5.1
In this Part, we discuss specific circumstances and operational matters identified by the sector as a challenge.

5.2
We discuss:

• using information held by a local authority to inform decisions;
• interpreting the meaning of “reasonable access to relevant information in an appropriate format”;
• meetings and workshops with elected members;
• giving effect to consultation;
• decision-making and consultation in a commercial context;
• managing changes to the LTCCP;
• using summary documents; and
• recording the decision.

Using information held by a local authority to inform decisions

Issue

5.3
Many local authorities hold a significant amount of information from a variety of consultation processes. However, they may not hold this information in such a way that all staff can access it.

Discussion

5.4
Most local authorities have a consultation or engagement policy, or are in the process of preparing one. It is important that it is readily available for staff and kept up to date. The policy will be determined by a number of factors, including the local authority’s size and available resources. Such a policy should support the information requirements for consultation as well as the local authority’s needs for using consultation information in its decision-making.

5.5
Local authorities also have information from a variety of sources, such as previous consultations, submissions, complaints, media reports, public enquiries, community forums and meetings, surveys, and other LTCCP and annual plan preparations, as well as from informal contacts with the local community. In addition, local authorities hold information from consultations done under other legislation or for other purposes, such as the Resource Management Act or a Water and Sanitary Services Assessment. This information is often not stored by a local authority in a way that enables others who are dealing with similar issues, or with the same community on another issue, to use it. Such information sharing could be enabled by an information policy that provides a systematic basis for storing and retrieving consultation information.

5.6
In practice, a local authority may use information from relatively informal sources when making decisions. In this case, it would be good practice for the local authority to be open about what information it has used.

5.7
In addition, having a system to collect, manage, and share information between a local authority’s departments may help to reduce what many people call “consultation fatigue” or “over-consultation”, which can be evident when a local authority has approached a community several times on the same or a similar topic.

Examples

5.8
Environment Waikato is developing an access database to track the results of consultation carried out for different projects. The intention is to share this package regionally with district councils so others have access to a tool for storing their consultation information.

Interpreting the meaning of “reasonable access to relevant information in an appropriate format”

Issue

5.9
We receive many enquiries where people are concerned that relevant information has not been provided in consultation material (usually the special consultative procedure) or that the community has not been provided with reasonable access to relevant information during some stage of community engagement on a particular issue.

Legislative requirements

5.10
Section 78(3) states that the requirement to consider community views does not constitute an obligation to consult. But if a local authority decides to consult, section 82 sets out a number of principles, including the principle that the local authority must provide people who are interested in, or affected by, the decision with reasonable access to relevant information in an appropriate format.

Discussion

5.11
When consulting, a local authority should present the community with information on the effects of the decision on the four aspects of community well-being, as well as information on long-term and short-term issues (including financial), so that community members can give an informed response. The amount of information is a matter of judgement for the local authority, but providing information on options and long-term effects contributes to meeting the requirement to provide “relevant information” in consultation processes (section 82(1)(a)).

5.12
In the consultation processes that a local authority may use in facilitating community outcomes, providing “reasonable access to relevant information in an appropriate format” that allows a community to discuss what is important to them (section 91(2)) is particularly relevant.¹ The requirement in the Act for a local authority to monitor and provide a three-yearly report on community outcomes, and the requirement to report on its own activities and progress towards community outcomes in its annual reports, will provide some, if not all, of this information. The information will be more relevant if the local authority provides the community outcomes report to the community in enough time for the information to inform community debate.

5.13
In both large and small communities, the media can have considerable effect on the level of community knowledge about a particular issue. This can, in turn, affect how elected members approach their decision-making. It is good practice for local authorities to provide timely and enough information to their local media, as this can assist local communities to have good information.

