5.8 Special decisions and hearings
Decision-making on annual plans, long-term plans and rates
There are special rules in the Local Government Act 2002 governing how the council makes its long-term and annual plans. The council must at all times have a long-term plan in place [1] and must adopt one every three years [2]. A long-term plan describes the council’s activities and its budget over a 10-year period [3]. The council adopts an annual plan in the years between the long-term plan’s three-year cycle. The annual plan contains the council’s annual budget and financial impact statement and identifies any variations from the long-term plan [4].
Role of the mayor and local boards
It is the mayor’s role to lead the development of the long-term plan and annual plan [5], and it is for the Governing Body to make the decision to adopt them [6]. Typically, the mayor will recommend the key items for the proposal for public consultation in November
Local boards are responsible for identifying and communicating the interests and preferences of people in their areas. They also have responsibility for reaching agreement with the Governing Body in relation to the local board agreements, which form part of the council’s annual and long-term plans.
Consultation before adopting a long-term plan
Before the Governing Body can adopt a new long-term plan, it must consult using a modified special consultative procedure under the Local Government Act 2002 [7]. The Governing Body must adopt a long-term plan prior to the previous plan expiring (which it does after it has been in force for three years). This means it must be adopted on or before 30 June of the relevant year [8].
Long-term plans can (and sometimes must) be amended using the special consultative procedure under the Local Government Act 2002 [9].
Consultation before adopting an annual plan
The council needs to undertake consultation before adopting an annual plan if that plan contains significant or material differences from the long-term plan. The council does not need to use the special consultative procedure for this consultation, but when consulting, the council will use a consultation document [10].
Consultation for our annual and long-term plans usually runs from late February to late March every year. After consultation, elected members consider the public feedback and any new information before adopting a final budget in May.
Decision-making on rates
The setting of rates is a special type of decision made by the Governing Body under the Local Government (Rating) Act 2002.
There are several categories including general rates, targeted rates and the uniform annual general charge. All categories are set by the Governing Body [11] immediately following the adoption of the annual plan or the long-term plan [12].
In practice this means a separate rates report is put to the Governing Body directly after the relevant plan is adopted.
Hearings
The council holds a hearing before making some types of decisions. A hearing is a structured decision-making process that allows for submissions and evidence from affected parties to be heard and weighed fairly. Council hearings are often referred to as quasi-judicial as they are similar to a court process.
For some council decisions, such as some decisions made under the RMA, the relevant legislation requires that a hearing be held. The council may also decide to hold a hearing into a particular matter.
Hearings can be held when a decision requires a greater degree of impartiality or balance on the part of the decision-maker, because it will directly affect the rights of individuals.
Bylaws
A number of statutes empower the council to make bylaws. The most significant is the Local Government Act 2002 and others include the:
In addition, local boards can propose bylaws to the Governing Body.
All applicable bylaws are viewable on the council's website, search for 'bylaws'.
Process for making a bylaw under the Local Government Act
The process for making a bylaw under the Local Government Act 2002 requires the council to follow a series of steps.
The council will need to determine whether a bylaw is the most appropriate way of addressing the perceived problem [13]. This should be discussed in a council policy paper that identifies the problem, the range of existing regulatory tools available and their limitations. The relative merits of any other non-regulatory options should also be considered.
If a bylaw is the most appropriate solution, create a draft [14]. This involves considering the different forms a bylaw could take (for example standalone, amendment to existing, consolidation of other bylaws), the scope of the bylaw, and the powers it confers on the council. It is important to confirm the proposed bylaw is within the scope of the empowering provisions that allow the council to make the bylaw.
The council will need to assess whether the draft bylaw gives rise to any implications under the New Zealand Bill of Rights Act 1990 [15]. A bylaw must not be inconsistent with the New Zealand Bill of Rights Act.
Identify the right consultation process
The council will need to identify which consultation process must be used based on the council’s Significance and Engagement Policy [16]. The special consultative procedure under the Local Government Act 2002 must be used if the bylaw concerns a matter identified in the policy as being of significant interest, or if the council considers the bylaw is likely to have a significant impact on the public. In all other cases, the council must consult in a manner that gives effect to the requirements of section 82 of the LGA 2002. This means that section 82A of that Act applies and must be adhered to.
Prepare and adopt a statement of proposal
As part of the process, the council will need to prepare and adopt a statement of proposal (for a special consultative procedure [17] or document meeting the requirements of section 82A(2) of the LGA02 (for a section 82A process).
This document will set out the relevant policy matters and include a draft of the proposed bylaw. If necessary to enable public understanding, the council must also adopt a summary of the information in the statement of proposal [18]. The Governing Body has (in its terms of reference) retained the power to approve a draft bylaw prior to community consultation.
Other guidelines:
- Undertake the consultation process by publishing the material adopted in statement of proposal and explaining how people may present their views to the council [19]. There is a minimum 30-day period for views to be presented if the special consultative procedure is used. The council must allow for people to present their views by way of spoken (or sign language) interaction with decision-makers, for example holding a hearing or 'have your say' event. If a section 82A procedure is being used, people should be given a reasonable opportunity to present their views.
