It appears to be drawing a long bow to compare a 1923 court decision from the Kings Bench in the UK to the hearing of the Otago Regional Councils plan change 6C - Water.
The 1923 decision gave rise to Lord Chief Justice Hewart’s ruling – ‘that justice should appear to be done’ and that no one can sit in judgment in their own cause. The mere appearance of bias by those sitting in judgment is sufficient to overturn a judicial decision as happened in 1923 where a deputy clerk to the Kings bench was also a member of a firm of solicitors acting in a civil claim before the Justices. An appeal against conviction was upheld on the basis of a perception of bias.
A recent NZ High Court decision accepted that a judge hearing a case, and who had a business arrangement with the solicitor pleading the case on behalf of a client, was in fact a conflict of interest.
In the case of the ORC hearing of plan change on water it would seem that any panelist having an interest in the outcome – “is to sit in judgment in your own cause”. The ORC has already voted (by a 10-1 majority) to accept the plan change which is now to go to the public consultation phase.
The public must have confidence that no panel member hearing submissions from the public – “is sitting in judgment in their own cause” or they will feel the system is failing them. The entire validity of the hearing panel process is based on the public’s consent of a system that allows for a completely unbiased /independent process.
The mere appearance of partiality towards a council position by any council panel is enough in law to overturn that decision due to the edict - that no one can sit in judgment in their own cause. Council processes should not sit outside the application of this fundamental concept of natural justice being seen to be done. The fact that the Resource Management Act allows councillors to hear and rule on submissions on policy the council have already approved of is a possible reason why the RMA has never been copied and implemented by any other country.
Councils hearing process has the ability to confirm dismiss or correct any real or perceived oversights of council staff recommendations that have already been confirmed by the governing body of council. That very confirmation (by the elected members of council) of staff recommendations may lead to an appearance of bias but not actual bias in favour of the council’s intention.
As all councillors on the hearing panel voted for the amending of plan change 6C water, the appearance is that the panel is sitting in judgment in their own cause. The fact that the hearing panel have no pecuniary or proprietary interest is clear but irrelevant in the context of the issue of perception of bias.
There is however a redistribution of benefit away from existing and permitted use rights holders in mainly rural Otago to others – namely urban areas. Therein lays a potential conflict of interest as the “political” benefits of the plan change falls to those where the voting strength lies.
One councilor appointed to the hearing panel has had a very significant input into plan change 6C (Water) and has received praise for his diligence and stewardship in overseeing the plan change. Where then does the perception of impartiality sit if the outcome of the plan change for public consultation is in the hands of the designer plus two other councilors? A recent Council Committee meeting did vote by a small majority to appoint an independent panel member which indicates that the principle of independence is accepted by at least some of the council.
Councils do have the right to impose new standards and seek new directions but the changes must be subject to the scrutiny of a totally independent hearing panel, removed from the close working relationship that is by necessity, a feature of successful governing and executive bodies of council.
This plan change 6C Water is also retrospective and has the potential to significantly alter the social and economic viability of the well being of this region. It must be remembered that retrospectivity invokes legal consequences for actions that (legally) existed before a plan change.
Retrospective laws and rules are widely condemned as being unfair as they change the legal status of the previous allowable laws or rules. The new (retrospective) standard for plan change 6C water could well compromise the social and economic well being of many rural communities which have invested in land in good faith based on a certain set of rules which may soon be changed. This proposed plan change holds the potential for a class action against the ORC on the issue of perceived bias as well as the science behind the plan change that is not universally accepted or peer reviewed. Over 300 submissions have been received. An independent scientific panel could well mitigate against that risk.
The Otago Regional Council has not examined the risk of being wrong – nor has the consequences and risk to our well being as a region been duly considered. That is why it was and is so important that a suitably qualified independent panel with the appropriate scientific expertise should have been appointed. It is also why the 1923 dictum of a Lord Chief Justice so long ago holds as true today as it did then. It is not a question of the integrity of the councillors on hearing panel but of the integrity of council process and the publics’ confidence in it.
Gerry Eckhoff is an Otago Regional Council councilor.