Terms of Reference.

Executive Summary

2. The Hearings Committee is required to appoint commissioners to hearing panels.

3. Clarification was sought from members regarding their ability to appoint members on panels which may include themselves and for which they will be paid. The Local Authorities (Member’s Interest) Act 1968 provides for this to occur. The Act, instructs that members must not take part in the discussion of or vote on, any matter before the local authority in which they may have a financial interest while providing an exception under Section 6(3)(c).

4. It is recommended that the Terms of Reference be amended to include these provisions and make clear the exceptions that apply. In reviewing the Terms of Reference other matters have been noted and recommended for amendment or inclusion.

Strategic Fit

5. The Hearings Committee has the role of appointing hearing panels to hear and decide resource consent applications that are notified and subject to submissions. This is an important process in the allocation and management of natural and physical resources and is a core function of the Regional Council. The Hearings Committee is also able to hear objections of applicants to staff decisions or to costs, or to appoint commissioners to do this.

Background/Discussion

6. The Hearings Committee has operated to appoint hearing panel members since the Regional Council was established. The Terms of Reference has not changed significantly over the past 10 years.

7. The Terms of Reference sets out the functions and duties that are delegated to the Hearings Committee. These include the hearing of, and/or the appointment of hearing commissioners to hear resource consent applications. The practice has been for the Hearings Committee to appoint a hearing panel rather than to convene the Hearings Committee to hear applications as a Committee. Over the past 10 years hearing panels have been made up of a mix of Councillors, appointees from the Māori or Regional Planning Committee and independent commissioners.

8. When appointing members to a panel, the question of pecuniary interest has not been raised in the past. There have been cases where the Chairperson has participated in the decision to appoint a panel that has included themselves.

9. The remuneration of Councillors (elected members) appointed to a hearing panel is regulated by the Remuneration Authority. A maximum rate has been fixed for the Chairperson and for panel members where they are members of the Council.

Discussion

10. The key issue raised is whether it is appropriate for a person to attend and partake in a decision that will appoint themselves to a hearing panel.

11. The Local Authorities (Member’s Interest) Act 1968 addresses conflicts of interest and indicates when Councillors should not participate in decisions and what exclusions apply to this.

12. Section 6(3)(c) of the Act states that the prohibition against discussing or voting where a member may be paid for serving on the panel does not apply where the matter under discussion is:

12.1. “an election or appointment of a member of the local authority to any office, notwithstanding that any remuneration or allowance is or may be payable in respect of that office.”

13. Given this exclusion it is appropriate that Hearings Committee members can participate in decisions involved in appointing a hearing panel that may include themselves. This has been confirmed in advice from the Auditor General’s Office.

14. It is proposed to amend the Terms of Conditions to make this clear by adding a footnote that Officers believe will allow Councillors to participate in decisions including the appointment of themselves to a hearing panel; being:

14.1. NOTE: While the Local Authorities (Members Interest) Act 1968 requires Councillors not to participate in decisions where they will receive a financial benefit, Section 6(3)(c) of the Local Authorities (Member’s Interests) Act 1968 provides for exceptions to this rule, stating “an election or appointment of a member of the local authority to any office, notwithstanding than any remuneration or allowance is or may be payable in respect of that office.”

15. In reviewing the Terms of Reference other changes are also proposed. These are related to:

15.1 the hearing of objections

15.2 the delegation of authority to settle appeals and references through conferences and alternative dispute resolution processes.

16. With regard to the hearing of objections, an applicant may object to a number of decisions made by officers and to the imposition of additional charges. The Hearings Committee is able to hear or appoint commissioners to hear these. Not all sections of the Act that provide for these circumstances have been listed. It is proposed that the missing sections be added as follows.

16.1. 1.4. objections to decisions made under delegated authority by staff, where they applicant wishes to be heard (s.357, s357A, s357AB, s357B, s357C, s357CA and s 357D)

17. The Council does not receive a large number of objections and generally they are minor matters that officers endeavour to resolve first. If they are not resolved they must be heard. These objections are to be considered as soon as reasonably practical. To enable this to occur quickly it is proposed that the terms of reference be amended to provide for the Chairperson to hear these alone without the need to convene a Hearings Committee meeting to make the appointment. The following amendment is proposed:

17.1. 1.7. To authorise the Hearings Committee Chairperson to hear and decide objections made under s.357, s357A or s357B in accordance with s357C and s 357D.

