10.2.2 Regulatory and non-regulatory decisions

 

1. Each council decision is either regulatory or non-regulatory [1]. A regulatory decision relates to a regulatory responsibility, duty or power, which the council has been given by legislation. The decision can be enforced against individuals under legislative authority [2]. A non-regulatory decision is simply one that does not relate to a regulatory responsibility, duty or power.

2. The distinction is important. Firstly, the governing body is responsible for the council’s regulatory decision-making (unless it delegates a regulatory decision) [3]. Non-regulatory decisions may be allocated to either the governing body or local boards [4]. Secondly, the council is required to ensure regulatory decision-making responsibility and processes are kept separate from non-regulatory decision-making [5]. However there are times when this is not practical; for example where a decision has both regulatory and non-regulatory components (see Section 10.2.2(g)). 

3. A reason for the distinction is that regulatory decisions often directly affect the rights of individuals. People may be compelled by legislative authority to comply with a regulatory regime. Often a specific process must be followed before a regulatory decision; this is to protect the rights of individuals from arbitrary decisions.  Further, decisions that implement a regulatory regime are often made in accordance with a set of criteria by expert decision-makers acting under delegation from the governing body (e.g. granting resource consents).  These decisions are considered non-political in nature.  However, there are some regulatory decisions, such as bylaws, that the governing body needs to make.

4. In practice, the council complies with the requirement to maintain a distinction between regulatory and non-regulatory decision-making by making appropriate delegations to committees and council staff, (see Section 10.3.3: Delegation of decision-making functions and powers) and by separating decisions when appropriate and practical.

5. Some examples of regulatory council decisions include [6]:

   • making and enforcing bylaws

   • making regulatory policies (e.g. the Local Alcohol Policy and the Class 4 Gambling Policy) (see Section 10.6.4: Decisions to make regulatory policies)

   • establishing plans and issuing consents under the Resource Management Act 1991

   • issuing consents under the Building Act 2004

   • issuing licences under the Gambling Act 2003 and the Sale and Supply of Alcohol Act 2012

   • classifying land under various statutes such as the Reserves Act 1977 and the Public Works Act 1981

   • setting rates and other mandatory levies

   • hearing and determining objections under the Dog Control Act 1996

   • granting registrations and licenses under regulations made under the Health Act 1956.

6. Some examples of non-regulatory council decisions include:

   • making non-regulatory policies and plans that guide the council’s decision-making or action, e.g. the Annual Plan, the Long-term Plan and the Significance and Engagement Policy (N.B. this category does not include regulatory policies and plans under the Resource Management Act)

   • the provision of services and facilities, including setting fees for services (this is separate from fees associated with regulatory decisions, e.g. resource consent application fees)

   • the management of council land and assets

   • council financial management and procurement

   • external contractual and other relationships, including memorandums of understanding, development agreements and public-private partnerships

   • council political governance, including decisions on accountability, appointments, committees and internal allocation of decision-making

   • the release or withholding of official information.

7. It may be difficult sometimes to determine if a decision is regulatory or non-regulatory, as some decisions may include both components. In these cases, the overall decision is considered regulatory and must be made by the governing body (or committee or local board or staff under delegation).  Some decisions may form a chain of decisions that are both regulatory and non-regulatory, for example a non-regulatory decision may lead to a series of regulatory decisions.  In this example, the non-regulatory decision is still non-regulatory as it precedes and may be separated from the subsequent regulatory decisions.

 

 

Previous | Next