5.14
One question that causes considerable debate is how much information to provide to communities, particularly when a number of complex options are or have been considered over some years. There are no hard and fast rules on what is too much or too little information. These are matters of judgement for local authorities and depend on a number of factors, such as the amount of previous information provided to the community, the level of interest in the issue, and the effect of the decision. For significant decisions taken in stages over some time, it is useful if consultation material refers to previous decisions or consultations on the issue, so that interested people can access the information if they wish.

5.15
We have had enquiries about local authorities including information on only one option in consultation material and whether relevant information had been omitted. As we discuss in paragraph 5.11, this is a matter of judgement, but it can be helpful if later consultation material refers to earlier options. Local authorities have a leadership role, and it is appropriate for them to provide their views in public consultation. This can help make a local authority’s intentions clear to the community. However, it is also important that a reasonable level of coverage is provided so that communities can assess the relative merits of options when providing feedback.

5.16
We have not provided examples of this in practice, as these matters are particularly subject to the relevant circumstances at the time.

Meetings and workshops with elected members

Issue

5.17
In the case of technical or complex decisions, many local authorities use informal meetings and workshops where elected members, staff, and specialist advisers can discuss the issues. Closing workshops to the public can cause concern for the local community, as it can appear that decisions are being taken behind closed doors.

Legislative requirements

5.18
The Act requires that meetings are held as necessary for the good government of the region or district (clause 19(1) of Schedule 7). Schedule 7 sets out, among other requirements, the general provisions for meetings, which include the conduct and procedures of meetings. The Act does not distinguish between formal and informal meetings, and says that a meeting must be called and conducted in accordance with the Act, Part 7 of the Local Government Official Information and Meetings Act 1987, and standing orders. Part 7 of the Local Government Official Information and Meetings Act 1987 concerns public notice of meetings and the right to attend meetings and request information. However, the definition of “meeting” in that Act provides that Part 7 does not apply to meetings at which no decisions or resolutions are made. This means that, for workshops, local authorities do not have to apply some of the formal requirements for meetings, provided that no resolutions or decisions are made.

5.19
Local authorities vary in their practice of whether workshops are open to the public, depending on the nature of the topic under discussion. Although some of the procedural aspects of the Local Government Official Information and Meetings Act 1987 (such as notice of meetings and publication of agendas) do not apply, members of the public have the right to request information discussed at workshops.

Discussion

5.20
Workshops can be a useful forum for advice from staff on complex matters and for frank discussion, but they should not be used as a substitute for the discussion and deliberation that ought to take place in a meeting that is open to the public. Issues and options discussed in a workshop should be presented to councillors in a subsequent report, to maintain transparency of information to the public. It is good practice to record the events of the workshop, such as any presentations and general discussion points.

5.21
Many local authorities find that workshops that incorporate site visits and visual material are useful preparation for decision-making.

5.22
Part 1 of the Local Government Official Information and Meetings Act 1987 sets out the requirements for managing confidential information. We discuss decision-making and consultation in a commercial context in paragraphs 5.35 and 5.36.

Examples

5.23
The Far North District Council has a quarterly omnibus workshop with elected members (both councillors and community board members). The council does not publicly notify the meetings. The workshops provide opportunities for:

• elected members to raise community issues, which are then discussed and are included in staff work programmes or management processes within the council if required;
• senior managers to raise issues that they intend to action in the next 3-6 months. The issues are discussed for likely consultation requirements and elected members’ roles; and
• staff to update elected members about changes in legislation and possible effects for the council, new internal processes, and management and governance issues.

5.24
After the workshop, the council publishes issues and projects for consultation on its website and in a public notice in the district’s newspapers, along with information about how the community can participate.

Giving effect to the results of formal consultation

Issue

5.25
Many in the community have a perception that the majority view expressed by submissions will determine the outcome of elected members’ decision-making.

Legislative requirement

5.26
Under the Act, community consultation is one of many inputs into decision-making. A local authority is required to receive the views presented with an open mind and give these due consideration in reaching its decision (section 82(1)(e)).

