New Local Government Bill

David McGregor, Senior Partner | February 2002

On 19 December 2001 all 274 sections (including 21 schedules and comprising a total of 357 pages) of the new Local Government Bill saw the light of day when the Minister of Local Government, Sandra Lee, introduced it to the House for its first reading. Local Government can now consider itself no long the poor cousins of Central Government but rather a separate sphere of government in its own right.

The Bill has been produced after extensive consultation undertaken by the Department of Internal Affairs and analysis in respect of a discussion document entitled "Reviewing the Local Government Act 1974".

It is in accordance with Labour Government policy that it be clearer, simpler and better aligned with the principles of empowerment and accountability than the 1974 Act.

Conceptually it is fundamentally different to its predecessor to the extent that any comparisons are really only of academic value.

Submissions to the Local Government and Environment Select Committee on the bill closed on 22 February 2002 with a report due from that Committee back to the House on 14 May 2002.

Presently, it is envisaged that the Bill will become an Act and come into effect on 1 July 2003.

However, this is with the exception of the provisions relating to the preparation of planning, consultation and decision-making, and provisions regarding water and the electoral amendment, all of which will come into effect on the day after Royal Assent is given to the Bill.

No doubt the submissions to the Bill will be as comprehensive as the response to the earlier discussions (in excess of 600). In addition to the philosophical change in the basis of the legislation (from prescriptive to enabling) there are a number of new concepts.

The main thrust of these new concepts is the power of general competence (already the subject of much attention) which emerge in Part 2, in particular Clause 9, as equating to an organisation or individual's normal capacity and legal authority to act.

The concept is analogous to the provisions of the Company's Act 1993 giving a company "full capacity to carry on or to undertake any business or activity, do any act or enter into any transactions" and for these purposes "having full rights, powers and privileges".

The move in the private corporate sector from prescriptive to enabling has been relatively trouble free so it may not be unrealistic to imagine that this will be the experience with the new legislation.

Although the concept is unlikely to appeal to the Round Table, the performance standards or principles relating to performing these powers set out in clause 12 press all the right buttons in terms of politically correct processes.

The replacement of the prescriptive presumption in favour of the general power is subject to the imposition of specific prohibitions, limitation and requirements, which include new provision requirements for consultation and accountability.

This does not extend to general discretion to any coercive or regulatory power or the provisions of other statues.

There is extensive provision for the relationship of local authorities to the Treaty of Waitangi both in respect of input and decision-making with regards to participation in and providing appropriate accountability for effective collaboration between Local Government to Maori.

While most units of Local Government have established protocols in the non-statutory sense in respect of these issues, there is no doubt that this will impact upon both the consultative mechanisms within the Bill and its specific provisions in respect of decision-making.

An example of the difficulties that may be encountered in respect of decision-making, can be seen in the recent decision of the Environment Court in the case of Canterbury Regional Council v Pegasus Coastal Estates Limited (now Southern Capital Limited), decision number C5/202/.

The Court was confronted with "a sincere pocket of intense opposition" from a small dissident group of Maori who brought matters of some significance to the attention of the Court at a later stage.

While it was considered by the Court that it would be a travesty of justice to arbitrarily halt any further consideration of development as a result of those concerns, clearly there had been "process difficulties" related to the management of the consultation undertaken.

Linked with this issue and the new provisions relating to consultation are the principles set out in clause 66 and how these will apply to significant proposals pursuant to the special consultative procedure or otherwise.

Consultation, particularly in the context of resource management, has been a difficult concept particularly where it is undertaken in the non-statutory sense. So, no doubt, is the expectation of the new legislation in respect of all decisions - not just those required in respect of the special consultative procedure.

The High Court's exacting standards in respect of consultation derived from the Wellington International Airport Limited v Air New Zealand Court of Appeal 1992 case. This will no doubt be fertile ground for how these provisions are applied. The Court's determination of consultation in the context of that was that:

"Consulting involves a statement of appraisal not yet finally decided upon, listening to what others have to say, considering their responses and deciding what will be done."

Consultation is not a negotiation. There is not necessarily an objective of arriving at an agreement. Standards prescribed for a consultation included the following:

• Consultation occurs while options are still open;
• people being consulted receive sufficient information to be adequately informed for the purpose of making an intelligent response;
• people are provided with further information on request;
• people are given a fair opportunity to express their viewpoint;
• their viewpoint should be shown to have been considered; and
• the decision is not made until people have had their say.

The Bill's provisions do not address this level of detail.

The provisions of the Bill relating to competence for regional councils are saviours in the sense of timeliness to achieve what is otherwise an exhaustive process in obtaining consensus.

Growth Strategies, Mayoral Forums and CEO Forums now fit more comfortably into the cycle of local government activity.

Transport

In the October 2001 issue this column was devoted to the sense of despair associated with the lack of national purpose in relation to a Transport Strategy. While there is still no announcement from either the Ministry or the Minister, progress continues at an operational level.

Congratulations to Environment Waikato in the expeditious promulgation of a Regional Land Transport Strategy: an analysis of submission to it and scheduled hearing times.

The Government has appointed a Transport Advocate to assist its interface with Auckland's dilemmas. Concomitant to this the Local Government and Environment Select Committee are due to report back on Penlink (the Rodney District Council proposal for a private road incorporating the crossing of the Weiti River) on 4 March 2002.

In the meantime, there is clear evidence throughout the country of roadwork during the construction period (often with plenty of opportunity to observe it given the delays encountered with crashes now becoming crime scenes).

Motorway construction in Auckland is a reality in the Grafton Gully and necessitating better "trip planning". It might still make more sense, however, if these was some form of National Strategy.