14 The Decisions

14.1 The Interim Decision

The primary decision was appealed by six parties (two of whom are closely associated and filed the same appeal). In August 2009, DoC announced it had reached agreement with TPL on its grounds of appeal. The other appeals are still live, and the Environment Court is due to consider these in November 2009. Two particular appeals – those of Fish and Game and Save the Wairau – strongly question the evidential basis for the decision.

14.2 Views of Respondents

Many respondents were critical about the separation of the hearing into these two stages. Particular comments made by respondents interviewed include:

• Regarding the two stage process “the announcement was too late for evidence to address it effectively. All our briefs were prepared on the basis that the experts were addressing the whole application – merits and conditions. To turn around part way into the process and say that the detail of conditions would be addressed later, and not to look at whether or not a condition could mitigate a particular effect completely changes the relevant test. It was unfair”. (Fish and Game)
• We were not able to comment on conditions at the original hearing. We think it is a circular argument that you can mitigate effects so it’s ok to grant consent – but there is no analysis of what the conditions would look like and how they would work. It was not till the conditions hearing where problems were raised as to how you implement the interim decision to ensure effects are no more than minor – and you just can’t do so. (DoC)
• The conditions form part of the mitigation package – the TPL package was given but we could not comment on it. The interim decision is really muddled as to what consents are granted and what effects are mitigated. It must have been very unclear to TPL as to what they had to mitigate by way of conditions. (DoC)
• At first we did not understand what the two stage process meant. Early on it sounded like a good idea but it turned out to be a real nightmare – you can’t separate the conditions because they are fundamental to the decision. We had over a year in between the two hearings – and people tried to relitigate the decision at the conditions hearing. It is not a process we would recommend and nothing was gained from it. (TPL)

14.3 Views of the Panel

The hearing panel all pointed out that the “two stage” decision-making process was agreed with TPL and the main institutional submitters¹⁷ after a meeting convened early in the hearing process. Panel members commented that:

• “We considered it was the simplest way to proceed. During the course of the first part of the hearing we realised that to grant or decline was the first decision. We had to concentrate on that, particularly as there seemed a reasonable chance that the applications would be turned down, so detailed evidence on conditions would have been a waste of time. We also wanted to raise issues about conditions should we decide to grant the applications. I still consider in the circumstances this was appropriate and would do it again. All the commissioners agreed”. (Max Barber)
• “The problem was the sheer volume of evidence – it was not worth going on to conditions if we could not decide the merits. We had seen draft conditions from TPL and DoC, which were there in the background, including provisions for adaptive management. TPL thought it was a good idea at first but did not think that the hearing would go on so long. We did hear a great deal of evidence that was largely superfluous”. (Jill Bunting)
• “This is not an unusual procedure in the courts, but we needed to embark on it with great care. All the commissioners felt that TPL had a big hurdle to get over regarding the non-complying status of the applications. We knew that if we granted consents, the conditions would be more critical than the grant itself and would need a great deal of expert evidence”. (Tony Willy)

14.4 Comment

14.4.1 Making an Interim Decision

The decision by the hearing panel to take a two step approach to the decision, with the first decision being to grant or decline and the second stage, if needed, to discuss conditions, was widely criticised (noting that this process was agreed to by the applicant and all the institutional submitters). It also led to a substantial delay in the time taken to grant the applications, with about a year between the release of the interim decision and the decisions on conditions. This was a significant factor in the full hearing process taking as long as it did.

The Making Good Decisions programme developed by MfE to help train hearing commissioners outlines a 10 step process for decision making. The essence of this process generally includes consideration of the following questions:

• What are the adverse effects of the activities for which consent is sought?
• Are any of those adverse effects so compelling that the applications should not be granted (or to put it more colloquially “are there any show stoppers”?).
• If the answer to the above is no, to what extent can conditions be imposed that will avoid or mitigate the adverse effects of the activities for which consent is sought?
• How do the applications sit with the provisions of Part 2 of the Act and the statutory planning framework?
• In light of the above points, and taking account of the positive effects of the applications, what is the panel’s broad overall judgment about whether to grant or decline the applications?

In other words the conditions form a key part of the mitigation package usually offered by the applicant, and discussed by the applicant and submitters at the hearing. Officer reports usually include draft conditions for a hearing panel to consider.

While the two step decision-making process is not usually applied at council consent hearings, it is not unusual for commissioners to signal their intentions by way of minutes. These can take various forms. Quite commonly they outline procedures for reconvened hearings after an adjournment, or include requests for further information from an applicant. Minutes have also occasionally been used by commissioners to signal their views concerning specific aspects of an application or their intentions regarding a decision on an application.

14.5 Lessons Learnt

There are three key lessons regarding the decision-making process that are of relevance to consent authorities generally:

• Substantive decisions on the merits of granting or declining resource consent applications should include conditions if the consents are granted, as these form an essential part of the mitigation package associated with the applications.
• A two stage hearing process comprising separate merit and conditions hearings has the potential to substantially lengthen the decision-making process and to potentially increase costs to all parties to the proceedings.
• The use of commissioner’s minutes can be a very useful way of progressing decisions, particularly in directing how adjourned hearings will be run once the hearing is reconvened (e.g. what further evidence is to be provided, who can speak to that evidence).