Discussion

5.27
If a local authority has consulted (in whatever form) to get community views, it must consider the information from the consultation process. However, it is not bound by the results of the consultation. This can be an issue, for instance, when a local authority receives petitions or large numbers of submissions and the elected members then make a decision at variance with the weight of submissions. The law requires a local authority to have considered the views of the community but not to be bound by them. A local authority is not under any obligation to give effect to the majority view represented by submissions. It is the quality of the submissions and not the quantity that is important.

5.28
To summarise, if the overwhelming majority of submissions support a particular option, that does not mean that the local authority is bound to adopt that option, provided that it considers all submissions fairly and with an open mind.

5.29
An issue that concerns many in the community is the common practice of treating a petition as one submission. A local authority needs to consider this issue when preparing policies on consultation and decide how it will treat information from petitions in a way that acknowledges the level of public interest in the issue.

Decision-making and consultation in a commercial context

Issue

5.30
Dealing with commercial sensitivity and managing issues such as the timing of decisions and the level of information provided to the community may need to take account of the attitudes of the community as well as the local authority’s relationships with commercial organisations.

Legislative requirements

5.31
One of the principles in the Act is that a local authority should carry out any commercial decisions in accordance with sound business practice. Another principle is that a local authority should conduct its business in an open, transparent, and democratically accountable manner. A local authority must also manage financial matters prudently, which may require taking external advice where necessary.

5.32
The Act acknowledges that it may be difficult to take account of community views and options in all circumstances. Section 79 provides that, in making judgements about the extent to which a local authority assesses options and takes community views into account, the local authority must have regard to the extent to which the nature of the decision or the circumstances in which it is taken allows it scope and opportunity to consider a range of options or the views and preferences of other persons.

5.33
Specific procedures apply to endowment land, in terms of both a local authority’s ability to dispose of such land and its use of sale proceeds. A local authority must include information about its intentions in its draft LTCCP and then adopt the LTCCP in accordance with the decision-making and consultation requirements in Part 6 of the Act. It is not then required to give public notice of each intended disposal. The relevant sections of the Act are sections 140 and 141.

5.34
The Local Government Official Information and Meetings Act 1987 provides a framework for protecting local authority information, including commercial information, where there is a good reason for not disclosing it that is not outweighed by the public interest.

Discussion

5.35
There can be a tension between taking commercial opportunities, and decision-making and consultation obligations. This can make it difficult for a local authority to take advantage of an opportunity where the benefits would reduce if the matter became public or there is not enough time for consultation. An example is the opportunity to purchase land by private tender, rather than competing in an open market and the matter being subject to consultation. There can also be a tension between decisions about contracts, particularly in contractual disputes, and the decision-making and consultation requirements. A local authority may find that the principles in the Act that it is required to follow are in conflict.²

5.36
When an unforeseen opportunity arises that requires an urgent decision, the decision should be consistent with the LTCCP and relevant policies or other strategies - for example, if the opportunity is to purchase land, the decision should be consistent with any strategy for acquiring property and the investment policy.³ Particularly for larger local authorities, it is unlikely that the LTCCP refers to specific properties. This means that, while such an LTCCP provides general information about a local authority’s intentions for selling land and using the proceeds, the LTCCP may not provide the public with enough information to comment on proposals for specific pieces of land. Each local authority must decide whether to consult on the sale or purchase of a particular piece of property.

Example

5.37
Our report to Parliament on Local Government: Results of the 2003-04 Audits sets out the issues of disposal of endowment land and provides two examples. The intention of section 141(1)(b) is to provide members of the public with an opportunity to comment on a proposed sale or exchange of endowment land and the intended use of the proceeds. This requires local authorities to provide enough information about their intentions to ensure meaningful consultation. The approach may differ between local authorities, depending on the size of each local authority’s endowment property portfolio.

Setting up a council-controlled organisation

Issue

5.38
Making decisions and consulting on setting up a council-controlled organisation (CCO) in accordance with legal requirements may not satisfy community desires for broader information on the “what, where, who, and why” of the decision.