- Consider the views of submitters in making a decision on whether to adopt the proposed bylaw. Any amendments must be within scope, which means they should be within the reasonable contemplation of a person reading the original statement of proposal. If the Governing Body has delegated responsibility to a panel to hear submitters’ views, it must make a recommendation to the Governing Body. Only the Governing Body can make or amend a bylaw.
- Provide a public notice with the date the bylaw will become operative and where copies are available [20].
Process for making a bylaw under other legislation
The process above may differ if a bylaw is being made under another enactment. Some Acts require bylaws to be made as if they were created under the Local Government Act 2002 (for example the Health Act, the Dog Control Act and the Waste Minimisation Act). Some have modified procedures (for example the Freedom Camping Act and Prostitution Reform Act). Some provide no specified procedures at all (Litter Act), the process for these should generally conform with the Local Government Act 2002.
Care must be taken to ensure all relevant procedural aspects are followed if the council proposes making a bylaw under an act other than the Local Government Act.
Decisions to make regulatory policies
The council may make the following types of regulatory policies.
Local alcohol policy
This policy contributes to the regulation of alcohol outlet locations, hours and conditions, pursuant to the Sale and Supply of Alcohol Act 2012. A District Licensing Committee must take a local alcohol policy into account when making decisions on licensing applications. The maximum hours set in the local alcohol policy apply automatically. The policy is enforced by the council’s licensing inspectors and the police.
Local approved products policy
This policy regulates the locations from which approved psychoactive products (often referred to as legal highs) may be sold, pursuant to the Psychoactive Substances Act 2013. Restricted locations may be identified by way of broad area or proximity from facilities such as schools. The council has no role in enforcement, the issuing and enforcement of licences is handled by the Psychoactive Substances Regulatory Authority.
Dog control policy
This policy identifies Auckland locations where dogs are permitted under control off a leash, on a leash, or are prohibited, pursuant to the Dog Control Act 1996. Restrictions may differ according to times of the day or seasons (for example they might be relaxed during the winter months when there are fewer non-dog owners using public spaces). The policy itself is non-regulatory but a bylaw must be made under the Dog Control Act to give effect to the policy. It is enforced by the council’s animal management team.
Class 4 gambling venue policy
This policy regulates class 4 gambling machine (pokie machine) venues, by determining whether new machines will be permitted in Auckland, the location of these venues, and the number of machines permitted per venue, pursuant to the Gambling Act 2003. Any operator wishing to establish a new venue must obtain the council’s consent under the policy.
Board venue policy
This policy regulates TAB racing venues and determines if and where new venues will be permitted, pursuant to the Racing Act 2003. The TAB must obtain the council’s consent if it wishes to open a new venue or relocate an existing venue.
Process for making regulatory policies
The process for making regulatory policies is set out in the respective empowering statutes.
The Local Approved Products Policy [21], Dog Control Policy [22], Class 4 Venue Policy [23], and Board Venue Policy [24] must be made in accordance with the special consultative procedure under the Local Government Act 2002. The legislation under which these policies are made also includes special notice requirements.
The local alcohol policy has its own process set out in the Sale and Supply of Alcohol Act 2012 [25]. This involves the special consultative procedure under the Local Government Act 2002 to produce a provisional policy. But it also involves mandatory consultation with the police, licensing inspectors and medical officers. There is a right of appeal to the Alcohol Regulatory and Licensing Authority against the council’s provisional policy [26].
In every case, the general principles of decision-making apply when the council is making regulatory policies (visit Meeting procedures for more).
Footnotes
[1] Local Government Act 2002 ss 93(1) and 95(1).
[2] Local Government Act 2002 s 93(3).
[3] Local Government Act 2002 ss 93(6) and (7).
[4] Local Government Act 2002 ss 95(5)(a) and (b), Sch 10 clauses 18-22.
[5] Local Government Auckland Council Act 2009 s 9(2)(a).
[6] Local Government Auckland Council Act 2009, s 15(1).
[7] Local Government Act 2002 ss 93(2) and s 93A(1).
[8] See definition of financial year in Local Government Act 2002 s 5.
[9] Local Government Act 2002 s 93D.
[10] Local Government Act 2002 ss 95(2), 95(2A), 82A(3) and 95A.
[11] Local Government Act 2002 sch 7 cl 32.
[12] LG (Rating) Act s 23(2).
[13] Local Government Act 2002 s 155(1).
[14] Local Government Act 2002 s 155(2)(a).
[15] Local Government Act 2002 s 155(2)(b).
[16] Local Government Act 2002 s 156(1).
[17] Local Government Act 2002 s 86.
[18] Local Government Act 2002 s 83(1)(a)(ii).
[19] Local Government Act 2002 ss 83(1)(b)-(c), 82A(2).
[20] Local Government Act 2002 s 157(1).
[21] Psychoactive Substances Act 2013 s 69(1).
[22] Dog Control Act 1996 s 10(1).
[23] Gambling Act 2003 s 102(1).
[24] Racing Act 2003 s 65E.
[25] Sale and Supply of Alcohol Act 2012 s 79.
[26] Sale and Supply of Alcohol Act 2012 s 81.