5.6 Who makes council decisions
Every decision the council makes must be empowered by legislation. This means each decision is made under either:
- a specific power given to the council by legislation
- the council’s power of general competence (this broadly allows it to make any decision that an ordinary person or body corporate could make while carrying out the council’s role and purpose) [1].
The council’s shared governance structure means that both the Governing Body and local boards are responsible and democratically accountable for decision-making at Auckland Council [2]. Responsibility for specific decisions depends on the nature of the decision [3].
A broad range of decision-making obligations and principles apply to the council’s decisions, including statutory and public law requirements. How these principles apply to any particular decision depends on its nature and the context.
Role of the Governing Body and local boards
The Governing Body and local boards are responsible and democratically accountable for the council’s decision-making [4]. In general, the Governing Body focuses on region-wide strategic decisions, while the 21 local boards represent their local communities and make decisions on local issues, activities and facilities.
There is a difference between who is ultimately responsible for decision-making about a particular activity and who is tasked with making the decisions on a day-to-day basis. In practice, many of the council’s decisions are made under delegation by committees or staff.
Each decision is made either by:
- the Governing Body or a local board by resolution of that body
- a committee, person (such as a council staff member) or other entity under delegation from the Governing Body or a local board. (The Governing Body or local board that made the delegation remains ultimately responsible for the decision.)
- a person exercising statutory powers that they have because of their role or office (for example: a warranted enforcement officer has statutory powers to make decisions related to their role). In this case, the decision is made by the statutory decision-maker under the authority of the Governing Body.
Division of responsibility between the Governing Body and local boards
The general principle is that the Governing Body focuses on the regional picture and is responsible for decisions with an Auckland-wide impact or focus, as well as the council’s regulatory decision-making. Local boards are responsible for non-regulatory decisions that impact their local areas, unless there is a good reason why a decision should be made on an Auckland-wide basis.
The Local Government (Auckland Council) Act 2009 sets out technical rules for how the council shares decision-making responsibilities. These fall into four classes [5]:
- decision-making the Governing Body must be responsible for
- decision-making local boards must be responsible for
- other non-regulatory decision-making for which responsibility can be allocated to either the Governing Body or the local board
- special cases of decision-making about local activities for which both the Governing Body and local boards are responsible.
The Governing Body must be responsible for the following decisions [6]:
- regulatory responsibilities, duties or powers (including the Unitary Plan, resource consents and bylaws)
- financial management (including the Annual Plan, the Long-term Plan and financial policies)
- governance of council-controlled organisations
- transport networks and infrastructure
- acquisition and disposal of assets
- the chief executive’s appointment and performance
- the council’s capacity to establish and maintain services and facilities
- the allocation of non-regulatory decision-making responsibilities either to itself or to local boards.
Following are the decisions that the local boards must be responsible for [7]:
- identifying and communicating the interests and preferences of their communities as they relate to council strategies, policies, plans and bylaws
- identifying and developing bylaws specifically for its local board area, and proposing them to the Governing Body
- the agreement reached with the Governing Body (as set out in the local board agreement) in respect of local activities for its local board area
- adopting a local board plan [8].
Allocation of non-regulatory activity
Decision-making for any other non-regulatory activity must be allocated by the Governing Body either to itself or local boards [9]. The Governing Body must consider the views and preferences of local boards and apply the principle that local boards should be responsible for non-regulatory decisions unless decision-making on a region-wide basis will better promote the well-being of Auckland communities [10]. The reasons why Governing Body decision-making may be appropriate are [11]:
- the impact of the decision will extend beyond a single local board area
- effective decision-making will require alignment or integration with other Governing Body decisions
- the benefits of a consistent or coordinated approach across Auckland will outweigh the benefits of reflecting the diverse needs and preferences of the communities within each local board area.
The allocation of the council’s non-regulatory decision-making responsibilities is included in its long-term plan. The Governing Body may review this allocation at any time. In practice this occurs every three years during the long-term planning process.
