Most Read Contributor in New Zealand, September 2016
The appeal, taken by Whakatane District Council against Bay of
Plenty Regional Council (known as Environment Bay of Plenty
(EBOP)), challenged the lawfulness of EBOP's decision to
relocate its head office from Whakatane to Tauranga on the basis
that EBOP had not satisfied the procedural requirements of s 78(2)
of the Local Government Act 2002 (the Act).
Section 78(2) does not specifically require a consultation but
does require that local authorities must give consideration to
community views and preferences at four stages in policy
the stage at which the problems and objectives related to the
matter are defined
the stage at which the options that may be reasonably
practicable options of achieving an objective are identified
the stage at which reasonably practicable options are assessed
and proposals developed, and
the stage at which proposals of the kind described in the
bullet point immediately above are adopted.
EBOP had sought a report from Deloitte regarding the most
feasible location and had resolved in principle on 7 December 2006
to adopt the Deloitte recommendation that it move to Tauranga. On
15 March 2007, EBOP publicly notified the necessary amendments to
its 10 year plan and invited the public to make submissions, in
writing by 2 May or in person from 21 May to 24 May.
However the Appeal Court ruled that these steps were
insufficient to satisfy s 78(2) and the relocation has been put on
Section 78 (2) for the chop
A Bill to amend the LGA (the Local Government Act 2002 Amendment
Bill) has had its first reading and is due to be reported back to
the House from select committee on 4 November 2010. The Bill
repeals s 78(2) outright.
The change will mean that, while councils will still have to
consider the views and preferences of potentially affected persons
when making "significant" decisions, it will be easier to
justify doing this just once per project rather than on the four
separate occasions listed in the current legislation.v
But until the Bill is enacted, s 78(2) will remain in force and
the Appeal Court's decision will stand.
Wider implications of the judgment
Consultation on important policy issues is a matter of natural
justice and good governance and the highly prescriptive provisions
of s 78(2) are designed for only the most significant
Nevertheless, the legal exposure the judgment creates for
councils has the potential to tie local government decision-making
in knots, or at least to significantly slow it down –
especially for large projects that fall into the "significant
Policy areas which might be affected could include: an overhaul
of public transport services, the introduction of metered water,
changes to recycling policy or, in Wellington's case, the
proposed creation of a "super city".
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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