Councils advised to keep information for resource consents until all appeals exhausted
Grape grower sought transparencies used in Council hearing for resource consent—Council had destroyed transparencies in accordance with 15 year practice on basis that the information was generic—Council created new transparencies with same information—grape grower alleged the information was not the same as on the originals—Ombudsman unable to compare the two —Council agreed to change practice and retain information used in hearings until all appeals exhausted
A grape grower applied to a District Council for a resource consent to extract ground water from local aquifers for irrigation purposes. During the Council hearing, council officers presented information concerning the local aquifers and their current usage. Included in the submissions was information contained in two overhead projector transparencies. The consent application was later declined.
The grape grower lodged an appeal and requested that the Council provide him with the transparencies as he believed that the information contained on them was incorrect. The Council advised that the transparencies had been destroyed but said it would provide the requester with the same information on new transparencies. When the grape grower received the new transparencies, he was of the view that they contained different information to that which was on the originals.
The grape grower complained to the Ombudsman. His complaint was twofold: that council officers should have retained the overhead projector transparencies used when the Council heard the application for water extraction, particularly as they should have known an appeal was likely; and that, when the Council was asked to replicate the information that was in the original transparencies, the information received was different.
The Ombudsman wrote to the Council requesting a report on these complaints, including advice as to what steps the Council had taken to resolve the difference between what the grape grower believed was contained in the overhead transparencies and that which the Council provided. The Council explained that over the last 15 years, it had not been the Council’s practice to retain overhead transparencies used for Council hearings because the information was generic and already held by the Council. However, it acknowledged that the transparencies could have been kept on file, especially when an appeal was a possibility.
With regard to the transparencies the Council had recreated, it did not agree that there was a difference in the content of the information compared with the originals. Rather, it believed that the new transparencies comprehensively communicated the information they were originally intended to.
While the Ombudsman was unable to compare the two versions, he noted that the grape grower had made a submission to the Environment Court based on what he thought was in the original overhead transparencies, but this was not successful.
The Council advised that it had reviewed its procedures and, as a result, its officers had been instructed to ensure that all material used at hearings is retained until all appeals have been heard.
Given that the Ombudsman was not in a position to compare the two different sets of transparencies as the first set had been destroyed, he was unable to form a view on the matter. However, he was satisfied that the Council had taken appropriate steps to ensure that this would not be an issue in the future.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.