Ali Williams (left) and Anna Mowbray have gained approval for a helipad at their Westmere property.
Ali Williams (left) and Anna Mowbray have gained approval for a helipad at their Westmere property.
Opinion by Gary Gotlieb
Gary Gotlieb is the former President of the New Zealand Criminal Bar Association and Auckland District Law Society. He was a councillor in the Thames Coromandel District from 2019 to 2025.
THE FACTS
Local authorities can delegate Resource Management Act (RMA) hearings to commissioners.
According to the RMA, the hearings must be held in public, without unnecessary formality and recognise tikanga Māori.
Cross examination is not allowed at these hearings.
Anna Mowbray and Ali Williams’ successful bid to fly helicopters to and from their home in Auckland’s Westmere highlights the unequal playing field between those wealthy enough to fight for such a privilege and those who might disagree with this type of proposal but don’t have the sameresources.
For me, it raises several important questions about the process under which these sorts of applications are decided.
Under the current law (the Resource Management Act), the process to seek consent for particular activities can be very expensive. Only the wealthy can afford experts and lawyers to satisfy the various requirements for an application.
What has developed from this is a group of people who work in this field as consultants, as well as those who act as commissioners, approving or rejecting these sorts of applications. Some of these consultants go on to spend time as commissioners and some commissioners find work as consultants.
When a resource consent application is made for the likes of a helipad, a local authority typically holds a hearing. Under the RMA, a local authority may delegate any hearing to a commissioner or commissioners appointed by them for this purpose. They may or may not be a member of the local authority but can assume any of its functions, powers or duties under the RMA.
According to the RMA, the hearings must be held in public, without unnecessary formality and must recognise tikanga Māori. As well as this, only the chairperson or a member of the hearing is allowed to question parties or witnesses. And, importantly for me, cross-examination is not allowed.
As someone who has practised law for 54 years, such a system is foreign to what I understand to be a proper process.
Such a process, in my view, should test the evidence via cross-examination, allow parties to participate fully, and assist the less fortunate with legal aid to balance the scales of justice.
I have experienced what I believe is a relatively rare situation at one RMA hearing where an experienced commissioner (who is also an experienced lawyer) allowed parties with an interest in the application to seek clarification through him. He then put the questions he thought appropriate to the witness, in what felt far more like a democratic process. Some local authorities tell participants they will allow questions via the hearing’s chairperson, but the extent to which it happens in practice is unclear.
At one hearing this year, I gave evidence as a member of the public opposing an application from someone wanting to build a boatshed over the Waitematā Harbour in Herne Bay where I live. (As an aside, ratepayers probably don’t know that boatsheds over public land do not pay any lease costs for this privilege – they get it for free. In Australia, buildings of this type on public land pay handsome fees.)
Westmere. Photo / Chris Tarpey
The application for the boatshed was opposed by the Herne Bay Residents Association and while yes, it’s a wealthy area, a community group cannot be (and should not be) expected to raise the funds to challenge the numerous experts an applicant often has.
That’s a problem because without a system of cross-examination, the only way you can mount an effective challenge under the regime is to pay for experts to counter what an applicant’s experts are saying. Having to do this pushes up RMA compliance costs, which is a significant issue.
Unless you can afford to do so, the deck is stacked against you. Someone with extensive means who is making an application is motivated to put up expert after expert, and opponents with limited monies are not on equal terms.
This is contrary to Australia, where any application for something like a boatshed on a beach requires signage in a public place to show what is proposed and where there are rules that better allow witnesses to be challenged and tested.
Our system needs to be reconsidered to create a more even playing field and a fundamentally more democratic process for our communities.
