Tuesday 4 May 2021
Franklin Local Board
OPEN MINUTE ITEM ATTACHMENTS
10.1 Decision-making responsibilities policy
04 May 2021
File No.: CP2021/04983
Te take mō te pūrongo
Purpose of the report
1. To endorse the draft decision-making responsibilities policy for inclusion in the long-term plan.
2. The Governing Body is required by legislation to allocate decision-making responsibility for the non-regulatory activities of Auckland Council to either itself or local boards. This allocation is outlined in the Decision-Making Responsibilities of Auckland Council’s Governing Body and Local Boards policy that is published in each long-term plan and annual plan.
3. The policy also records delegations given to date by the Governing Body to local boards and provides a list of statutory responsibilities that are conferred on both governance arms.
4. An internal review of the policy was undertaken in early 2021 and considered by the Joint Governance Working Party at its meeting on 22 March 2021. The review outlined some proposed changes to the policy as well as some recommendations on how to take forward other issues that do not yet lend themselves to a policy amendment. The recommendations adopted by the Joint Governance Working Party have informed the proposed changes in the draft policy. (Attachment A).
That the Franklin Local Board:
a) endorse the draft Decision-making Responsibilities of Auckland Council’s Governing Body and local boards policy.
5. The Governing Body and local boards obtain their decision-making responsibilities from three sources:
· statutory responsibilities - functions and powers directly conferred by the Local Government (Auckland Council) Act 2009 (LGACA) 2009
· non-regulatory activities that are allocated to local boards and the Governing Body in accordance with a set of principles (section 17(2) LGACA)
· delegations – these can be regulatory or non-regulatory responsibilities; the Governing Body has delegated some of its responsibilities to local boards.
Allocation of non-regulatory responsibilities
6. The primary purpose for the policy is to set out the allocation of non-regulatory decision-making responsibilities. However, it incorporates other sources of decision-making authority for completeness and context, including a register of key delegations which have been given by the Governing Body to local boards.
Joint Governance Working Party (JGWP)
7. To facilitate a review by the JGWP, staff provided an analysis of issues raised, mainly by local boards, and proposed recommendations in relation to those issues. The report containing this advice can be found in the record of the Joint Governance Working Party Meeting, 23 March 2021.
8. The JGWP carefully considered the issues that were in scope for the review as well as the staff advice and raised some questions and issues that staff are exploring further. These are discussed in the advice below.
9. This report only covers the discussions relating to the recommended changes to the policy. A memo will be provided to each local board providing a summary of the issues considered in the review and outlining a staff response to specific issues, if any, that individual local boards raised in their feedback.
10. Following their review, the JGWP agreed as follows:
(a) note the feedback from local boards on the decision-making responsibilities policy
(b) request the following amendments to the decision-making responsibilities policy:
(i) request that staff report with urgency that local boards can be delegated approval for developing and approving area plans, provided the Governing Body can make its views known on such plans
(ii) that the local boards can take responsibilities for decision making over drainage reserves provided such decisions are constrained to those that will not negatively affect the drainage functions and stormwater network operations.
(iii) provide for local boards to tailor locally delivered projects within regional environmental programmes, subject to advice from staff on the types of projects that can be tailored
(iv) provide explicit reference to Health and Safety obligations and requirements that local boards and Governing Body must consider in their decisions
(v) local boards can object to a special liquor licence and this be enabled by an appropriate administrative process.
(c) note the recommendations that the next phase of the Waiheke pilot should consider some of the issues that have been raised including:
(i) trialing delegations from Auckland Transport on decision-making relating to street trading for roads and beaches, placemaking and urban design decisions
(ii) Identifying opportunities and non-regulatory decision-making elements in relation to town centres that the Governing Body can consider when making allocation
(d) recommend that Auckland Transport consider if there are types of community activities that can take place on road reserves without impacting the roading network.
(e) request staff scope out a review of the role of the Governing Body in regional governance within the shared governance model of Auckland Council, taking into considerations the recommendation of the CCO Review.
The following members requested that their dissenting votes be recorded as follows:
Cr A Filipaina against e)
Member R Northey against e)
The following members requested that their abstention be recorded as follows
Cr S Henderson against (b)(i)
Cr R Hills against (b)(iii)
Tātaritanga me ngā tohutohu
Analysis and advice
Request for further advice or implementation support
11. Local boards requested that the responsibility for adoption of area plans, which is currently allocated to the Governing Body, be assigned to them. This can be done through allocating the responsibility to local boards or through the Governing Body delegating this allocated responsibility to local boards to exercise on their behalf.
