Relationship between the Local Government Act and the RMA
The Local Government Act 2002 (LGA) represented the first major revision of local government law for 28 years. This review was also part of a wider legislative reform, which included the reform of earlier legislation to create the Local Electoral Act 2001, and the Local Government (Rating) Act 2002 (which replaced the Rating Powers Act 1988).
The reforms encourage local authorities to focus on promoting the social, economic, environmental and cultural well-being of their communities, consistent with the principles of sustainable development. Local authorities (LAs) in consultation with their communities now have greater discretion in the choices they make about what services will be provided, and the manner in which these services will be undertaken. The very prescriptive provisions of the previous Act have been replaced by a general form of empowerment.
Further advice on the nature of these changes and their implications are contained in a series of 'LG Know How' guides produced in 2003. These guides can be purchased via the Local Government New Zealand website www.lgnz.co.nz/.
What is the relationship between the sustainable development approach taken in the LGA and the sustainable management approach in the RMA?
The sustainable development approach is described in section 14(h) of the LGA as:
'In performing its role, a local authority must act in accordance with the following principles:
...
(h) in taking a sustainable development approach, a local authority shall take into account-
(i) the social, economic, and cultural well-being of people and communities; and
(ii) the need to maintain and enhance the quality of the environment;
and
(iii)the reasonably foreseeable needs of future generations.'
This clause encourages local authorities to play a broad role in promoting the social, economic, environmental and cultural well-being of their communities. This principle allows a balanced approach to be undertaken on all decisions made by LAs.
The sustainable development principle is one of 11 principles governing the way local authorities must provide for the present and future needs of their communities (s14).
The RMA however has a single purpose, which is to ensure that natural and physical resources are sustainably managed for present and future generations. This sustainable management principle must underpin all decisions made under the RMA, involving the development and assessment of national instruments, plans and resource consents.
In practice, this means that decision makers are required to determine applications for resource consent or plan changes in the same manner as they have prior to the LGA. Proposals in the Long Term Council Community Plan (LTCCP) or identified in the Community Outcomes process, may have environmental implications which conflict with an RMA plan. This does not mean that resource management decisions must comply with the LTCCP. Decisions must still be made in accordance with the purpose and principles of the RMA and the policies of the relevant resource management plan.
In other words, the more specific legislative requirements override the more general provisions of the LGA. This relationship issue is discussed in more detail below.
What is the relationship between community outcomes and long term council community plans (LTCCP) under the LGA, and Resource Management Act (RMA) plans and national instruments under the RMA?
The LGA requires LAs to consult with their local communities and Crown Agencies to determine what public goods and services the community wants provided. This process leads to the development of 'community outcomes'. These outcomes are then translated into a plan of action referred to as the LTCCP.
This is a ten year strategic planning document, and covers all LA functions from financial planning and economic development initiatives, to social service provisions such as libraries, housing and community facilities. LTCCPs must be reviewed triennially.
The RMA establishes a hierarchy of policy documents from national instruments to regional policy statements, and regional and district plans. This 'hierarchy' and requirement to ensure consistency between plans, is to promote sustainable management and ensure integrated management of natural and physical resources at a national, regional and local level.
The LTCCP does not override the provisions of RMA plans (or other statutory documents), nor is there a legal requirement that new plans and strategies that are adopted, while a LTCCP is in force, must conform to it. However, because the LTCCP both records the outcomes identified by the community and identifies how the local authority will contribute to these, it is expected that local authorities will use this process to inform other plans and strategies to the LTCCP.
Alignment of RMA plans with LTCCPs may eventually be required to enable RMA decisions to contribute to the achievement of the identified community outcomes.
This diagram shows how community outcomes and the LTCCP relate to and impact on other council strategies and policy documents, which include Regional Policy Statements and Regional and District Plans.
What regard must be given to the decision-making and consultation principles under the LGA when following specified processes in the RMA?
The decision making and consultation principles (sections 76-82) of the LGA are designed to apply only where no requirements are specified in other relevant local government legislation. For example, a decision about notifying a resource consent application would be made under the processes of the Resource Management Act, not under the LGA.