5.39
We have dealt with a number of enquiries on the issue of setting up a CCO or council-controlled trading organisation.

Legislative requirements

5.40
A CCO is an entity or company in which one or more local authorities control 50% or more of the voting rights or appoint 50% or more of the trustees or managers or directors of the entity (section 6). A local authority is required to use the special consultative procedure when setting up, or acquiring shares in, a CCO (section 56). Part 5 of the Act contains the accountability framework for CCOs, and local authorities must include information about their CCOs in their annual plans, reports, and LTCCPs.

Discussion

5.41
The consultation principle of providing relevant information for public consultation applies to these consultations on commercial matters. We have observed that local authorities sometimes focus these consultations on complex legal and financial options, without providing the broader context of why the local authority wants to use a CCO for the proposed purpose.

Example

5.42
We have considered the case of a council that wished to set up shelf company CCOs under its holding company to take advantage of unspecified opportunities in the future.⁴ In that case, the council consulted the community on setting up the shelf companies, as required under section 56 of the Act. The council was to be advised of the intended activities of the CCOs once their purpose became known, but the community would not necessarily be consulted at that point. A councillor and some members of the public raised a concern about the role and timing of consultation, particularly whether the public could give views on forming CCOs when the activities to be carried out by the CCOs were not known. The council had legal advice that it had met the requirement in the Act to use the special consultative procedure when forming a CCO. We expected that the council would consider any concerns about unclear purpose for the CCOs when considering submissions.

Managing changes to the Long-Term Council Community Plan

Issue

5.43
There can be tensions between having an LTCCP and the need to retain flexibility in implementing the LTCCP. Both a local authority and a community invest considerable effort in reaching decisions on an LTCCP, and there is a reasonable expectation that the LTCCP will be implemented. However, the Act foresees that plans such as the LTCCP will require changes to adjust to circumstances and sets out the process for this.

5.44
We have observed that local authorities are struggling to identify and manage such changes to their LTCCP.

Legislative requirements

5.45
The Act requires local authorities to have an LTCCP at all times.⁵ The LTCCP provides a formal and public statement of the local authority’s intentions for matters covered in the plan. However, a resolution to adopt an LTCCP does not constitute a decision to act on any specific matter included within the plan (section 96(2)).

5.46
A local authority is able to choose to amend its LTCCP for any matter, at any time. However, there are certain decisions that can be pursued only if they are contained within the LTCCP. If they are not, an amendment is necessary. These specific decisions are those contained in sections 16, 97, 102(6), and 141 of the Act, namely:⁶

• a proposal by a regional council to carry out a significant new activity;
• a decision to significantly alter the level of service provision for any significant activity; transfer ownership or control of a strategic asset; construct, replace, or abandon a strategic asset; or a decision that will significantly affect the capacity or cost to the local authority, compared to that already reflected in the LTCCP;
• a proposal to amend any policy required by section 102; and
• a proposal to sell or exchange endowment land.

5.47
Section 97 focuses on the significance of the matter proposed by the local authority. If a matter is “significant”, it must be treated as an amendment (see the discussion in paragraphs 4.3 to 4.18 on using the policy on significance). Sections 102 and 141 do not refer to “significance” but to specific events that are essentially deemed to be significant by the Act.

Discussion

5.48
Experience to date indicates that each possible amendment has to be considered on its own merits. Local authorities need to balance the facts of the proposed change, the overall effects of the proposed change, the local authority’s policy on significance, and the Act’s requirements with sound judgement. As LTCCPs evolve, the sector will build a set of good practice for managing changes to the plans.

5.49
Each year, local authorities must adopt an annual plan.⁷ The purpose of the annual plan is primarily to support the adopted LTCCP and to outline the proposed budget for the financial year to which it relates. Local authorities must also set out in the annual plan any variations from the financial statements and funding impact statement included in the LTCCP.