18. When applications go to appeal it is common for the parties to be directed to carry out conferencing or Alternative Dispute Resolution such as mediation. Parties attending are expected to have authority to make decisions on behalf of the person or organisation that they represent. This has not always been clear in the Regional Councils case and it is proposed that this be provided for through the Terms of Reference and/or by the staff delegations.

19. The following amendment is proposed to the Terms of Reference:

19.1. 1.6. To authorise the resolution and settlement of appeals and references through formal hearings or mediation before the Environment Court or any other judicial body which relate to resource consent applications and to either generally or from time to time delegate to officers the authority to resolve and settle appeals and references through conferencing and formal mediation (RMA s267 and s268A).

20. The following subsequent amendment is proposed to the Delegation Register as well.

Section	Description of function, power, or duty	Delegated To
Section	Description of function, power, or duty	CE	GMPR	MC	TLC	SCP	CP	CAdm	CAdv
267	Decide on matters arising at a conference	D	D	D	D
268A	Decide on matters arising at Alternative dispute resolution processes (ADR)	D	D	D	D

21. If the change is made to the delegations Register it may not be necessary to include this in the Terms of Reference, unless there are circumstances when the Hearings Committee wishes to hold this delegation.

22. There is an error in the Terms of References in clause 2. This refers to s82 of the Biosecurity Act. This should be s72.

Decision Making Process

23. Council and its committees are 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:

23.1. The decision does not significantly alter the service provision or affect a strategic asset, nor is it inconsistent with an existing policy or plan.

23.2. The use of the special consultative procedure is not prescribed by legislation.

23.3. The decision is not significant under the criteria contained in Council’s adopted Significance and Engagement Policy.

23.4. The persons affected by this decision are all persons with an interest in the region’s management of natural and physical resources under the RMA.

23.5. Given the nature and significance of the issue to be considered and decided, and also the persons likely to be affected by, or have an interest in the decisions made, Council can exercise its discretion and make a decision without consulting directly with the community or others having an interest in the decision.

Recommendations

1. That the Hearings Committee receives and considers the “Hearings Committee Terms of Reference and Associated Delegations” staff report.

2. That the Hearings Committee recommends that Hawke’s Bay Regional Council:

2.1. Agrees that the decisions to be made are not significant under the criteria contained in Council’s adopted Significance and Engagement Policy, and that Council can exercise its discretion and make decisions on this issue without conferring directly with the community or persons likely to have an interest in the decision.

2.2. Amends the Terms of Reference for the Hearings Committee as tracked in the attached document to:

2.2.1. add a footnote to 1.5. referring to the Local Authorities (Members Interest) Act 1968

2.2.2. amend 1.1.4. to reference additional sections of the act that provide for objections to resource consent decisions

2.2.3. add clause 1.7. to provide for the Hearings Committee Chairperson to hear objections lodged by applicants to staff decisions and to costs

2.2.4. add clause 1.6 to authorise the settlement of appeals and references through conferencing or alternative dispute resolution (if required)

2.2.5. amend clause 2 to refer to s72.

Authored by:

Malcolm Miller

Manager Consents

Approved by:

Katrina Brunton

Group Manager Policy & Regulation

Attachment/s

1 ⇩

Proposed Hearings Committee Terms of Reference

HAWKE’S BAY REGIONAL COUNCIL

Hearings Committee

Wednesday 23 June 2021

Subject: Delegation Register – Resource Management Act 1991 and its Amendments

Reason for Report

1. This item informs the Committee of the current delegations that are provided to staff for processing and deciding on resource consents under the Resource Management Act and provides an opportunity to review and update these. An amendment has been proposed in the report on the Hearings Committee Terms of Reference.

Executive Summary

2. The process of receiving processing and issuing consents under the RMA requires a lot of decisions to be made along the way. Council staff have been delegated a number of powers, duties and functions to enable the effective and timely processing of resource consent applications.

3. These delegations are made under s34A(1) of the RMA. They are delegations from the Council. They cannot be sub-delegated. The delegations are recorded in the Delegation Register. This was updated in September 2018.

4. This item provides an opportunity for the Hearings Committee to review these delegations and for staff to recommend any amendments to update the Delegation Manual.