A general principle of law is that specific provisions contained in one Act override the general provisions contained in another Act. The RMA contains specific requirements pertaining to resource consents and decision making, whereas the LGA has general consultative principles that must be applied when consulting with the local community. As there are no specific processes for carrying out consultation under the RMA about how the community should be consulted when preparing a policy statement or plan, LAs will be required to apply the consultative provisions contained in the LGA.
What processes are available to address conflicts between policies in the different plans and strategies that a Council produces, and also for conflicts between decisions made under the various plans and strategies?
Section 80 of the Local Government Act states that if a decision of a local authority will be significantly inconsistent with, or is anticipated to have consequences that will be significantly inconsistent with any adopted policy or statutory plan required by the LGA or any other enactment (such as the RMA), the LA must, when making the decision, clearly identify:
- the inconsistency
- the reasons for the inconsistency: and
- whether the local authority intends to amend the policy or plan as a result of the decision.
This provision does not give authority to disregard or override a legally binding instrument such as a policy statement or plan under the RMA, or any other approval given under another Act.
What impact does the Local Government (Rating) Act 2002 have on the availability of landowner names and addresses for RMA process purposes?
The Privacy Commissioner has advised that rating information can be used by LAs for resource management purposes, for example identification of affected parties. This is on the basis that the public interest in ensuring efficient administration overrides the private interest in protecting that information.
Local authorities generally cannot release this information to third parties for other purposes.
What is the relationship between the financial contribution provisions in the RMA and the development contribution provisions in the LGA?
A 'Best Practice Guide to Development Contributions' has been produced by Local Government New Zealand. This publication provides useful guidance on the relationship between financial and development contributions ((LG Know How, section 1.5 pg 12).
Development contributions and financial contributions have a similar meaning in both Acts. Contributions can be taken in the form of money, land or a combination of both.
Financial contributions (FCs) help promote the sustainable management of natural and physical resources in terms of section 5 of the RMA. This narrow focus has restricted local authorities’ ability to promote other social, economic and cultural policy objectives.
In particular, FCs tend to focus on the direct marginal impact of the effects of particular developments without considering the wider cumulative impact of multiple developments on the infrastructure and community facilities of a district. This is the main reason for allowing local authorities to take development contributions under the LGA. It is anticipated that this will allow better integration with the rest of the financial management provisions for local authorities.
Local authorities can still decide to continue with the present approach to taking financial contributions in District and Regional Plans. The LGA however requires that each local authority has a policy on development contributions or financial contributions. Councils may choose to use a combination of both financial and development contributions.
Where a LA decides to use a combination of financial and development contributions care must be taken to ensure that contributions are not taken twice for the same type of development. This is referred to as 'double dipping'.
Do RMA plans need to state if financial/ development contributions are going to be taken solely under the LGA?
There is no provision in either the RMA or LGA that RMA plans state that development contributions will be taken in accordance with the LGA.
Section 102 of the LGA 2002 requires local authorities to have a policy on financial or development contributions. This must state (among other things) how the capital expenditure from the increased demand for community facilities resulting from growth is to be funded by DCs, FCs, or other sources of funding. This policy must be made available for public inspection.
If development contributions are required, the LA must keep available for public inspection the full methodology that demonstrates how the calculations for those contributions were made.
If financial contributions are required, the local authority 'must keep available for public inspection the provisions of the district plan or regional plan prepared under the Resource Management Act 1991 that relate to financial contributions.'
This policy must be made available at the principal office of the local authority or such other place where members of the public will have reasonable access to the methodology, provisions or plan.
When should development contributions or financial contributions be used?
FC provisions in RMA plans are required to avoid, remedy or mitigate any potential adverse environmental effects generated by activities. They are also taken to provide for community facilities, such as reserves, and to provide for the increased demand placed on infrastructure. The taking of FCs for infrastructure does not always rest comfortably with the RMA as it is often based on fiscal rather than environmental considerations.
Attempts to fund 'growth' infrastructure have often floundered under the RMA due to:
- high compliance costs in negotiation, mediation and litigation;
- considerable delay, and therefore poor responsiveness to changes in the social and economic environment;
- difficulty in establishing clear and quantifiable links between the environmental effects of a development and the amount of the financial contribution;
- decisions challenged and overturned by the Environment Court;
- piecemeal and slow development leading to fluctuating revenue streams; and
- as a consequence of the above, insufficient certainty for robust financial planning.
