Presenting Expert Evidence: A decision makers perspective

Greg Hill – Independent Hearing Commissioner and Planner

• Understanding decision-making

• Roles

• Evidence - what is it and what to include ?

• Presenting your evidence/questions

Understanding Decision- Making

3

THEDECISION

Reporting

officer –s42A report

Submissions

Legal Subs, evidence

of

‘applicant

andsubmitters

Commissioners site visit

The

Plan/change/Application

Role of the Commissioner

• Broad powers to conduct the hearing.

• Hear all sides and satisfy themselves they have sufficient information to make a decision/recommendation

• Make a decision/recommendation based SOLELY on the evidence/information received at the hearing.

Role of the Commissioner

• Unable to use own expertise in making a decision.

• Own expertise helpful to test witnesses and identify sufficiency of evidence/information.

• Independence must be maintained

Roles

Legal Counsel – advocate

Expert Witnesses – qualified to give an “opinion”

Council Officers (reporting planner/ evidence)

Kaumatua – expert

Lay Witnesses – give facts, recollections and observations

Legal Submissions

• Introduce client’s case; persuade/advocate Commissioners to accept it.

• Set out what is sought.

• Witnesses to be called – and why Commissioners should prefer those witnesses

• Legal issues and relevant case law

What is Expert Evidence – i.e. it’s purpose

To assist the decision maker to make a decision!

Evidence: Different types

Technical evidence

is given by

technical experts

on the scale, nature and intensity

Evaluative evidence is given by

evaluative experts

(e.g. planners)

on the significance of the issue/effect

Planner’s Unique Role

• Planners have a unique role, their

opinions can rely upon the opinions

of other experts

• Evaluate the significance of the

issue/effect in light of the relevant

planning documents and the Act

(King Salmon)

What is a Section 42A Report?

• Council’s Report ?

• Authors professional opinion ?

• Is it Evidence ??

Section 42A Report

• It’s YOUR opinion, its expert evidence –

• Council Employee – and giving evidence for it – but it’s YOUR opinion that counts

• “I” and not “We” or the Council's view.

• Some caveats

• The Council does NOT have an opinion.

• Council may have a ‘position’ –question is – do you agree with it, and can you professionally support it.

• If you cant – say so (either in evidence or questions)

Evidence – It’s all about you!!!

• Establishing your creditably as an “Expert”

• Qualifications, experience, professional body (eg NZPI, IPENZ, NZILA)

• Environment Court Code of Conduct

Environment Court Code of Conduct

I have read the Code of Conduct for expert Witnesses in the Environment Court’s Practice Note 2014. I agree to comply with that Code. This evidence is within my area of expertise, except where I state that I am relying upon the specified evidence of another person. I have not omitted to consider material facts known to me that might alter of detract from the opinions that I express.

What should Evidence have?

• Your qualifications and experience

• Environment Court Code of Conduct.

• Acknowledge if you are relying on other expert opinion(s)

• Good executive summary

• Use Appendices for proposed plan provisions, existing provisions

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What should the Evidence address?

• Evaluate (test) the issues – re the section 32 report and address section 32AA (plans)

• Application and Statutory Provisions

• Make a recommendation (your professional opinion) – planners.

• Provide revised wording and or conditions

What are Decision Makers Looking for in an Expert ?

• Qualified and experienced to give an opinion?

• Impartial – not advocacy • Demonstrated familiarity with the technical

and policy context of the matter?• Considered others evidence – including those

‘opposing’ • Considered alternatives where required

What ‘we’ look for

• Clear, concise writing (short sentences) • Easy to read – font, spacing and paragraphs!!• Good executive summary (no more than 3

pages) • Evidence - Not too long (limit 20 pages) • Sections of the Act and Plan provisions in

appendices

What ‘we’ look for

• ‘Good’ provisions! -

• Clear, directive objective, policy and rule drafting

• Having a clear section 32/32AA justification/ understanding of the plan provisions you are suggesting.

Case Law and implications

THE 2014 SUPREME COURT DECISION –

KING SALMON

• Confirmed the planning hierarchy

• A plan (change) which gives effect to a higher order policy statement / plan must be ‘in accordance’ with Part 2

• Unnecessary to refer back to Part 2 of RMA when determining a plan change, unless…..

UNLESS ONE OF THREE CIRCUMSTANCES APPLY:

•Invalidity;

•Incomplete coverage; or

•Uncertainty of meaning

RJ DAVIDSON COURT OF

APPEAL –[83] “…. we agree with Cull J’s conclusion that it would be inconsistent with the scheme of the Act to allow regional or district plans to be “rendered ineffective” by general recourse to pt 2 in deciding resource consent applications, providing the plans have been properly prepared in accordance with pt 2. We do not consider however that King Salmon prevents recourse to pt 2 in the case of applications for resource consent. Its implications in this context are rather that genuine consideration and application of relevant plan considerations may leave little room for pt 2 to influence the outcome".

DAVIDSON (CONT)

In short – says decision makers should consider Part 2 when making decisions on resource consents. However, where the relevant plan provisions have given effect to Part 2, there may be no need to do so as it would not add anything to the evaluative and decision making exercise.

Module 4 - At the hearing

At the hearing

• 42A report /Expert Evidence – pre - circulated

• Read Executive summary or ‘hit the high points’

• Supplementary or rebuttal –

• Be prepared for questions

Responding to questions

• Be clear (show you know your stuff)

• Clarify if unsure of question

• If you don’t know – say so – but say how you will find out and report back

• Avoid advocacy

• Expect:

– Questions may be about what’s in other evidence

– What’s not in your written evidence

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The Hearing is Done