Disputing an allocation
There is provision in the legislation for a local board to dispute an allocation made by the Governing Body [12]. If one or more local board is dissatisfied with an allocation decision, both must make reasonable efforts to reach a solution [13]. If they cannot do so, the local board(s) may request a binding determination on the matter from the Local Government Commission [14]. After following a complaints process, the commission can issue a binding determination and amend the allocation table [15].
Delegation of decision-making functions and powers
The Governing Body and local boards do not (and could not practically) make all the decisions they are responsible for. Many decision-making functions are delegated for efficiency and effectiveness [16]. These include:
- the Governing Body delegating certain functions to Governing Body committees or members, local boards and to the chief executive
- local boards delegating certain functions to their committees or members and to the chief executive
- the chief executive delegating certain functions to council staff
- the Governing Body and local boards delegating certain functions to external people or bodies such as independent hearings commissioners and CCOs.
As a general rule, most of the council’s day-to-day functions and powers are delegated to council staff. However, elected members will generally make significant decisions relating to the council’s governance, especially significant policy decisions.
When a function or power is delegated:
- The delegated function or power can be performed or exercised in the same way and to the same legal effect as if the Governing Body or local board performed or exercised it [17].
- The Governing Body or local board that made the original delegation remains legally responsible for the performance or exercise of the function or power [18].
Functions that can and cannot be delegated
As a general rule, a decision-making function or power can be delegated unless there is a rule to prevent this [19]. There is a group of decision-making responsibilities that cannot be delegated for both the Governing Body and local boards. These restrictions apply only to delegating the actual decision. They do not prevent the Governing Body or local boards from delegating preparatory work to inform the actual decision [20]. For example, the Governing Body can delegate the functions of drafting a bylaw and conducting public consultation but cannot delegate the decision to make the bylaw.
The Governing Body cannot delegate the power to [21]:
- make a rate
- make a bylaw
- borrow money, or purchase or dispose of assets other than in accordance with the long-term plan
- adopt a long-term plan, annual plan or annual report
- appoint a chief executive
- adopt policies under the Local Government Act 2002 in association with the long-term plan or developed for the purpose of the council’s local governance statement
- adopt a remuneration and employment policy.
Local boards cannot delegate [22]:
- the duty to identify and communicate the interests and preferences of their communities in relation to council strategies, policies, plans and bylaws
- the power to propose a bylaw or an amendment to a bylaw
- the power to confirm a bylaw or modify a proposed bylaw
- the power to propose the revocation of a bylaw
- the duty to adopt the local board plan for its area
- the duty to enter into a local board agreement for its area with the Governing Body
- the power to apply to the Local Government Commission for a binding determination if there is a dispute between the local board and the Governing Body
- any statutory responsibility, duty or power that expressly may not be delegated.
Sub-delegation
A function or power can generally be sub-delegated, subject to any conditions imposed by the person or entity that made the original delegation [23]. (Note that a person making a delegation can specify that it may not be sub-delegated.)
Specific delegations
In practice, the Governing Body makes a series of delegations to its committees and records them in its Terms of Reference. The Governing Body may also use the Terms of Reference to specifically retain certain responsibilities.
Delegations from the Governing Body to local boards
The Governing Body may delegate functions or powers to local boards [24]. In deciding whether to delegate a power or function to local boards, the Governing Body must weigh the benefits of reflecting local circumstances and preferences against the importance and benefits of using a single approach throughout the region [25].
The Governing Body has delegated the following functions to local boards:
- exemptions under the Fencing of Swimming Pools Act 1987
- input into notification decisions for resources consent applications
- authorising the destruction of wandering stock on Great Barrier Island, in accordance with the Impounding Act 1955 [26]
- decision-making on operational cemeteries on Great Barrier Island [27]
- amendments to the Policy on Dogs in relation to any dog access rules in local parks, local beaches or local foreshore areas in their local board area
- making objections to liquor licensing applications under the Sale and Supply of Alcohol Act 2012
- making, amending or revoking alcohol bans, except in areas of regional significance.
Local boards are accountable to the Governing Body for the performance of the delegated function or power, while the Governing Body remains responsible for it. This is in contrast to allocated functions, for which local boards are responsible.
Delegations to the chief executive and to council staff
The Governing Body and local boards make delegations to the chief executive. These delegations are an important part of the council’s effective operation and allow staff to perform their roles.
