9 Commissioning of Reports

9.1 RMA Framework

Section 92(2) allows a consent authority to “commission any person to prepare a report on any matter relating to an application”. However, three pre-requisites apply – the consent authority considers that the activity may have significant adverse environmental effects; the applicant is notified of the decision; and the applicant does not refuse to agree to reports being commissioned. Such reports are commonly called peer review reports, and are referenced as such in the following sections.

9.2 Actions Taken by MDC

In early July 2005 MDC asked the National Institute of Water and Atmospheric Research (NIWA) to provide costings and the like for a review of the TPL applications. A similar letter was sent to Kingett Mitchell Limited (KML).⁴

At some stage Damwatch, a subsidiary of Meridian Energy, were contracted by MDC to carry out a peer review of engineering and safety aspects of the applications.⁵ In their interview TPL respondents commented that they had no concerns about Damwatch acting in that role. The company is industry recognised and TPL had used most of the competitors in their own work, so the only other company which could have fulfilled the same peer review role was Opus International Consultants. TPL talked with Damwatch about the work and worked alongside them during the peer review process.

MDC wrote to TPL on 2 August 2005 asking if they had any issue with NIWA and/or KML undertaking the technical reviews. There is no written record of TPL objecting to the reviews being undertaken, or who undertook them. In their interview TPL advised that they commented verbally to MDC that both NIWA and KML had tendered to carry out work for the AAE but had missed out, and TPL expressed concern that they were being used in a peer review role. No record of such comment was found on the MDC files.

Regardless of this, there appears to have been some tension between TPL and its consultants and the peer reviewers from NIWA and KML appointed by the MDC. This particularly manifested itself in two subsequent challenges by TPL to the peer reviews.

9.2.1 “Caucusing” of the Peer Reviews

On 9 December 2005, lead counsel for TPL e-mailed MDC’s counsel formally requesting that TPL experts “caucus” with MDC’s independent reviewers prior to the release of their reports. Reasons given were that TPL experts “could comment on assumptions that may be mistaken, agree on certain matters, agree further appropriate actions and avoid needless debate through the substantive hearing process”. Possible opposition to costs was also raised if this did not occur: “We would also find it extremely surprising for there to be no substantial caucusing prior to the release of the reports”. Accordingly, TPL formally sought an opportunity for caucusing.

MDC’s counsel replied on 13 December 2005, stating that the reports were already finalised, that the reviewers had been in close touch with TPL experts during the process, and that the council was exercising its rights under s92(2) to release the reports. In their opinion it was not possible to revisit this matter.

Lead counsel for TPL responded on 13 December 2005 saying that “we find it remarkable, and contrary to accepted practice, that peer review reports have been concluded without any caucusing whatsoever with the relevant expert consultants for the applicant”. The response also asserted that “the s92 process is not an adversarial process and ought not be allowed to degenerate into one” and threatened to raise the matter with the hearing panel chair.

There is an e-mail from NIWA dated 14 December 2005 on MDC files outlining how NIWA staff had been in contact with TPL experts while undertaking peer reviews, and saying that discussion was useful and desirable. The e-mail indicates that NIWA would have “no problem” with a meeting with TPL and MDC to discuss review issues prior to the reviews being made public.

Formal papers were lodged by counsel acting on behalf of TPL and MDC and were put before the chair of the hearing panel. In a decision dated 21 December 2005 the chair decided that this was an administrative issue for the council and not one that came under the hearing panel’s jurisdiction. The matter was taken no further, and the peer review reports were released without a formal peer review by TPL.

9.3 Challenge to Reports Being Presented at the Hearing

There was a challenge mounted by TPL at the hearing to the admissibility of five pieces of evidence prepared by officers of the MDC or their peer reviewers. These included reports by the MDC’s hydrologist and freshwater biologist, a report on avifauna by NIWA, and a groundwater report by KML.

The background to this challenge was that the original s42A report contained no appended technical reports. In the words of hearing panel chair:

“The spin off from this was that we did not know what the stance was of the technical people at the MDC. We asked MDC’s consultant to submit an amended s42 report that covered this, but he pointed out that he did not know the technical material and this would have to be filtered through him which was not satisfactory. So we granted him leave to attach evidence from the relevant council experts. TPL objected to this but we overruled them and allowed reports to be submitted from officers and peer reviewers.”

