Commissioners have slashed the fees Auckland Council charged for 3 marina resource consent extension applications, reducing the total from $52,500 to just under $27,800.
This story contains a summary, then runs sections of the decision at length because many of the issues raised – from both sides of the argument – are critical to efficient resource consent decisionmaking.
After setting aside $3000 as payable for what they deemed a routine matter, the commissioners halved the balance payable.
Empire Capital Ltd chief executive David Hollingsworth suggested at the hearing of the company’s objection to the fees that a total charge of $15,000 would have been reasonable. That would have left the company with $3000 to pay on top of the $12,000 deposit.
The reporting officer on the applications, Robert Andrews, who tried unsuccessfully to negotiate a reduction before Empire took its objection to a hearing, suggested a $5850 cut in the bill, leaving just under $34,700 payable on top of the deposit.
The commissioners who heard the objection on 10 March, David Hill (chair) & Robert Scott, issued their decision on Monday.
The 3 applications, to extend resource consents in place for the Bayswater, Hobsonville & Pine Harbour marinas which Empire Capital owns, all went to the council on 26 April 2019 and were approved by a duty commissioner on 6 September.
The council’s processing fees (including gst) combined totalled $52,509.74, of which $12,000 was paid as 3 $4000 fixed deposits at the time of lodgement. Empire didn’t pay the balance, instead taking the bill through the council’s objection process.
The essence of the story ends there. Below are the views of the commissioners, Empire chief executive Mr Hollingsworth & planning consultant Craig Shearer, and the council position as expressed by reporting officer Mr Andrews, brought in by the council for an overview.
Long list of objections
Mr Andrews had recommended that the objections be upheld in part, suggesting the bill be reduced by $5850 – the equivalent of 30 hours of planner reporting time.
Against that, Mr Hollingsworth set out a long list of objections from Empire Capital:
- We have been charged administration at $192/hour. According to the council website, administration work for a resource consent should be levied at $111/hour. This is the rate after 1 July 2019, so presumably a lesser rate applied before then
- Work carried out by the planner was charged at $192/hour up to 1 July 2019, and then $195/hour. According to the council website, planners should be charging $168/hour from 1 July
- The rate of $195/hour is listed as being carried out by a senior, intermediate, principal or team leader. The planner used in the consent application – Rashida Sahib – would appear to be very inexperienced, particularly in coastal matters, had probably never processed a coastal consent before, and should actually be charged at a much lower rate than $168. It became apparent over a number of meetings & conversations that Rashida had no knowledge of any matter or issue relating to this application. The planner spending 84 or so hours processing the application, and also needing the advice of a specialist who allocated 13 hours to the application, reinforces the junior nature of the processing planner. Not only is this double dipping, we are in effect paying for the planner’s education
- There is no justification for an engineer’s assessment, or a review of the application by Parks – there was no engineering or parks component to the consent application
- This application was in essence an extension of an existing consent. It was non-notified, resulting in the extension by around 8 years of the existing occupation consent provisions. This was not a major application – to have spent some 84 hours by the planner, and around 13 hours by a specialist, is not acceptable
- It would appear we were charged less than $5000 for a similar consent granted to Hobsonville Marina in 2014
- Council elected to have the 3 applications processed by 3 separate planners. It is therefore unacceptable to have incurred several hours, and it would appear to have been at least 500 minutes, meeting & discussing the applications across these different planners, in effect charging treble
- A very long time appears to have been spent on preparing the section 92 questions, including up to 120 minutes attending a meeting with 2 other planners on 26 July on section 92 – Given all the meetings with other planners & the specialist, is 290 minutes on a peer review appropriate? Who was the peer? What qualifications & experience did they have? I would query 170 minutes discussing the peer review with the team leader & amending report
- In respect of specialist input, I am querying:
- 90 minutes assessment & writing on 17 May – I note we are also charged assessment & writing by the planner
- 90 minutes to print & review an application – it was not that substantial an application, and also duplicates the work carried out by the planner
- 90 minutes to recreate a map & some writing on 17 May?
- What is 60 minutes on advice on 31 May, plus 50 minutes meeting with planners? Was 330 minutes spent in total, or was it 110 minutes charged to 3 entities?
- Please explain the 210 minutes by the specialist to draft the memo?