To ensure that staff members have the powers they need to perform their roles, the council has taken an empowering rather than prescriptive approach to delegations.
The Governing Body and local boards delegate all their powers and functions to the chief executive, subject only to certain limits set out in the Combined Chief Executive’s Delegation Register. These include financial limits and, in the case of local board delegations, local board protocols [28].
The chief executive delegates the functions and powers relating to a particular council department to staff in that department (including powers originally delegated by the Governing Body and local boards [29], as well as those conferred directly on the chief executive by statute [30]). Some of these functions and powers are restricted to staff in specific tiers (e.g. senior managers).
In practice, the delegations register also contains general principles that apply to the delegated powers, including:
- a delegation to a staff member holding a named position or level of authority is also delegated to all officers in a direct line of authority above that officer
- a delegation to a staff member holding a named position is also delegated to an officer who performs or exercises the same or a substantially similar role or function
- a staff member who is given a delegation is also delegated any ancillary responsibilities, duties or powers necessary to give effect to the delegation
- staff may not sub-delegate any powers of functions given to them by the chief executive.
The chief executive may also refer any matter to the Governing Body or the relevant local board for a decision. In practice this could occur when the matter has high policy content or is particularly significant, contentious or of high public interest.
Delegations to external organisations or CCOs
From time to time, the council may delegate functions or powers to external people or organisations, for example functions and powers under the Resource Management Act 1991 to independent hearings commissioners [31].
The council also delegates to its council-controlled organisations (CCOs) functions and powers relevant and necessary for them to conduct their business effectively and efficiently and according to its statement of intent.
Footnotes
[1] Local Government Act 2002 s 12(2). See section 10.2.
[2] Local Government Auckland Council Act 2009, s 14(2). See section 10.2.
[3] Local Government Auckland Council Act 2009, s 14(2). See section 10.2.
[4] Local Government Auckland Council Act 2009 s 14(2).
[5] Local Government Auckland Council Act 2009, ss 15, 16 and 17.
[6] Local Government Auckland Council Act 2009, ss 12, 15 and 17; LGA02 Schedule 7 clause 32.
[7] Local Government Auckland Council Act 2009, s 16(1).
[8] Local Government Auckland Council Act 2009, s 20(1).
[9] Local Government Auckland Council Act 2009, s 17.
[10] Local Government Auckland Council Act 2009, s 17(2).
[11] Local Government Auckland Council Act 2009, s 17(2)(b).
[12] Local Government Auckland Council Act 2009 ss 97, 97 and 99.
[13] Local Government Auckland Council Act 2009 s 97(2).
[14] Local Government Auckland Council Act 2009 s 97(3).
[15] Local Government Auckland Council Act 2009 s 98.
[16] Local Government Act 2002 Sch 7 cl 36C(1).
[17] Local Government Act 2002 Sch 7 cls 32(4) and 36D(4)(a).
[18] Local Government Act 2002 Sch 7, cls 32(7) and 36D(5).
[19] Local Government Act 2002 Sch 7, cl 36C(1).
[20] Local Government Act 2002 Sch 7, cls 32(2) and 36D(2).
[21] Local Government Act 2002 Sch 7, cl 32(1).
[22] Local Government Act 2002 Sch 7, cl 36D.
[23] Local Government Act 2002 Sch 7, cls 32(3) and 36D(4)(b).
[24] Local Government Act 2002 Sch 7, cl 36C(1). The matters that the governing body may not delegate are set out in LGA02 Sch 7, cl 32(1)(a) to (f).
[25] Local Government Act 2002 Sch 7, cl 36C(3).
[26] Delegated to the Great Barrier Local Board.
[27] Delegated to the Great Barrier Local Board.
[28] Delegations Register, Local Board delegations, Sch 2.
[29] Local Government Act 2002 Sch 7, cl 32. The Chief Executive sub-delegates responsibilities, duties and powers subject to any conditions and limits imposed by the governing body or local board in the original delegation.
[30] Local Government Act 2002 Sch 7, cl 32B.
[31] Resource management Act 1991 s 34A.