This legal argument took about two days before the hearing panel decided that evidence could be presented. The hearing panel’s decision was strongly opposed by TPL.

9.4 Views of Respondents

Asked why they had mounted these challenges, TPL respondents made the following comments:

• “Early on there were some fairly sweeping statements from NIWA that caused us concern, and a lot of animosity rose from that. ⁶ There was a feeling from our point of view that they did not adopt the peer review role but rather were inclined to re-invent the wheel.”

• “Following the site visits with the peer review reporters there were some quite strong differences. We were concerned that these were more about methods than they were results, particularly in relation to groundwater. There did not seem to be any point in going our separate ways. We would still push to caucus with the peer reviewers as it can be a way to ease the process. We would also like to see the s42A report before it goes out.”

Not surprisingly, the submitters took a different view. Their views were well summarised by DoC:

“It is not for TPL to determine who is heard and who is not. There is a great deal of expertise in the council in people like their hydrologist and their river engineer. This was not in the s42A report, although it is common practice for council staff to comment and that is a very useful approach.”

There was also adverse comment about a lack of clarity about the role of the reporting officers, and what submitters perceived as the detached approach of the MDC:

• DoC said that there was a lack of clarity about the role of the reporting officers and the officers were not used efficiently at the hearing.

• Fish and Game said “MDC called no experts and there was no detailed appraisal carried out as part of the s42A report. Rather it was left to the parties to slug it out. The MDC contribution was poor compared with best practice”.

• Forest and Bird said “we rely on local authorities such as MDC to do a proper process and in that sense we don’t think the council did a good job. It should be a matter of course that all the peer review reports form part of the council’s reporting role”.

9.5 Views of the Panel and the MDC

Members of the hearing panel made the following comments on this matter:

• The initial s42A report was not passed to us as the council’s final report. It would have been preferable if the technical reports had been appended, but I understand the report writers considered that they did not have all the necessary information from TPL. The challenge was made to their being admitted as evidence and it had to be dealt with and all parties had to have their say. (Max Barber)

• In retrospect it would have been good if the technical reports had been attached to the S42A report. I knew from other hearings that there was a lot of information about the river out there and it would have been good to have had that. For example, a hydrologist’s report would have been helpful. (Jill Bunting)

The MDC also provided written comment on this matter. In particular they indicated that they had spoken to the consultant involved in preparing the report and confirmed:

“… that it was his intention when writing the s42A report to have some of the contributors to that report at the hearing to address those matters in the report in which they had expertise and had made a contribution. The consultant advises that TrustPower challenged those persons whose views they had a disagreement with”.

MDC also noted that TPL strongly contested many of their costs incurred during the processing of the Wairau applications. In particular it observed that:

“At every stage TrustPower resisted meeting costs which were invoiced and at every stage challenged the reasonableness of Council’s charging for these costs. Council was in a very difficult position in that TrustPower was requiring significant Council resources to be devoted to its application and was then refusing to meet the costs.” ⁷

Members of the panel also expressed some frustration at the refusal of TPL to work towards agreement on some evidential matters (such as hydrology). Tony Willy said:

“At the first pre-hearing we asked that the experts “hot tub” to determine what is agreed and what is disagreed. But TPL would not agree to this. It would have saved months. I think some of it started to go wrong at that time. The parties did this for the conditions, which was helpful and we did get some agreement later in the process.”

In discussing this matter Tony Willy also commented about the very limited powers granted hearing panels to direct procedures. This is a matter discussed further in Section 13.2 of this report.

9.6 Comment

While the s42A report was regarded as helpful by respondents, no supporting reports were appended to it. Such reports, be they internal staff reports or supporting memoranda quoted in the text, or peer review reports by external consultants, are very commonly attached to the s42A report. It is then clear that a hearing panel can ask those who provided those reports to attend the hearing and speak to them if required. MDC did not do this. This led to TPL challenging the right of some witnesses called by the MDC to present their evidence. The hearing panel rejected this challenge.

9.7 Lesson Learnt

There is one key lesson for consent authorities generally associated with the process of reporting on applications:

• As a matter of good practice, s42A officer reports should append all relevant technical information on which the author of the report has relied, or which might be helpful to the hearing panel. This removes any doubt that those technical experts can be called as witnesses should that be sought by the panel.