- In summary, we will end up being charged 3 times what we should be, for example, did the specialist spend 450 minutes on 14 & 15 August drafting the tech memos? And if so, why are we then charged for 260 minutes for assessment & report writing on 23 August? We have been told that all 3 staff were novices in this field, therefore a 3 times learning process at our expense. This is a grossly inefficient way to deal with the same applications, and has added considerably to the cost. The heavy dependence on a “specialist” confirms their inexperience & inappropriateness for this job.
- While the time & dollar cost numbers varied across the 3 marina consents, and the exclusive occupation extension was slightly different – 8 years for Pine Harbour & 5 years each for Bayswater & Hobsonville, to bring all into line with an expiry date of 2054 – the objection issues identified were quite similar.
Commissioners get to the nub
In their decision, commissioners Hill & Scott said: “As we understood the key issue it was, essentially, why it cost $52,509.74 to determine a 5-year extension to existing exclusive occupation consents in the case of Bayswater & Hobsonville (which current consents expire in 2049) and an 8-year extension for Pine Harbour (which consent, not being for exclusive occupation , expires in 2046) – and, if it did, why that cost in whole should be passed on to the applicant.”
At the hearing, Mr Hollingsworth also questioned costs associated with what he referred to as the “actions of others” – being 28 May 2019 correspondence from the Auckland Marine Users Association (AMUA) & subsequent meetings & correspondence with Cllrs John Watson & Wayne Walker (among others). He contended that the letter from AMUA had influenced the processing of the application and led to additional costs which were unfairly charged – particularly, as was later opined, as those matters came to naught with the eventual result of a non-notified decision.
Right of objection
Mr Hill said in the decision the 2 commissioners had to jump through a few hoops to consider the “totality of cost” because the right of objection in section 357B of the Resource Management Act was to any additional charges “incurred by the local authority in respect of the activity to which the charge relates”, and the “activity” in question was each resource consent application (and the charges incurred by the council in processing each).
“It is clear therefore that, in the ordinary course of events, we would not have jurisdiction to look at the ‘totality of cost’ incurred in respect of 3 separate applications as if it were a single activity, even though the applications concerned similar subject matter.
“However, in this instance, it is clear that council itself treated the 3 applications as a totality, albeit distributed at the same time to 3 different planners to oversee as part of its spatial organisation into central, south & north-west ‘sections’ and with a combined report from its coastal specialist, Dr Kala Sivaguru, and, as we were given to understand, common meetings & comparable recommendation reports & decisions. We have therefore determined that, in those circumstances, we are able to consider the 3 effectively as one for the purpose of these objections.”
The council review
In Mr Andrews’ review of the council perspective, he noted:
- Allocating the applications that allowed the opportunity for separate reporting planners to process coastal consents still involved co-ordinating combined meetings, the division of tasks and a single specialist report. These were all reasonable & typical means of processing such applications and therefore the charges associated with these tasks are not unreasonable. That said, as offered in my correspondence, removing 30 hours of the planners’ reporting times would fully address the argued assessment & report duplication or any learning component.
- The published planner hourly rates are set through a public process and are beyond the scope of an objection process.
- The specialist assessment, meeting & reporting times are divided equally between the consents and are justifiable & reasonable.
- The review costs by the engineer & parks officer were justifiable & generally quite minimal.
- Where charged, the time associated with dealing with legal matters & third parties raising concerns over the proposed exclusive occupation were actions directly related to the applications being processed. The applicant was the sole beneficiary of the consent processing and not the council or third parties. In particular, the necessarily comprehensive notification reporting in part sought to ensure that the assessments were robust & beyond challenge. I consider it realistic that an applicant accepts the reasonableness of this approach when seeking applications to proceed without notice.
- That 50 minutes recorded as administration and charged at $192.00 and $195.00 (most likely by the Pine Harbour senior planner) could be removed if there was doubt from the task description that it may have been undertaken by one of the administrators.
- Mr Andrews concluded that the length of reports reflected the type of application & matters that needed to be addressed; were not an over-assessment or duplication; and the processing costs charged were not unusual for applications that raised issues with elected members.
- Finally, Mr Andrews gave his opinion that the officer hours recorded were solely attributable to the applications made.
The commissioners then turned to the position of Empire Capital as expounded by Mr Shearer through a series of self-posed questions which included the following:
- Were the applications complex?
- How much time should have been allocated to dealing with opposition letters received by the council?
- Is there repetition in the 3 sets of report?
- Would it have been more efficient & reasonable for the council to allocate the task of processing the consents to one person and if so, should that person be a specialist?