5.50
The annual plan, containing the LTCCP variations, does not replace the LTCCP. Adopting the annual plan does not change or replace the existing LTCCP “numbers” or other forecast information. In other words, it does not amend the LTCCP. A local authority’s adoption of an annual plan has no direct effect on the LTCCP. The existing LTCCP remains in force without change.⁸

5.51
The annual plan sits alongside the LTCCP as a record of those annual variations rather than being integrated with the existing LTCCP.

5.52
There is a distinction between a local authority adopting variations from an existing LTCCP (essentially for annual rating purposes) and making a change of such magnitude (when compared to the existing direction outlined in the LTCCP) that the change becomes an amendment. An amendment requires an audit opinion to be included in the statement of proposal. This confirms that the statement of proposal provides a reasonable basis for consultation.

5.53
Consequently, a local authority’s primary annual planning requirement is to identify variations from existing plans (with the consequential effect on rating levels). If it wishes to change its previously expressed intent in a “significant” manner, it must pursue a separate amendment process.

5.54
An amendment is subject to a separate consultation process. The Act recognises that it may be efficient for this to be carried out in conjunction with an annual plan process, as long as it is clear to the community that they are being consulted on two counts - that is, one in setting the annual plan for the year, the other in effecting change to the 10-year plan.⁹

5.55
The main issue is whether a decision that affects an expressed intention in the existing LTCCP represents a significant change. This can be considered on a case-by-case basis only, and requires judgement based on:

• the factual background to the proposed decision;
• the effect of the proposed decision on the existing direction of the local authority as expressed in its current plans;¹⁰
• the local authority’s policy on significance and the Act’s definition of significance; and
• the requirements of the Act - including the specific requirements of sections 16, 97, 102(6), and 141.

5.56
It is the responsibility of the local authority to consider these matters, including, if necessary, taking legal advice to assess whether a decision constitutes an amendment. The cases where it is difficult to assess whether an issue is an amendment or a variation are likely to be proposed decisions on the margin of significance. Judgement is required in these cases. Where it is not certain how the matter should be treated, we expect a local authority to err on side of conservatism and to carry out the amendment process, which allows the issue to be subject to both the audit process and the special consultative procedure before the decision is adopted. A local authority needs to consider all the risks associated with not treating a matter as an amendment, including the political risk.

5.57
The statement of proposal should set out the reasons for, and implications of, the amendment.

5.58
In addition, there could be considerable change between one LTCCP and another three years later. These changes should be made in a way that is clear to the community.

Examples

5.59
The Society of Local Government Managers has prepared guidance for local authority staff on identifying LTCCP amendments. It is available on their website: www.solgm.co.nz.

5.60
Tauranga City Council amended its LTCCP because significant projects had been deferred. The LTCCP included projects that related to significant new infrastructure in a new urban area. These could proceed only after changes to the District Plan, and these changes were delayed. As a consequence, two large projects for stormwater and transport were also delayed, possibly for some time. This was considered an amendment because a significant delay in the provision of expected levels of service triggered the council’s significance policy.

5.61
In another example, a small rural council did not include a development contributions charge for roading in its LTCCP 2006-16 but proposed to include one as part of the 2007/08 Annual Plan. As there will be a new schedule for the development contributions policy within the suite of financial policies in the LTCCP, this is an amendment.

Use of summary documents

Issue

5.62
The summary of a statement of proposal is a critical part of the consultation required for the special consultative procedure. We have observed that it can be problematic for a local authority to determine what should be included in a summary document. It is important that this document provides “the right debate” on the main issues facing the local authority.

Legislative requirements

5.63
Section 89 of the Act sets out that a statement of proposal (the document used for consultation in the special consultative procedure) requires a summary and the requirements for such a summary. As the basis for general consultation, a summary must be a fair representation of the major matters in the statement of proposal being consulted on and be distributed as widely as reasonably practicable. The local authority may determine the form of the summary, and the summary should state where the statement of proposal can be viewed and how copies may be obtained.