Strategic Fit

5. The Council has functions and duties under the Resource Management Act. These include the consenting function to enable the allocation and use of natural and physical resources and the management of the effects of activities on the environment. The consenting of activities is necessary, in order to contribute to a healthy environment, a vibrant community and a prosperous economy. An effective and efficient approach to the consenting process is important.

Background

6. The delegations are made under RMA S34A(1). These allow staff to carry out the day to day processing of resource consents.

Discussion

7. Some changes have occurred since the Delegation Register was last approved in September 2018.These include changes to staff titles.

8. The following changes are recommended.

8.1. Amend Group Manager Regulations to Group Manager Policy and Regulation and change the abbreviation to GMRP.

8.2. Amend Principal Consents Officer to Team Leader Consents and change the abbreviation to TLC

8.3. Add the position of Engineering Officer Schemes to recognise the staff level at which gravel consents are isued

8.4. Amend 36AB(1) to 36AAB(1)

8.5. Add delegations to provide for Environment Court conferencing and Alternative Dispute Resolution

8.6 Add delegation decision on fixing a notice to a site. (Resource Management (Forms, Fees, and Procedure) Regulations 2003) - Regulation 10A.

Decision Making Process

9. Council and its committees are 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:

10. The decision does not significantly alter the service provision or affect a strategic asset, nor is it inconsistent with an existing policy or plan.

10.1. The use of the special consultative procedure is not prescribed by legislation.

10.2. The decision is not significant under the criteria contained in Council’s adopted Significance and Engagement Policy.

10.3. The persons affected by this decision are all persons with an interest in the region’s management of natural and physical resources under the RMA.

11. Given the nature and significance of the issue to be considered and decided, and also the persons likely to be affected by, or have an interest in the decisions made, Council can exercise its discretion and make a decision without consulting directly with the community or others having an interest in the decision.

Recommendation

1. That the Hearings Committee receives and considers the “Delegation Register – Resource Management Act 1991 and its Amendments - Update” staff report.

2. The Hearings Committee recommends that Hawke’s Bay Regional Council:

2.1 Agrees that the decisions to be made are not significant under the criteria contained in Council’s adopted Significance and Engagement Policy, and that Council can exercise its discretion and make decisions on this issue without conferring directly with the community or persons likely to have an interest in the decision.

2.2 Amends the Delegations Register to:

2.2.1 Change Group Manager Regulation to Group Manager Policy and Regulation and change the abbreviation to GMRP

2.2.2 Change Principal Consents Officer to Team Leader Consents and change the abbreviation to TLC

2.2.3 Add the position of Engineering Officer Schemes to recognise the staff level at which gravel consents are issued

2.2.4 Change 36AB(1) to 36AAB(1)

2.2.5 Add delegations to provide for Environment Court conferencing and Alternative Dispute Resolution

2.2.6 Add delegation for fixing a notice to a site (Resource Management (Forms, Fees, and Procedure) Regulations 2003) - Regulation 10A.

Authored by: Approved by:

Malcolm Miller

Manager Consents

Katrina Brunton

Group Manager Policy & Regulation

Attachment/s

1 ⇩

Recommended Amendments to Consents Delegations for 2021

HAWKE’S BAY REGIONAL COUNCIL

Hearings Committee

Wednesday 23 June 2021

Subject: Appointment of an Additional Commissioner for the Omaranui Landfill Expansion Hearing

Reason for Report

1. This item provides the means for appointing a Māori representative to the Hearing Panel to consider and decide on resource consent applications and a notice of requirement for the proposal to expand the Omarunui landfill.

Officers’ Recommendation(s)

2. Council officers seek the Committee’s confirmation of a person with an understanding of tikanga Māori and of the perspectives of local iwi or hapū from amongst the potential candidates provided.

Executive Summary

3. A Māori representative is proposed to be appointed to the Hearing Panel to jointly hear and decide on the resource consent applications and the notice of requirement to expand the Omarunui Landfill.

4. A suitable recommendation from Tangata Whenua members of the Committee is to be provided for appointment by the Hearings Committee.

Options Assessment

5. This matter needs to be heard as per the provisions of the RMA. A Hearing Panel needs to be appointed to do this as submitters wish to be heard.

