Explanation of proposed delegated powers for Community Boards

August 8th, 2011

One of the key issues that has surfaced in the debate on the proposed amalgamation of Nelson and Tasman councils is that part of the Local Government Commission's proposal that grants extra delegations to Motueka and Golden Bay community boards.

Following the release of the draft proposals, TDC has said it will in any case give the same delegations to community boards even if amalgamation does not happen. The idea of these delegations is to empower boards to make certain decisions about issues relevant to their own communities, without needing to get Council to do it for them.

Since these events surfaced, many questions have been asked about exactly what powers could be delegated and to what extent they could be funded by budgets ove rwhich community boards could have control. The matter was discussed at last week's public meeting when Philip Woollaston, whose experience as a mayor of the former Golden Bay County Council, the mayor of Nelson and the Minister of Local Government gave him the ability to present the facts of relevant law.

Since then Motueka Online has received questions asking for fuirther detail on the law and assurances on how binding they may be, in both cases where delegations are given by TDC alone or by a new unitary council. We passed these on to Philip and here are his answers. The three questions have been slightly edited for conciseness but the answers are unedited.

Question 1. "I've been trying to ascertain whether or not the final amalgamation plans will have specific Community Board delegations laid out by the LGC as part of the plan. Without a checkbook you might as well pack it in. The current list of delegations in the LGA proposal is practically useless. Can you find out what they really can and can't delegate?"

Answer: They certainly can. The powers of delegation are contained in paragraph 32 of the 7th Schedule to the Local Government Act 2002. In full this states:

32 Delegations

(1) Unless expressly provided otherwise in this Act, or in any other Act, for the purposes of efficiency and effectiveness in the conduct of a local authority's business, a local authority may delegate to a committee or other subordinate decision-making body, community board, or member or officer of the local authority any of its responsibilities, duties, or powers except-
    (a) the power to make a rate; or
    (b) the power to make a bylaw; or
    (c) the power to borrow money, or purchase or dispose of assets, other than in accordance with the long-term plan; or
    (d) the power to adopt a long-term plan, annual plan, or annual report; or
    (e) the power to appoint a chief executive; or
    (f) the power to adopt policies required to be adopted and consulted on under this Act in association with the long-term plan or developed for the purpose of the local governance statement; or
    (g) [Repealed]

(2) Nothing in this clause restricts the power of a local authority to delegate to a committee or other subordinate decision-making body, community board, or member or officer of the local authority the power to do anything precedent to the exercise by the local authority (after consultation with the committee or body or person) of any power or duty specified in subclause (1).

(3) A committee or other subordinate decision-making body, community board, or member or officer of the local authority may delegate any of its responsibilities, duties, or powers to a subcommittee or person, subject to any conditions, limitations, or prohibitions imposed by the local authority or by the committee or body or person that makes the original delegation.

(4) A committee, subcommittee, other subordinate decision-making body, community board, or member or officer of the local authority to which or to whom any responsibilities, powers, or duties are delegated may, without confirmation by the local authority or committee or body or person that made the delegation, exercise or perform them in the like manner and with the same effect as the local authority could itself have exercised or performed them.

(5) A local authority may delegate to any other local authority, organisation, or person the enforcement, inspection, licensing, and administration related to bylaws and other regulatory matters.

(6) A territorial authority must consider whether or not to delegate to a community board if the delegation would enable the community board to best achieve its role.

(7) To avoid doubt, no delegation relieves the local authority, member, or officer of the liability or legal responsibility to perform or ensure performance of any function or duty.

(8) The delegation powers in this clause are in addition to any power of delegation a local authority has under any other enactment.

The crucial points in this are:

1. A council's power to delegate to a community board is identical to its power to delegate functions to a committee or to officers (including its CEO);

2. The only powers that may not be delegated are the very 'high order' ones, viz:
    To strike a rate
    To make bylaws
    To borrow money or deal in assets (though these may be done if envisaged in the long-term plan)
    To appoint staff
    To formally adopt the annual or long term plan or annual report or policies associated with them or the local governance statement.

3. However paragraph 2 makes it clear that the council can (if it wishes to) also delegate those actions apart from the final resolution adopting them.

4. Paragraph 6 states that the council MUST consider whether to delegate if 'if the delegation would enable the community board to best achieve its role'

In addition to this, the Resource Management Act at section 34 (2) states that: 'A territorial authority may delegate to any community board ... any of its functions, powers, or duties under this Act in respect of any matter of significance to that community, other than the approval of a plan or any change to a plan' and goes on to say in subsection (3) that: 'Subsection (2) does not prevent a local authority delegating to a community board power to do anything before a final decision on the approval of a plan or any change to a plan.'

There is also no doubt that the council has to provide the budget for the functions it (or the Local Government Commission) gives Community Boards. The 7th schedule to the Local Government Act states that a council 'must provide the necessary administrative and other facilities for that community board' and that 'the expenses of the performance and exercise by a community board of its responsibilities, duties, and powers must be paid by the territorial authority within whose district the community is situated' although 'the territorial authority may fix a limit within which expenditure may be incurred'.

So your correspondent is right to say that Community Boards CAN be given responsibility and the finances to match. Whether the LGC will give them those remains to be seen. My view is that the best option is to submit to the LGC asking for union with real powers delegated to Community Boards including the areas of local works programmes and local sections of the District Plan (subject only to adoption of the statutory planning documents by the Council) and the budget to support it. It is open to submitters to ask that, if the LGC will not mandate that level of delegation, it abandon the proposal.

Question 2. "If the councils were to amalgamate, how would a new council be structured? I mean at a committee level. This has ramifications for budgetary decisions. If community boards are going to get greater powers, how will this be funded? By targeted rate, or will council allocate money directly for ward projects? This is rather different than Tasman's current policy of funding for levels of service across the district. I can't seem to find answers to basic questions like this, and I believe it is too important to leave to a newly elected mayor to decide."

Answer: It is difficult to speculate on the committee structure an incoming council might adopt, but hopefully it would be informed by the existence of Community Boards to deal with specifically local or community issues, and so the committee structure would reflect regional issues to a greater extent than at present.

I cannot see how a council can legally use a targeted rate to provide the budget for a community board to carry out delegated functions. The matters that can be considered in relation to targeted rates are set out in Schedule 3 to the Local Government (Rating) Act 2002. They relate only to such matters as land value, improvements, area, number of habitable units, area occupied by them and the provision of services to the rateable property. There appears to be no provision for targeted rates in relation to the delegation of general functions to community boards.

Question 3. "Will the new council be legally bound to provide delegations including funding for them, or are they merely urged to but it will be left up to the council to decide how much will be delegated and what funding will be available under what structure?"

If the LGC specifies delegations then the council will be legally bound to provide them and fund them - for 6 years unless the LGC specifies a shorter period (6 years is the maximum the LGC can specify. Hopefully 6 years is enough to demonstrate their value). If the LGC does not mandate them it will be up to the incoming council. For this reason I think it is important for those who want to see a return to greater local democracy to make submissions urging the LGC to specify meaningful delegations - specifically for local works programmes (within the framework of a district-wide works programme) and for local sections of a modular District Plan. (In this regard I disagree strongly with the argument put forward at the meeting by Tim King, that the district must have one set of rules for subdividers. I live in TDC's Rural 1 zone and if I walk out my front door and cross the road I am in Rural 3a - with a totally different set of rules!)

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