Delegations and transfers
Abstract
Delegating functions to council officers or Hearings Commissioners and transferring functions, powers or duties to another public authority, can improve the efficiency of planning processes, such as the processing of resource consents. This guidance note focuses on monitoring the exercise of delegations and transfers.
Monitoring delegations and transfers is an area of emerging resource management practice. Sections 33 and 34 of the Resource Management Act 1991 provide for the transfer of powers and delegation of functions (respectively). Section 35(2)(c) requires every local authority to monitor the exercise of any functions, powers or duties delegated or transferred by it.
Guidance Note
Delegations
Local authority officers, acting under delegated authority (section 34A), made 87% of decisions on resource consents in 2005–2006 (reported in the Ministry for the Environment, Two-Yearly Survey of Local Authorities, March 2007). It is common for council officers to be delegated the responsibility (by councillors) for decision-making on ‘less significant’ resource consents. Points to note include:
- delegating functions to council officers can improve the efficiency, timeliness, and consistency of processing resource consent applications and delegating functions to Hearings Commissioners with expertise in particular areas, can contribute to efficient planning processes
- councils should bear in mind the relative risks involved in delegating and transferring certain decision-making functions. Monitoring any delegations and transfers can help assist in this
- monitoring delegations can ensure that the ability and experience of officers and hearings commissioners is appropriate for the level of decision-making required
- all officers and hearings commissioners should be aware of what functions have been delegated and to whom (a written register can be useful)
- it is important for council officers and hearings commissioners to note any emerging cumulative effects and report these to council
- reporting back regularly to council committees (or in some cases the full council) is important. This is usually done every month, or as often as is necessary
- refer also to the Contracting Out Resource Consent Processing Guidance Note, which discusses issues relating to outsourcing resource consent processing.
Transfers
Transfers of functions, powers, or duties are less common than delegations but do occur (note the examples provided). Section 33 transfers under the Resource Management Act have had limited use, partly because of the question of who pays and because some practitioners have been unclear about the requirements of the Act. This section of the Act was recently amended to make it clear that the responsibility for the transfer remains with local authorities.
Councils remain responsible
- Councils remain responsible for the monitoring of any delegations and transfers of power.
- Councils also retain responsibility for all functions specified under relevant legislation, such as the Resource Management Act and Local Government Act 2002.
- Because councils are politically accountable for any delegations and transfers, and for monitoring these, they also need to report back on the monitoring of delegations and transfers.
Best practice examples
The following example illustrates best practice in particular aspects of plan preparation, as described in the guidance note.
Delegations and Transfers Monitoring: Northland Regional and District Councils
Northland Regional Council and Northland District Councils (Whangarei, Kaipara and Far North) have transferred a range of Resource Management Act-related functions, powers and duties between themselves.
The transfers relate to:
- The processing, administration and enforcement of resource consents (for land use consents, the sale of liquor, structures, discharges).
- The administration and enforcement of unauthorised noise originating from the coastal marine area.
- The control of contaminant discharges on the foreshore of the coastal marine area (from live and dead stock, abandoned vehicles, rubbish and fires).
The transfers are aimed at increasing efficiencies in the processing, administration, monitoring and enforcement of clearly defined functions, powers and duties. A monitoring and reporting regime has been developed to check implementation.
RMA provisions
Section 35(2)(c) states that every local authority shall monitor the exercise of any functions, powers, or duties delegated or transferred by it.
Section 35(3) requires every local authority to keep reasonably available at it principal office, information which is relevant to the administration of policy statements and plans, the monitoring of resource consents, and current issues relating to the environment in the area, to enable the public:
- to be better informed of the duties, functions, and powers of the local authority
- to participate more effectively under the Act.
Section 33 deals with transfer of powers including what powers can be transferred, to whom and under what circumstances.
- 33(1) ‘A local authority may transfer any one or more of its functions, powers, or duties under this Act, except this power of transfer, to another public authority in accordance with this section.’
- 33(2) ‘For the purposes of this section, ‘public authority’ includes any local authority, iwi authority, board of a foreshore and seabed reserve, Government department, statutory authority, and joint committee set up for the purposes of the section 80.’
Section 34 deals with delegation of functions by local government including what functions, powers and duties can be delegated to committees, community boards, hearing commissioners and officers.
Note to readers: The Resource Management Act was amended in 2003. The ‘Delegations That Can be Held by Council Staff’ table indicates which provisions of the Resource Management Act have changed as a result of the 2003 amendment to the Resource Management Act, and readers are asked to check the implications of the changes for their delegations.
Case law
No major case law exists on monitoring delegations and transfers. However, the leading case on outsourcing under the Resource Management Act is Just One Life Ltd v Queenstown Lakes DC Court of Appeal, CA72/03, May 2004. However, this decision considered s34 before it was amended by the Resource Management Amendment Act 2003. Given the changes made to the delegation provisions, this case has limited precedent value for interpreting s34A but the Court did make an obiter dictum (casual comment) that a delegation to a company would not be permitted under s34A (given that a company cannot be an employee or a hearings commissioner). There is no other case law as yet in respect of outsourcing under s34A.
Related guidance notes
The following guidance notes are related:
Relevant publications
RMA Survey of Local Authorities
Published by the Ministry for the Environment
Every two years, the Ministry for the Environment carries out a survey of resource management processes in local authorities.
Current challenges in practice
- Defining the scope of delegations and transfers
It is important to fully define and understand the extent of the delegation or transfer so that an effective monitoring regime can be initiated. For example, should environmental outcomes in relation to the function delegated or transferred be monitored by the transferrer or the transferee? - Protection from legal liability
Local authorities are still legally liable for any functions, powers, or duties transferred or delegated. Monitoring of delegations or transfers is important to ensure protection from legal liability. - Hazardous Substances and New Organisms
In the future the HSNO delegations may be challenging.
