5.5 Types of council decisions
The varied nature of council decisions
Council decisions vary in the discretion exercised, the process, the decision-maker and the significance to people and the region. Council decision-makers should be aware of the type of power they are exercising.
The nature of the decision affects the requirements and principles that apply. Important features of a decision include:
Statutory power
The legislation may prescribe certain processes or obligations where the decision-maker is exercising a specific statutory power. If the source is the council’s power of general competence, there may not be any specific processes to follow and the general decision-making requirements in the Local Government Act 2002 may be more important.
Nature of the discretion exercised
Every decision requires the decision-maker to exercise some sort of discretion. Some council decisions are political or involve mainly policy considerations, others are more administrative or operational. Decision-makers will normally have more discretion when making policy decisions. By contrast, administrative decision-makers have more limited discretion as they usually have a set of criteria to apply to a particular case. Most decisions fall somewhere on a spectrum rather than being purely political or administrative.
The decision-maker
A range of people are responsible for council decisions, including elected members, council employees and independent experts. Elected members are expected to act in a politically and democratically accountable manner and may need to be more impartial and objective when making certain types of decisions.
For more information visit How the council makes decisions.
Impact of the decision
Decisions can apply broadly or they can affect a particular individual. Decisions that impact a single individual are likely to give rise to natural justice obligations, while decisions with broad application are more likely to require public consultation (but may also come with obligations to consult specific people).
Regulatory and non-regulatory decisions
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 one that does not relate to a regulatory responsibility, duty or power.
Why the distinction is important
The Governing Body is responsible for the council’s regulatory decision-making, and it may also delegate a regulatory decision [3]. The Governing Body is also responsible for allocating all non-regulatory decisions to either the Governing Body or local boards [4].
The council is required to ensure regulatory decision-making responsibility and processes are kept separate from non-regulatory decision-making [5].
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.
Why regulatory decisions are treated differently
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 (for example 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.
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, (visit Who makes council decisions for more) and by separating decisions when appropriate and practical.
Examples of regulatory council decisions
Some examples of regulatory council decisions include [6]:
- making and enforcing bylaws
- making regulatory policies (for example the Local Alcohol Policy and the Class 4 Gambling Policy) (visit Special decisions and hearings for more)
- 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.
Examples of non-regulatory council decisions
Some examples of non-regulatory council decisions include:
- making non-regulatory policies and plans that guide the council’s decision-making or action, for example 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, for example 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.
Footnotes
[1] See 10.2.2(h) for discussion of decisions that appear to have both regulatory and non-regulatory elements.
[2] The terms ‘regulation’ and ‘regulatory’ refer to the exercise of control or supervision or authority in relation to others.
[3] Local Government Auckland Council Act 2009 s 15(1)(a).
[4] Local Government Auckland Council Act 2009 s 17. See 10.4.2.
[5] Local Government Act 2002 s 39(c).
[6] This list is an illustrative rather than exhaustive list of all council regulatory decisions.