Strategic Fit

6. HBRC has a functional duty to implement and enforce and its regional plan in accordance with the provisions of the RMA. The Council’s Strategic Plan identifies sustainable and climate-resilient services and infrastructure as a priority area.

Considerations of Tangata Whenua

7. Tangata whenua are submitters to the applications. This process allows for a panel member with an understanding of tikanga Māori and of the perspectives of local iwi or hapū to be appointed to sit on the panel.

Financial and Resource Implications

8. The cost of this Hearing will be borne by the applicants.

Decision Making Process

9.1. The decision does not significantly alter the service provision or affect a strategic asset, nor is it inconsistent with an existing policy or plan.

9.2. The use of the special consultative procedure is not prescribed by legislation.

9.3. The decision is not significant under the criteria contained in Council’s adopted Significance and Engagement Policy.

9.4. The persons affected by this decision are all persons with an interest in the region’s management of natural and physical resources under the RMA.

10. Given the nature and significance of the issue to be considered and decided, and also the persons likely to be affected by, or have an interest in the decisions made, Council can exercise its discretion and make a decision without consulting directly with the community or others having an interest in the decision.

Recommendations

That the Hearings Committee:

1. Receives and notes the “Appointment of an Additional Commissioner for the Omaranui Landfill Expansion Hearing” staff report.

2. Agrees that the decisions to be made are not significant under the criteria contained in Hawke’s Bay Regional Council’s adopted Significance and Engagement Policy, and that the Committee can exercise its discretion and make decisions on this issue without conferring directly with the community or persons likely to have an interest in the decision.

3. Appoints _________________________ as a commissioner to the Hearing Panel to hear the resource consent applications required to undertake activities and discharges associated with the construction and operation of Area B of the Omarunui Landfill (APP-125003).

Authored by:

Malcolm Miller

Manager Consents

Approved by:

Katrina Brunton

Group Manager Policy & Regulation

Attachment/s

There are no attachments for this report.

HAWKE’S BAY REGIONAL COUNCIL

Hearings Committee

Wednesday 23 June 2021

Subject: Appointment of Hearing Panel for the Clive River Dredging Resource Consent Applications

Reason for Report

1. The Assets Group of HBRC has applied for consents to dredge the Clive River and discharge the dredged material to the coastal marine area (CMA). That application is likely to proceed to a formal hearing and as such, there is a need to have a Hearing Panel appointed ready to consider and decide on the resource consent applications.

Officers’ Recommendations

2. Council officers recommend that the Committee appoints three commissioners to hear and decide the applications lodged by the HBRC Asset Management Group (APP) to dredge the Clive River. One person with RMA expertise; one person with expertise/experience in river process and river ecosystems; and one person with an understanding of tikanga Māori and of the perspectives of local iwi or hapū. In this case because the applicant is HBRC, it is considered that the commissioners should not be HBRC councillors or Hearings Committee members.

3. There is a similar panel appointed to hear the HBRC gravel take consents. It is proposed that this same panel be convened to hear this application.

4. The following commissioners are recommended:

4.1. Paul Cooney (Chair)

4.2. Dr Malcolm Green

4.3. Rau Kirikiri.

Executive Summary

5. The application to dredge the Clive River has been in process for some time and is currently on hold for further information, mainly an assessment of cultural values. At the same time, there is also increasing pressure from the users of the Clive River to get the consent process concluded and the works undertaken as quickly as possible.

6. The appointment of a Hearings Panel is proposed now to ensure the Council’s regulatory functions are not causing any further delays to the consent process and that preparations are in place for the likely scenario that a hearing is needed.

Background /Discussion

7. HBRC Assets Management Group is proposing dredge the lower end of the Clive River and to discharge the dredged material onto the foreshore and into the CMA.

8. Resource consents are required for these activities. More information has been requested from the applicant and this may take some time and may delay the work. The applicant has the option of pressing on without all the information by declining to provide it and /or by requesting the notification of the application and having it proceed to a hearing.

9. In anticipation of the applicant requesting notification and proceeding to a Hearing, it is proposed to appoint a hearings panel. A suitable panel has already been appointed to hear the HBRC Gravel consents.

Options Assessment

10. If a resource consent application is notified and submissions are made, unless the submitters’ issues can be resolved informally there will be a need for a hearing. The Hearing Panel should comprise members with experience and expertise relative to the issues arising from the proposal.