Discussion

5.64
A summary is intended to provide communities with information on the major matters and choices required. Some statements of proposal - for example, for an LTCCP - are complex documents, and the summary will provide the primary information source for most members of the community.

5.65
A summary document must include all the major matters included in the statement of proposal. If the statement of proposal is to adopt an LTCCP, the summary should include information about the 10 years of the LTCCP. The information should be readable, clear, concise, and focused on the audience.

5.66
Many local authorities have commented that preparing summary documents is not an add-on at the end of the process and that they are best prepared in parallel with the statement of proposal itself.

Recording the decision

Issue

5.67
In many cases, records of decisions in local authority meetings or staff meetings do not provide enough information to the community about the decision, as discussed in paragraph 2.37.

Legislative requirements

5.68
The Act requires a local authority to inform people who have presented views to the local authority of the relevant decisions the local authority has made and their reasons (section 82(1)(f)). A local authority must keep minutes of its proceedings. When minutes are adopted in final form, they are evidence of those proceedings (clause 28 of Schedule 7). The Public Records Act 2005 requires all public offices and local authorities to create and maintain full and accurate records of its affairs (section 17(1)) and maintain in an accessible form all public records in its control (section 17(2)).

Discussion

5.69
In our view, it is good practice for a local authority to provide information about decisions and the reasons for them to the general community by means of newsletters, websites, and the publication of agendas and reports. In addition, those people or organisations that have made submissions during a formal consultation process such as the special consultative procedure must be provided with the decision and the reasons for it. This is often done by sending a letter to each submitter.

5.70
We have seen many instances of resolutions that provide little or no information about the matter being discussed. The resolutions a local authority adopts should be worded in such a way as to make the issue, the decision, and the reason for the decision clear, without a person necessarily having to refer to the full report for the information. If the local authority’s formal minutes of the meeting record only the voting results, this does not provide enough information to the community for its members to understand a decision and the reasons it was made.

5.71
On the other hand, if fully documented as suggested above, decisions for complex matters could result in long resolutions, which may not always be practical. Where resolutions refer to reports, such reports should be easily accessible to the public (unless there are good reasons for non-disclosure under the Local Government Official Information and Meetings Act 1987).

5.72
The adequate recording of decisions and the reasons a decision was made become even more important when the local authority makes a decision that goes against the advice provided in the report and recommendations from a local authority’s staff.

5.73
We have discussed how many decisions are taken under delegated authority or under an existing policy or strategic framework. This should be clear in the local authority’s records of its activities. For decisions that have been through a consultation process, a citizen should be able to identify in local authority documents:

• the issue;
• the options to achieve the objectives the local authority considered;
• the local authority’s consideration of community views and any consultation;
• the process for finding resolution;
• the resolution; and
• the action.

5.74
The documents should also identify how the decision supports progress towards community outcomes and the promotion of the four aspects of community wellbeing.¹¹

1: The Act requires that community outcomes be prepared at least once every six years - see section 91 for purposes of community outcomes and requirements.

2: Where any principles in the Act are in conflict, a local authority should resolve the conflict in an open, transparent, and democratically accountable manner (section 14(2)).

3: See paragraphs 4.28 to 4.30.

4: A “shelf company” is a company formed for future use that sits “on the shelf” until it is needed.

5: Section 93(1).

6: These sections are wide reaching and require substantial judgement - particularly about what is significant.

7: Section 95(1). Note that, by virtue of section 95(4), the LTCCP constitutes the annual plan in the first year to which it relates.

8: While the annual plan is adopted through the special consultative procedure, it is not subject to an audit report.

9: Section 83A (the result of amendment in 2004) clarifies that the two consultations (annual plan and any amendment) can be pursued concurrently. It should also be noted that “amendments” are not limited to being concurrent with an annual plan process. They can be carried out at any time in a year by a council.

10: This includes what section 84(2) refers to as “consequential amendments”.

11: Section 10(b).