Part 3: Specific Issues

Public Consultation and Decision-making in Local Government.

Introduction

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The first two parts of this report summarise the legal requirements concerning consultation in local government and relevant administrative law principles. This part highlights some issues of practical application for local authorities arising from the legal requirements, with particular focus on issues concerning the use of the special consultative procedure.

Procedural Obligation

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The courts have noted that the word “consultation” does not actually appear in section 716A. The section requires a local authority to follow a special consultative procedure in relation to a proposal. The public has the right to expect that the local authority will consider their submissions, but should not expect that their submissions will necessarily determine the outcome of the process.

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The position was summarised in the South Taranaki case (10) as follows:

The section is procedural and I uphold [the] submission that, provided the council genuinely considers the submissions, retains an open mind and has proper regard to them, then that is all that those members of the public who elect to participate under section 716A are entitled to expect.

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The rules against bias and predetermination must be considered to apply to the special consultative procedure as they do to any other consultative process. If it were otherwise, and all that was required was a strict compliance with the procedural steps set out in section 716A, then the process would be an “empty charade” (Urlich (19)).

Are There Any Mandatory Considerations?

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It is necessary to examine whether there are any mandatory considerations that a council must, as a matter of practice, take into account as part of the special consultative procedure. If the council fails to have regard to any mandatory considerations its decision may be flawed and subject to challenge.

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It was argued in the South Taranaki case (10) that the Act imposes a number of statutory considerations on a council that it is required to take into account as part of the special consultative procedure. Specifically, it was argued that sections 37K, 223C, 223D, 247C and 247D required the Council to have regard to a number of factors. On the particular facts of the case, it was found that such factors were not mandatory considerations. However, it is possible that the courts may, in certain circumstances, require local authorities to have regard to certain statutory considerations.

Annual Plan

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A proposal that is inconsistent with or differs from the annual plan is not necessarily invalid, because the annual plan is not binding on a council and can be departed from if necessary. Hammond J had this to say in the New Zealand Public Service Association case (16):

With respect, that general line of argument is based on a misconception that an annual plan is a distinct and heavy-handed constraint on a local authority. That is, that it somehow binds a local authority’s hands as to what it can do in the future. Such a plan is certainly an integral part of enlarged participatory democracy at a local government level. But it would be utterly surprising if Parliament had intended such to be a formal blue-print which would attract heavy consequences if departed from. That that is not so is evidenced by section 223D(4) [sic – section 223D(5)] which expressly contemplates that departures from a plan may be made, but of course requires a subsequent formal explanation therefore.

Form of Proposal

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According to section 716A, a “proposal” is either an “intention to act” or a “draft plan or policy”. These terms are consistent with all of the statutory provisions that require the use of the special consultative procedure.

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Many of the statutory provisions requiring the special consultative procedure to be used delimit either the form of the particular proposal or the manner in which the proposal is formulated.11 Where Parliament intends a local authority to have regard to particular considerations in formulating a proposal or policy, it has expressly stated this in the statute concerned.

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In some situations it may be appropriate to include the whole of the resolution in question, or to incorporate by reference the particular plan or policy that is to be the subject of the consultation. However, where the special consultative procedure involves a specific proposal – and the relevant legislation does not specify any criteria for the formulation of the proposal – then, as noted above, the only limit on the formulation of the proposal is one of reasonableness.

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It is for the council to determine the proposal that is to be the subject of consultation. A decision to consult on a particular proposal is not invalid simply because it is worded narrowly, unless it is so narrow that no reasonable council would have adopted it (Urlich(19) and South Taranaki(10)).

Who May Make Submissions?

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Section 716A allows any person to make any submissions on the proposal. This right is not limited to ratepayers or residents of the district.

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Although submissions must be relevant to the proposal, this does not prevent submissions being made on any option as an alternative to that contained in the proposal.

