15 The Conditions Hearing and Decision

Most respondents interviewed made a contribution to the conditions hearing. The main reason offered was that they were trying to make the primary decision more acceptable by ensuring conditions were imposed to mitigate adverse effects. However, some respondents did not, saying that any decision on conditions would not meet their main concern that the primary decision to grant the consents sought was, in their view, wrong.

None of the MDC consents staff attended the conditions hearing¹⁸. Instead, the council predominantly relied on a detailed written memorandum from the s42A reporting officer that was supplied to the panel prior to the hearing. The reporting officer was present at the hearing. His memorandum outlined matters of concern about draft conditions proposed by TPL.

The lack of any comment by MDC consents staff on draft conditions at the conditions hearing attracted some adverse comment. For example:

If the panel can’t go back to the staff they can’t give expert advice. Council staff had no input to the conditions hearing – MDC’s river engineer was present only because of (MDC owned) Southern Valleys Irrigation. The panel asked him questions that should have been asked of the council’s hydrologist at the original hearing. The flow fluctuation at Tuamarina due to hydro peaking (from the existing Branch Scheme) only came out at the conditions hearing. This is where the non-derogation condition came from. (DoC)

A member of the hearing panel also made the following observation:

“There were no draft conditions presented by MDC staff. Rather this was done through the council’s consultant. I think that the staff should have been more upfront. Only on one occasion was an officer present during our discussions on conditions – this was MDC’s principal planner at the last stage as we had a question about implementation. The final draft of the conditions was also referred to him to check for clarity, effectiveness and enforceability”. (Max Barber)

Asked for comment about this criticism the MDC made the following response:

“Council is aware that it has a responsibility to administer the conditions of any consent. The process that was followed in this case may have lacked a degree of transparency but was necessitated by the sheer volume of the conditions that were to become part of the consent. The Hearings Committee first worked up the conditions that they wanted to run with. The conditions were then run past Council staff, both technical and from compliance to review and improve upon them. They were then given back to the Hearings Committee who then heard from all the other parties and finalised them as part of the final decision”.

15.1 Comment

The conditions imposed by the hearing panel are the responsibility of MDC to administer and enforce, and so it is strongly in the council’s interest that the panel “get it right”. It is common practice for council consents staff to provide written comment on draft conditions of consent, and to have robust and visible input into the conditions being proposed. This is commonly done as part of the s42A officer’s report.

A common practice in adjourned hearings is to ask the applicant and officers to come back to a hearing panel with areas of agreement and disagreement on draft conditions. This has the advantage of focusing commissioners on areas of substantial disagreement.

15.2 Lesson Learnt

There is one key lesson for consent authorities generally regarding the process of deciding consent conditions:

• Council consents staff should be present at a hearing to present their comments on the conditions proposed by the applicant and the other parties. These comments should be made in writing.