Public consultation processes used by the Dunedin City Council in providing for services, assets and resources to the community have in many cases been valiant and hugely positive; however, consultation on the stadium project has been found wanting by more than the average few…
Earlier at What if? there were some distinctions made between what consultation means under the Resource Management Act (RMA) and the Local Government Act (LGA), using public reference material available on the web. Here are some more threads, from the Ministry for Environment, Quality Planning, Department of Internal Affairs (via Civil Defence), and Office of the Auditor-General, Audit New Zealand.
In regard to resource management, “there is some agreement amongst advocates, council planners and community representatives that the primary purpose of consultation is to ascertain community views and opinions in order to achieve a better project”.
These passages may be found in the Ministry for Environment’s Striking a Balance: A Practice Guide on Consultation and Communication for Project Advocates.
While the guideline is dated and might have been superseded in several ways, the principles it describes are useful:
“There can be considerable variation in interpretation amongst advocates and communities as to the purpose of consultation. Communities may expect that the purpose of consultation is to achieve consensus. In actual fact, the advocate’s operational requirements may overshadow the importance of responding to community views and concerns.”
Properly, the practice of consultation has something of an escape clause to it; as the Court of Appeal indicates, “consultation does not mean consensus or acceptance, nor does it equate to negotiation, although it may result in an agreement to negotiate”.
The guideline continues: “The level of community understanding of the underlying rationale for a proposed development, be it at the national, regional and/or district level, is an important consideration in developing an appropriate consultation process. Communities should be provided with the information necessary to understand the rationale for projects proposed for their neighbourhoods.
“Communities may want to debate the merits of the rationale and it may or may not be accepted, but at the very least the rationale should be explained.”
On consultation at the Quality Planning website, in abstract it says:
“Consultation is a process that involves listening as well as talking and providing information. It is a requirement under the Resource Management Act 1991 (RMA). Even when not mandatory, consultation is good practice as a means of identifying/clarifying issues and potentially resolving them early in the process.
“Consultation takes time. It can be hard work and cause costly delays. It requires commitment to communicate effectively with a large community of individuals and groups with different values and concerns. But if done well, consultation will improve the quality of the plan, lead to more community buy-in to the plan and may mean fewer disputes and references in the long term.
“Make sure consultation is an ongoing process, not a one-off event or series of disjointed encounters.”
The Department of Internal Affairs notes at its website that the Local Government Act 1974 (LGA) was the main piece of legislation defining the power and responsibility of local authorities.
“The decision to review the Act, and other local government legislation, was made in March 2000. The new Local Government Bill was introduced to Parliament on 18 December 2001, and received royal assent on 24 December 2002.”
Submissions on the review’s consultation document were received from a variety of individuals and organisations, and provide a picture of the range of public and community views of the proposals contained in the document.
“Issues that drew the most comment included:
* the proposed new purpose of local government – to promote the social, economic, environmental and cultural well-being of communities.
* the proposal to give councils a “power of general competence”, allowing them to choose the activities they undertake and how they should undertake them (subject to a public consultation process).
* the relationship between Maori, the Treaty and local government.
This on local government consultation and decision-making from the Office of the Auditor-General, Audit New Zealand (OAG):
“After the Local Government Act was passed, local government sector organisations and the Department of Internal Affairs produced a series of high-level guidance material. A need for more specific advice has emerged as local authorities have gained more experience in implementing the Act.
“Although there has been no significant change in case law for some years, good practice is evolving and legislation changes have reinforced the public’s expectation of greater levels of consultation. We have dealt with a number of complex ratepayer enquiries about local authority decision-making obligations and consider that we now have enough experience to distil and reflect good practice emerging from the sector.”
OAG brought together a working group of local government staff and advisers to provide sector input into identifying the main issues and examples of good practice. It published a report on 12 September 2007 that reflects what local government practitioners consider to be good practice in decision-making and consultation.
“In practice, the responsibility for decision-making and consultation lies with the leaders and senior managers of local government. We expect our guidance to be useful for the sector alongside other material such as that produced by the Society of Local Government Managers and Local Government New Zealand.”
“The Local Government Act 2002 sets out principles and obligations for local authorities to use in decision-making and consultation. Decision-making and consultation are important activities by which local government fulfils its purpose of enabling democratic decision-making and promoting the general well-being of current and future generations. The Local Government Act 2002 has also reinforced the public’s expectation of greater levels of participation in decision-making and consultation.
“So far, the courts have had few opportunities to provide judicial guidance about how to interpret these principles. However, good practice is evolving.
“This guide is the combined view of the OAG and a working party within the sector convened to advise the Office. OAG discusses the principles-based approach in the Local Government Act 2002. The guide also provides examples of local authority practice in areas that the working party and [the Controller and Auditor-General K B Brady] identified as challenges to implement. It does not attempt to define legislative compliance – rather, it is a combined view and discussion on principles and current practice.
In the guideline, OAG has this to say on decision-making and consultation requirements (Part 4):
“Using the policy on significance:
In our experience, local authorities find it difficult to determine whether decisions or proposals are significant. Although practice is evolving, we continue to receive requests to look at how local authorities have made significant decisions and how local authorities have decided whether a matter is significant. Local authorities need procedures for managing significant proposals and decisions.
Part of the decision-making framework of the LGA is a “significance” threshold – the decision-making requirements in the Act are generally more onerous for “significant” decisions. This is reflected in the proportionality principle in section 79 – the extent to which a local authority must consider options and community views about a decision should be in proportion to the “significance” of the decision.
“There are some cases where a proposal or a decision that a local authority recognises as “significant”, either because of its own policy or because the Act deems it so, triggers specific statutory decision-making processes. For example: A regional council can start a “significant new activity” only if the activity is included in its LTCCP (section 16).
“Decision-making and consultation requirements:
• A local authority must use the special consultative procedure when proposing to change the mode of delivery of a “significant activity” (section 88).
• A local authority cannot decide to alter “significantly” the level of service for a “significant activity”, or transfer ownership or control of a strategic asset, unless the decision is explicitly provided for in the LTCCP (section 97).
“The Act contains several references to “significant” and “significance”, and defines both of those terms (section 5). The definition of “significance” is the crucial one. It requires local authorities to consider the degree of importance of the issue, proposal, decision, or matter in terms of its likely effect on, and likely consequences for:
• the current and future social, economic, environmental, and cultural well-being of the district or region;
• any persons who are likely to be particularly affected by, or interested in, the issue, proposal, decision, or matter; and
• the capacity of the local authority to perform its role, and the financial and other costs of doing so.
“The Act requires a local authority to have a policy on significance that sets out the local authority’s approach to determining whether a decision or proposal is significant and any thresholds, criteria, or procedures used to assess this. A policy on significance must also list a local authority’s strategic assets. This list should comprise assets considered by the local authority to be strategic, as well as assets that are strategic under the Act’s definition of that term (for example, shares held in port or energy companies). A policy on significance must be adopted or amended using the special consultative procedure, and a summary must be included in the LTCCP.”
What if? says: To explore the context of these passages we recommend you use the links provided.