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Section 716A(l)(d) provides that any person who has made written submissions is to be given a “reasonable opportunity to be heard by the body to which the submissions are made”. These words clearly envisage that members of the public have the right to speak to their submissions.

To Whom are Submissions Made?

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Section 716A(l)(g) provides that the final decision in relation to any proposal is to be made at a meeting of the local authority. However, section 716A(l)(c) allows a local authority, in its public notice, to state whether the submissions are to be made to the local authority, a community board, or a committee of the local authority. The combined effect of sections 716A(l)(c) and (d) is that submissions may be made to, and heard by, a body other than that which is the ultimate decision maker.

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Where submissions are made to – and heard by – a community board or committee of the local authority, the community board or committee must inform the council of the evidence and submissions, in a way that is free from bias, so as to allow the council to make an informed decision. This information may be in the form of a summary, provided it is an accurate representation of the submissions received.

Effect of Submissions

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There may be a perception among the public that they have a right to dictate the outcome of a special consultative procedure and that the majority view expressed by submissions is determinative. However, the courts have made it clear that the consultation process under section 716A is not a referendum. A council is not under any obligation to give effect to the majority view represented by submissions (Urlich (19)).

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It is the quality of the submissions and not the quantity that is important. Giles J, in South Taranaki(10), commented as follows:

I pause to observe that mere weight in numbers is not and cannot be determinative. The reality of life is that notwithstanding public clamour and demands for democracy and transparency at local government level, section 716A consultation has an understandable tendency to attract submissions from interest groups and those electors holding a passionate view on a particular issue. The silent majority often have no desire to participate, either out of disinterest in or satisfaction with the proposal subject to consultation. As Williams J stresses in Auckland City Council v Auckland Electric Power Board (supra) sheer weight of numbers alone does not justify or require a Council to yield simply because of the numbers. The process is about securing public input and it is the substance of that input upon which the Council must reflect with the necessary open mind contemplated by section 716A.

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The fact that the overwhelming majority of submissions support a particular option does not mean that the council is bound to adopt that option, provided that a council considers all submissions fairly and with an open mind.

Role of Council Officers

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As with reports of committees or community boards to a council, any report that is prepared that purports to summarise the views of the public expressed through the consultation process must be a fair and accurate representation. Council officers have a role to present their professional opinion with regard to a proposal, but they must be careful to represent fairly the views that they gather as part of any public consultation process.

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In exercising that role, council officers must act fairly, lawfully and reasonably or their actions could be challenged in judicial review proceedings. Where the matter could be contentious, they might consider the use of independent facilitators or reviewers for the consultation process.

Alterations to Proposals

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After consultation has taken place on a particular proposal and changes have been made, there may be an issue as to whether the amended proposal is so different to the original proposal that it needs to be re-notified. So, when is further or new consultation needed on a revised proposal?

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Section 716A does not expressly provide for the possibility of the proposal subject to consultation being modified or altered at the time of confirmation (although it is implicit in the consultation requirement that changes could result), and case law provides little assistance on this matter.

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Whether modification or alteration to a proposal at the time of confirmation of the proposal is reasonable may depend on the nature of the particular proposal that is subject to the special consultative procedure:

  • Accountability – Where the special consultative procedure involves the adoption of general policy (e.g. the annual plan), changes are probably permissible and likely. Changes allow public participation in the formulation of policy. It is also significant that long-term policy documents such as the annual plan are, even once adopted, not binding on councils.
  • Specific Proposal – A specific proposal may be more difficult to alter. Generally, the proposal is looking for a yes/no answer, and any alteration to the proposal is more likely to significantly alter the outcome of the special consultative procedure.
  • Legislative Process – Special consultative procedures used for legislative purposes are similar to special order procedures. It appears that the principles relating to the alteration of special orders would be applicable, and that only minor technical alterations would be permissible.

