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Specialist Hearings Sub-committee
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MINUTES OF A MEETING OF THE
SPECIALIST HEARINGS SUBCOMMITTEE
HELD ON TUESDAY, 6 OCTOBER 2009 AT 9:30 AM
IN THE COMMITTEE ROOM, LEVEL 15
CIVIC ADMINISTRATION BUILDING,
1 GREYS AVENUE, AUCKLAND

PRESENT: Mr G Hill Chairperson
  Mr L Simmons  

  1. Top APPOINTMENT OF CHAIRPERSON

    That Greg Hill be appointed as chairperson for this meeting of the Specialist Hearings Subcommittee.

    CARRIED

  2. Top APOLOGIES

    That the apology from Conway Stewart be accepted.

    CARRIED

  3. Top CONFIRMATION OF MINUTES

    That the minutes of the Specialist Hearings Subcommittee meeting held on Tuesday, 8 September 2009 be confirmed as a true and correct record.

    CARRIED

  4. Top EXTRAORDINARY BUSINESS

    There was no extraordinary business.

  5. Top PUBLIC FORUM

    There were no requests to speak in public forum.

  6. Top SECTION 357B COSTS OBJECTION FOR RESOURCE CONSENT APPLICATION AT 24 GREENLANE EAST ROAD, GREENLANE

    A copy of the Statement of Colin Grant Hardacre provided to the Subcommittee was tabled.

    [ATTACHMENT 6A]

    1. That pursuant to section 48.2(a)(i) of the Local Government Official Information and Meetings Act 1987, the public be excluded from the deliberations of the Specialist Hearings Subcommittee following the hearing of evidence in this matter for the reason that a right of appeal lies in the District court against the final decision of the subcommittee.

    CARRIED

    1. That pursuant to section 357D of the Resource Management Act 1991, and having taken into account the relevant matters at section 36(3) and (4) of the Resource Management Act 1991, the objection by Global Property Holdings Limited to the invoice issued in respect of a notified resource consent application (Council reference R/LUC/2007/2514) to establish a health care facility, in particular, a muscular skeletal clinic in a Residential 5 zone at 24 Greenlane East Road, Greenlane, be upheld in part.
    2. That the reasons for upholding the objection in part are set out below:
      1. The objection lodged by the applicant requested "a reduction in the Resource Consent processing fee for this application" but at the hearing, the applicant's agent (Mr. Hardacre) said his instructions were to seek a total waiver of the fees. This was based upon what he and his client considered was a very deficient section 42A report produced by the reporting officer. It was asserted that this report and its findings had put the applicant to additional costs in 'supporting' the application before the Hearing Commissioners.

        Mr Hardacre, when questioned by the Hearings Panel, said his professional opinion was that the full cost of processing the consent application should not be refunded. This was based on his view that regardless of the officer's report, costs would have been incurred in the notification, specialist input, and the hearing of the application (including the cost of the Commissioners to hear, decide and draft the decision). He stated that only 50% should be charged, but then said that only the deposit (approximately $6,000) should be charged. He further acknowledged that he would normally expect an application such as this to cost around $14,000 to $17,000, and that the amount charged (approximately $27,000) was high.  The Council's independent consultant who addressed the objection considered that $27,000 was not out of the ordinary for this type of application, but that it was at the upper limit of what could be considered reasonable.

        Mr Hardacre, in answer to further questions, said that reducing the fee to the deposit amount had a "punitive" element, and reiterated that he considered the planning officer's report to be very deficient.

        The 'tests' to be applied by the Hearing Panel, pursuant to section 36 of the RMA are whether the fees charged are actual and reasonable. The "sole purpose of the charge is to recover the reasonable costs incurred by the local authority in respect of the activity to which the charge relates" (section 36(4).

        In this case, the application was for a non-complying activity, it was publicly notified, attracted submissions and was the subject of the 'contested' hearing. The applicant determined that they needed experts to support the application, and did do at the hearing. While the Commissioners granted the application (contrary to the recommendation of the reporting officer), being satisfied on the evidence presented, but imposed a number of conditions relating to, (amongst other things) maintaining the residential amenity of the area - and including hours of operation, landscaping, fencing and parking.

        The Commissioners do not consider that the fees charged are unfair or unreasonable in the circumstances. While it was asserted that the officer's report was deficient, this does not translate to all of the fees being unfair and unreasonable and the Panel do not consider that waiving the fee, as a "punitive" measure is fair, reasonable or the purpose of objections to costs.