Strategic Fit

11. HBRC has a functional duty to implement and enforce its Regional Plan in accordance with the provisions of the RMA. The Council’s Strategic Plan vision is a healthy environment, a vibrant community and a prosperous economy. The works proposed will enable the use of the lower river for recreation and other activities. The effects of the work will need to be assessed against the policies of the plan and considered in light of any submissions that are made.

Significance and Engagement Policy Assessment

12. HBRC Assets Management Group staff have engaged and consulted with parties as the proponent of the dredging works. This phase is a process carried out under RMA. Opportunity for involvement is provided through the notification, submission and hearing processes.

Climate Change Considerations

13. Climate change matters can be considered in the process of the hearing.

Considerations of Tangata Whenua

14. The activity will impact on tangata whenua interests and values and tangata whenua are likely to be submitters to the applications. A panel member with an understanding of tikanga Māori and of the perspectives of local iwi or hapū has been recommended to sit on the panel.

Financial and Resource Implications

15. The costs of this Hearing will be borne by HBRC as the applicant.

Decision Making Process

16. Council and its committees are 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:

16.1. The decision does not significantly alter the service provision or affect a strategic asset, nor is it inconsistent with an existing policy or plan.

16.2. The use of the special consultative procedure is not prescribed by legislation.

16.3. The decision is not significant under the criteria contained in Council’s adopted Significance and Engagement Policy.

16.4. The persons affected by this decision are all persons with an interest in the region’s management of natural and physical resources under the RMA and particularly those with an interest in the Clive River and environs.

16.5. Given the nature and significance of the issue to be considered and decided, and also the persons likely to be affected by, or have an interest in the decisions made, Council can exercise its discretion and make a decision without consulting directly with the community or others having an interest in the decision.

Recommendations

That the Hearings Committeel:

1. Receives and considers the “Appointment of Hearing Panel for the Clive River Dredging Resource Consent Applications” staff report.

3. Appoints the following commissioners to hear the resource consent applications required to undertake activities and discharges associated with the Clive River Dredging (APP-126090):

3.1. Paul Cooney (Chair)

3.2. Dr Malcolm Green

3.3. Rau Kirikiri.

4. Confirms that the commissioners are appointed under section 34A of the RMA and are delegated authority under sections 39, 40 41, 41A, 41B, 41C, 42, 42A, and 104-108 to hear, consider and decide the application and submissions.

Authored by:

Amelia Longley

Consents Advisor

Malcolm Miller

Manager Consents

Approved by:

Katrina Brunton

Group Manager Policy & Regulation

Attachment/s

There are no attachments for this report.

HAWKE’S BAY REGIONAL COUNCIL

Hearings Committee

Wednesday 23 June 2021

Subject: MFE National Monitoring System (NMS) Report

Reason for Report

1. This item provides a summary of results of the Ministry for the Environment’s 2019-20 National Monitoring System (NMS) report. The NMS for the 2019-20 year is about to be published and will be provided in full once received.

Background

3. The Ministry for the Environment gathers and reports on Resource Management Act (RMA) processes including resource consenting across all Councils in the country annually on their consenting for the year. It was anticipated that Council’s report would be published in time for this meeting however as it has not been, a quick summary of results is provided following.

4. Some quick observations:

4.1. 501 consents were processed to their conclusion

4.2. 63 applications were withdrawn or returned as incomplete

4.3. 1 was notified

4.4. 501 were granted

4.5. 0 were declined

4.6. All but 1 consents were processed within statutory timelines

4.7. Average cost $2000 (1460 after removing top 5)

4.8. 22 consents cost $5,000 to $10,000 to process

4.9. 5 consents cost > $10,000 to process

4.10. Maximum cost $222,087. (Notified, 4-day hearing).

Decision Making Process

5. Staff have assessed the requirements of the Local Government Act 2002 in relation to this item and have concluded that, as this report is for information only, the decision making provisions do not apply.

Recommendation

That the Hearings Committee receives and notes the “MFE National Monitoring System (NMS) Report” staff report.

Authored by: Approved by:

Malcolm Miller

Manager Consents

Katrina Brunton

Group Manager Policy & Regulation

Attachment/s

There are no attachments for this report.