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Although there is no case law on when a council may alter a proposal rather than recommence the procedure, the following guidelines may be of assistance:

  • Alterations should result only from submissions made.
  • If the alteration changes the proposal to such an extent that the altered proposal would have attracted additional or different submissions to those actually received, the council should consider not confirming the proposal. Section 716A requires open consultation, which cannot occur if the proposal that is confirmed has not been adequately notified to the public.

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Whether an alteration to a proposal is permissible may ultimately be decided on whether, in all the circumstances of the particular situation, it is reasonable.

Failure to Use the Procedure

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A failure to use the special consultative procedure in circumstances in which it was expressly required by statute is likely to result in the courts invalidating the decision. In situations where Parliament has expressly shown its intention that decisions are to be made or plans or policies adopted only after compliance with section 716A, any failure to follow the procedure will place the outcome at serious risk of challenge.

Irregularities in Complying with the Procedural Requirements

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The Act makes no provision for a failure to comply with the procedural requirements of section 716A, and there has been little judicial commentary on the issue. Traditionally, the approach of the courts to procedural failure has been to invalidate the outcome of the procedure.

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Some guidance may be taken from the approach of the courts to procedural irregularities in the special order process. Courts have invalidated special orders because:

  • the resolution confirming the special order was confirmed a day too early;
  • the public notice failed to state the time and place at which the confirming meeting was to be held;
  • the second public notice was not given; and
  • an ordinary resolution was used instead of a special order.

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However, the courts have recently appeared willing to take a more liberal approach where the breach is technical in nature. Tipping J stated in the Westland County Council case (24):

No doubt section 5 [of the Judicature Amendment Act 1972] or the general law can be used to excuse purely formal errors or technical irregularities, but hardly a failure to observe in substance an important statutory preliminary.12

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A similar approach has been applied to procedural irregularities in other consultative processes. In the Yovich case (20), the Council’s public notice of its intention to make rates incorrectly stated the time of the meeting at which the rates would be made. It was held, in the circumstances of that case, that any deficiencies in respect of the notice:

. . . are, in the absence of any suggestion of substantial wrong or miscarriage of justice, matters to be dealt with under section 5 of the Judicature Amendment Act, and to the extent necessary in so far as the deficiencies are of that kind the decision should be validated.

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Whether the failure to perform a procedural requirement invalidates the outcome of a special consultative procedure is ultimately likely to be determined by reference to whether the failure has somehow prejudiced the rights of the public to be involved in the consultative process. Given that each procedural step in section 716A appears designed to ensure public participation in the decision-making process, anything other than the most minor breach may invalidate the process.

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If a decision is invalidated by reason of a procedural irregularity, section 719 of the Act provides that the decision may be validated by the Governor- General, by Order in Council. This provision only applies where the decision is not made, or cannot be made, at the time required under the Act, or is otherwise irregularly made “in matter of form”.

Timing – Special Consultative Procedure

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One of the most significant elements in compliance with the procedural requirements of the special consultative procedure is timing, particularly as regards the giving of public notice and the time available for the making of submissions and representations. Section 716A requires that the period of submissions is to be not less than one month and (unless the authority directs) not longer than three months. In this context “month” refers to a calendar month. The time for receiving submissions must therefore remain open for at least one clear calendar month.

Timing – Special Orders

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Section 716B does not specify any date by which representations must be received by a council. Indeed, section 716B(8) suggests that councils must receive representations until the day before the date of the confirming resolution. This will clearly affect the ability of a council to fairly and adequately consider all representations, particularly if a large number of them are received at the last moment. If that interpretation is correct, it appears to be one area in which legislative amendment is required.

11: For example, section 33 of the Resource Management Act 1991 and section 180B of the Rating Powers Act 1988.

12: Section 5 of the Judicature Amendment Act 1972 allows the Court to refuse relief in judicial review proceedings “where the sole ground of relief established is a defect in form or technical irregularity”, provided that the Court finds that no substantial wrong or miscarriage of justice has occurred.

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