- The relevance of the specialist report?
The commissioners found: “Mr Shearer concluded that the applications were not complex – by & large simply time-extending an existing situation , with no additional adverse effects, within zones whose provisions have not materially changed since being granted, and all with a significant time yet to run (27 years or 30 years to expiry).
“With respect to the opposition letters received and the involvement of councillors & local board members, Mr Shearer concluded that the matters raised were not relevant to the applications, as subsequently demonstrated by council’s recommendation & decision not to publicly or limited notify any of the applications.
“Mr Shearer provided a marked-up copy of the recommendation reports & duty commissioner decision illustrating the extent of repetition in the documents. In that light, and when cross-referenced to the timesheets for report writing, he concluded that the time recorded seemed to be ‘excessive’.
“On the matter as to whether it would have been more efficient to use one experienced coastal planning specialist rather than 3 ‘terrestrial’ planners, Mr Shearer concluded that such would have significantly reduced the recorded meeting time for the 3 reporting planners – he estimated by at least a half, from 25 hours to 10 hours.
“Notwithstanding the above, Mr Shearer queried the need for a coastal specialist report in light of the fact that, as he saw it, the resultant report disclosed no technical coastal issues but, rather, general legal/planning ones.
“Mr Shearer concluded that the total staff time allocation should have been between 24-28 hours per application; a total of 72-84 hours rather than the about-258 hours actually charged (noting that he had charged some 108 hours only for actually preparing the 3 applications for lodgement).”
Mr Hollingsworth added comments on Mr Andrews’ section 42A report: “In his opinion, he concluded (among other things) that the s42A report failed to engage in any of the issues he had raised in correspondence; provided no evidence justifying the need for & extent of the resources committed to the applications; and disputed the proposition that the unitary plan planning framework had introduced considerable change (and therefore comparison with the costs for earlier Hobsonville marina consent was specious).”
However, the commissioners said theplanners needed to consider the applications in the context of the unitary plan because the overall plan policy context had changed: “In that respect, we agree that the 2014 Hobsonville Marina consent does not provide a strictly appropriate comparator.
“However, and we note from the timesheets that legal input was sought – presumably at that time for both the exclusive occupation & the live-aboard matters (respective timesheet references are to the period between 31 May and 24 June 2019) – is at odds with the conclusion drawn by Mr Andrews that the application did not raise matters of wider public benefit.
“While we do not have the benefit of whatever legal opinion was sought & obtained, and we did not understand that opinion to have been provided to the applicant, we assume that would have had general application to the matters then at hand – being exclusive occupation of & living-aboard vessels within the coastal marine area/common marine & coastal area (CMA/CMCA) – in terms of applying the unitary plan provisions.
“That is not to say that no legal matters were directly attributable. Clearly checks of the respective empowering legislation & seabed licences were appropriate to establish that these were not impediments, for example, to an extension of term. However, the timesheets are simply not sufficiently disaggregated in terms of tasks for us to be able to determine that level of detail.
“For Bayswater & Hobsonville marinas, with existing consents for exclusive occupation (& live-aboards), an extension for 5 years should have been a straightforward task. In that, we agree with the objector. With respect to Pine Harbour marina, we accept that the application was a fundamental change (notwithstanding the current consent’s authorising of temporary restrictions & actual marina management practice) requiring closer examination.
“We would have thought that there were 3 questions for the council to resolve:
- Are there any legal impediments to granting the applications?
- Are there any unitary plan policy impediments (recognising that the applications were for restricted discretionary activity consent)?
- Do the applications give rise to any adverse effects on the coastal environment?
“On the first question, any legal issues appear to have been cleared away relatively quickly since no s92 further information request (dated 30 July 2019) posed specifically legal questions (other than over the exact footprints sought).
“On the second question, no specific policy matters were raised in the s92 further information requests.
“On the third question, no specific adverse effects on the coastal environment matters were raised in the s92 further information requests, as confirmed subsequently in Dr Sivaguru’s 19 August 2019 report conclusion that ‘adverse effects on the environment will be no more than minor’.
“Unsurprisingly, then, the s95 notification recommendations were to process the 3 applications non-notified, and the s104 recommendations were to grant with essentially the same common set of 6 conditions – the substance of which had been proposed by Mr Shearer in his applications. Those recommendations were adopted by the duty commissioner, whose 3 decisions were released on the same day (6 September 2019).”
Attribution: Hearing & decision.