        Council officers had, prior to the hearing, agreed to waive some of the reporting officer's fee for drafting the section 42A report. This was set out in am email to Mr Hardacre from Mr Andrews (Appeals Manager) on the 29th June 2009. This was to reduce the hours for drafting the section 42A report from 25 hours to 12.5 hours - a reduction of $1,546.88 including GST. The reasons for this, and why it was not appropriate to reduce the fee further, are set out in that email. The Hearings Panel accept the rationale set out in that email and have decided accordingly to reduce the total fee by $1,546.88 including GST.
      2. Other then the reduced amount addressed above the charge is only to cover costs incurred through the processing of the applicant's proposal;
        • the costs incurred are a direct result of charges generated to assess an application which will provide benefit only to private individuals and not the wider community; and
        • the fees are considered reasonable and an accurate reflection of the level of input required for an application of this nature and complexity.
    3. That the total amount to be invoiced shall be reduced by $1,546.88 inclusive of GST.

    CARRIED

  7. Top SECTION 357B COSTS OBJECTION FOR RESOURCE CONSENT APPLICATION AT 60 COLLEGE HILL, FREEMAN'S BAY

    1. That pursuant to section 48.2(a)(i) of the Local Government Official Information and Meetings Act 1987, the public be excluded from the deliberations of the Specialist Hearings Subcommittee following the hearing of evidence in this matter, for the reason that a right of appeal lies in the Environment Court against the final decision of the subcommittee.

    CARRIED

    1.  That pursuant to section 357B(a) and 357D of the Resource Management Act 1991, and having taken into account the relevant matters at section 36(3) and (4) of the Resource Management Act 1991, the objection by Jonathon Smith to the invoice issued in respect of a non notified resource consent application (Council reference LUC/2008/6011) for additions and alteration to an existing building and the establishment of an office in the residential one zone at 60 College Hill Freeman's Bay, be upheld in part.
    2. The reasons for upholding the objection in part are:
      1. It was acknowledged by the Committee the applicant had became very frustrated with the planning process, the number of different people he had to deal with and then time taken to process the application. This was evident from the extensive history and documented chronology. This resulted in Mark Vinall - Group Manager Auckland city Environments agreeing to waive the fees associated with the application.  Mr Smith was informed by email by Council officers (14th may 2009) that fees would be charged from this date. Mr Smith advised the council by email on the 19th May 2009 stating "I would prefer not to be charged on an hourly rate....". However, Mr Smith did not request that the processing of the application halt.
      2. The Committee consider that it would have been better practice for Mr Vinall to inform the applicant in writing that charging for the application was to 're-commence'. This would have made it clear to Mr Smith that he would be required to pay of the continued processing of his application. However, it is clear from the above that Mr Smith understood that he would be charged to the continued processing of his application. It was also disappointing that Mr Smith did not attend the hearing in person to outline his concerns and reasons why the fees should be waived.
      3. The Committee consider that the actual and reasonable costs incurred in processing the application after the 14th May 2009 should be recovered from the applicant. In this respect the following items have been deducted from the final invoice as they were incurred prior to that date (notwithstanding that they were necessary in the final processing of the application). These items include GST.
        • Traffic Engineering Specialist ($500.00),
        • Heritage Site Visit ($160.00), and
        • Planning Team Leader ($164.00).
      4. It is noted that the council would be entitled to charge the 28.75 hours of the planner's time, as this was the actual time spent on the application post 14th may 2009. However, the Council has only charged just over 10 hours of time. Accordingly the Council has, in addition to the waiving the pre 14th may 2009 fees, has also heavily 'discounted' the post 14th may 2009 fees.
      5. The charges invoiced by Council cover only the reasonable costs, incurred from processing the application since 14 May 2009. The Council made it known to the applicant in writing that from that date the standard processing charges would apply.
      6. A number of the costs are not additional charges but fixed and therefore beyond the discretion of the Committee to waive.
      7. The costs incurred are only a result of charges from assessing the application that provides benefit only to the applicant and not the wider community.
      8. The fees generated are reasonable and of a cost less than normally anticipated for an application of this nature.
    3. That the total amount (GST included) to be invoiced shall be $3,741.75.

    CARRIED

    There being no further business the Chairman declared the meeting closed at 10:50 am.