A commissioner is a person appointed by a council to carry out statutory hearing and decision-making duties on the council’s behalf, or to serve as an independent adviser to the council in the making of those statutory decisions.
Commissioners may be generally classified as:
- elected member commissioners – who are appointed from within the members of a council
- independent commissioners – who are not a member of the council i.e. appointed from outside the elected members or staff of a council.
Section 100A and s 357AB(2) of the RMA makes a distinction between elected members and non-elected members, setting out that elected members of the council cannot be independent commissioners.
Section 100A(4) requires councils to delegate its functions, duties and powers to hear and decide on an application to one or more hearing commissioners who are not members of the council when requested by an applicant, submitter or both. The intent is that this would be an exclusive delegation to independent commissioners only (i.e. not a mixed panel also containing elected members or staff of council).
Elected member commissioners may either be appointed to act alone, or with other commissioners or elected members of the council (councillors and community board members).
A council can appoint anyone to be an independent commissioner, but typically those appointed will have relevant skills and experience for the issue being decided (such as in planning, law, surveying, engineering or science). They may also be former councillors who are appointed for their chairing or hearing experience and expertise.
What decisions can a commissioner make?
Section 34A of the Resource Management Act 1991 (RMA) specifies the functions and powers that can be delegated to council employees or other persons such as commissioners. This section leaves the potential powers of commissioners open, referring instead to those powers and functions not able to be delegated.
Commissioners cannot:
- approve a proposed policy statement or plan; or
- delegate any powers or functions delegated to them.
These powers are given to a council only.
Commissioners can be delegated powers in respect of:
- making decisions on proposed policy statements, proposed plans, variations or plan changes (other than approval)
- making decisions on resource consent applications and recommendations on notices of requirement
- making decisions on the notification or non-notification of resource consents
- making decisions in regard to the service of an application
- making decisions on plan changes or variations and on submissions to plan changes (other than declaring a plan change operative)
- reviewing resource consent conditions
- providing advice on technical or procedural matters in assisting councils to make decisions on particular applications.
Commissioners are able to have any of the powers delegated to them that are delegated to council staff. The following list outlines which delegations can be held by council staff.
|
RMA |
Summary of function delegated |
|
Section 10 |
Power to determine that existing use rights apply to a proposal |
|
Section 36AAA |
Require additional charges |
|
Section 36AAB(1) |
Remission of charges on application |
|
Section 36AA |
Discount on an administrative charge |
|
Section 37 |
Power to waive or extend time periods |
|
Section 38 |
Authorisation of enforcement officers |
|
Section 87CA |
Decisions in respect of direct referral |
|
Section 88 |
Power to determine on initial receipt of an application, the adequacy of an application and whether or not it should be accepted for further processing as a complete and valid application |
|
Section 91 |
Deferral of application pending additional applications |
|
Section 92 |
Request further information |
|
Section 95A |
Power to determine whether to publicly notify an application for resource consent. |
|
Section 95B |
Power to determine whether to limited notify an application. |
|
Section 95C |
Notification of consent application after request for further information or report. |
|
Section 95D |
Power to decide if adverse effects are more than minor |
|
Section 95E |
Power to decide who is an affected person |
|
Section 95E(3)(b) |
Power to decide the circumstances when it will be unreasonable to seek written approval of affected persons |
|
Section 98 |
To provide applicants for resource consents with a list of submissions received |
|
Section 99 |
Power to initiate pre-hearing meetings |
|
Section 100 |
Power to determine that a formal hearing is not needed |
|
Section 101 |
Power to fix hearing dates |
|
Section 102 |
Power to make a decision to establish a joint hearing provided that prior consultation takes place with the chairperson |
|
Section 103 |
Power to decide and arrange the holding of combined hearings where two or more applications are made to the council |
|
Section 104 |
To make decisions on applications for resource consents, including determining consent conditions. |
|
Section 109 |
Power to decide whether any work the subject of a bond or covenant is completed satisfactorily |
|
Section 113 |
To serve on parties copies of decisions on applications for resource consents and arrange public notification of such decisions where appropriate |
|
Section 125 |
Power to extend the period in which a resource consent lapses |
|
Section 126 |
Power to cancel un-exercised consents |
|
Section 127 (1) |
Power to change or cancel a consent condition |
|
Section 127 (3) |
Power to decide the circumstances when it will be unreasonable to seek written approval of other persons to the variation or cancellation of conditions |
|
Section 128-132 |
Power to review consent conditions |
|
Section 139 |
Power to issue certificates of compliance |
|
Section 221 |
Power to issue a consent notice |
|
Section 222 |
Power to issue a completion certificate |