DCs developed through the LTCCP process can only be challenged in the High Court on points of law and judicial review on process. Provisions under the RMA are subject to appeal to the Environment Court on merit as well as to the High Court on points of law and process.
DCs give LAs the scope to more effectively address the funding and provision of infrastructure, and for district plans and regional plans to deal with mitigating the environmental effects of development.
Where a DC has not been paid, a LA can:
- prevent the commencement of a resource consent;
- withhold a section 224(c) certificate under the RMA in respect of subdivision;
- withhold a code compliance certificate under the Building Act 1991; or
- prevent a service connection
Where a developer refuses to pay FCs associated with permitted activities, the only option available to LAs is to deal with it in a similar manner to any other debtor. Where it relates to a condition of a resource consent, a LA can also take enforcement action under the RMA for non-compliance with a condition of a resource consent.
Whilst the RMA process is potentially more litigious, expensive and time consuming, it enables local authorities to determine that FC's have effect once the provisions are publicly notified (sections 19 and 108(10)). LAs can also choose to delay when these provisions come into effect (s20). In this case, LAs will need to take a cautious approach to spending these contributions until the provisions have been confirmed, as the provisions may be subject to challenge and subsequent change.
A number of councils are likely to continue to use the financial contribution provisions contained in their district and regional plans for policy and administrative reasons. However, where a city/district is experiencing high growth, or the existing policy/contributions are seen as inadequate, councils may decide to use the more streamlined process contained in the LGA with respect to the provision for infrastructure. In this case, LAs may need to initiate a plan change to remove any financial contribution provisions that are being duplicated under the RMA.
What links are there between the monitoring requirements in the LGA and those in the RMA, including the recent changes to section 35 of the RMA?
Local authorities are obliged under the LGA to report on the community's progress in achieving the community outcomes not less than once every three years. This compares with the five-yearly requirement in the RMA. The monitoring that is undertaken to satisfy the requirements of the RMA will be an important part of the environmental monitoring work that is required for the LTCCP.
An integrated approach to environmental monitoring will be required to ensure the best use of the information gathered by local authorities. Through an integrated approach to monitoring, information systems can be set up or amended so the right information is collected at the right time. An integrated system will also help to ensure that information is provided to meet a number of different legislative requirements.
More detailed information on this topic can be found in the monitoring and reporting one-stop-shop' section. This resource provides best practice tips and examples of integrated monitoring strategies developed by a number of local authorities. This best practice guidance is a starting point for those local authorities who are preparing environmental monitoring strategies.
What are the differences between the decision making processes in the RMA and the LGA?
The RMA has a codified submissions and hearings process, where the Act sets out the process and timeframes to be following, the manner in which hearings must be conducted, and the matters that must be taken into account in making decisions. This quasi judicial process allows for RMA decisions to be challenged on policy grounds to the Environment Court (EC). Any submitter or further submitter can also be a 'party to proceedings' in the EC.
RMA decisions can also be challenged in the High Court on points of law and process. For example, decisions relating to whether resource consent applications should, or shouldn't be notified.
The LGA does not codify the way consultation and decision making is undertaken by LAs. Each LA must however ensure that its decision making processes 'promote compliance' with sections 76-82. The effect of this is that a LA’s decision-making processes must:
The LGA contains consultation principles that should be applied when consulting within the public. This is not a mandatory requirement as it is under the RMA.
Members of the public can only challenge LGA decisions in the High Court on the basis that the correct process has not been followed or on a point of law. Legal challenges cannot be made on the merits of the decision. This is the main point of difference between RMA and LGA decisions.
Other sources of information include:
Local Government KNOWHOW guides to the Local Government Act: produced by SOLGM, LGNZ and the Department of Internal Affairs
Acknowledgments
This FAQ was prepared by John McSweeney and Sandra Proctor from the Ministry for the Environment. The FAQ was peer reviewed by Fiona Illingsworth from the Department of Internal Affairs and Jane Johnston from Local Government New Zealand.