12. Staff have considered this request and advised the JGWP as follows.
· Area plans are an important tool in council’s spatial planning framework. It is used to strategically plan an area usually for the purpose of seeking and/or supporting changes to the Unitary Plan. The responsibility for the Unitary Plan rests with the Governing Body.
· Area plans, as a stand-alone non-regulatory tool and decision, appear ‘local’ in nature given their focus on local planning which is a responsibility allocated to local boards.
· However, area plans also meet the exceptions in section 17(2) of the LGACA: specifically that for these decisions to be effective, they require alignment or integration with other decision-making responsibilities that sit with the Governing Body. These include plan changes and amendments to the Unitary Plan, infrastructure prioritisation and regional investment.
· During the Waiheke pilot, the Waiheke Local Board sought a delegation to sign off the Waiheke Local Area Plan. This delegation was granted with conditions that included a requirement to ensure the involvement of a member of the Independent Maori Statutory Board. This suggests delegations on a case-by-case basis can be possible and provides an alternative route if a standing delegation is not given to local boards.
13. The JGWP carefully considered the advice of staff but were not all in agreement with it. Members had strong views about the need to empower local boards in their local planning role and have requested staff to reconsider their advice and to explore the risks and possible risk mitigation of enabling local boards to adopt the plans through a delegation from the Governing Body.
14. Whilst the practice already ensures high involvement of local boards in the development of these plans, it was the view of the JGWP members that delegating the adoption decision with relevant parameters is more empowering for local boards. JGWP members felt that this would enable local boards to make local planning decisions that are aligned with their local board plan aspirations and other community priorities without requiring further approval from the Governing Body, whose members may not be as familiar with these local priorities.
15. JGWP members agreed that area plans, while local, often require funding and alignment to other plans that are developed by the Governing Body. Keeping the responsibility and accountability allocated to the Governing Body ensures the decision continues to sit at the right level but that this does not necessarily need to be exercised by the Governing Body on all occasions.
16. The JGWP have requested advice from staff on how to pursue a Governing Body delegation. Staff will seek to provide further advice to the JGWP. If the JGWP considers recommending a delegation from the Governing Body on this issue, staff will present the request to the Governing Body for consideration. A delegation can be given at any time and it will have immediate effect.
Special liquor licence administration process for notifying local boards
17. One of the issues raised in the local board feedback is special liquor license applications. On this matter, the request was for clarification that local boards can object, as per the delegation from Governing Body granting the ability to make objections under the Sale and Supply of Alcohol Act 2012. Elected members perceived this is not being enabled as notifications on these licences are not proactively shared with them in the same way that information about other applications (on, off and club licences) are.
18. The JGWP has recommended that this be clarified in the policy and request that staff enable notifications to be sent to local board where public consultation is required for special licence applications.
Proposed changes to the Allocated decision-making responsibilities (part c)
Local purpose (drainage) reserves
19. During discussions with local boards on the scope of the review, many local boards raised concerns about the interpretation of the policy.
20. An example raised by Upper Harbour Local Board demonstrated the need for clarity, especially in areas where decision-making authority allocated to both governance arms overlap. During the development of the board’s local park management plans, staff had advised that those reserves that are primarily dedicated to stormwater drainage should be treated as part of the stormwater network. This advice appeared to suggest that local boards do not hold any decision-making over a subset of local parks since it is the Governing Body that is responsible for management of the stormwater network.
21. Through discussions with staff as part of this review, the advice has been revised. Staff accept this is an example of where there is clear overlap in activities and decision-making responsibilities. Staff will need to work closely with local boards to develop protocols that enable decision-making by the Governing Body on stormwater issues to be exercised efficiently and effectively.
22. The JGWP were supportive of the staff recommendation to clarify that the exercise of decision-making in relation to stormwater network and how it functions must be properly enabled on local parks. This is done by acknowledging that these considerations and decisions about the stormwater network constrains local board decision-making over local parks (or parts of local parks) that have a stormwater drainage function. This clarity will also help staff to understand that the local board continues to retain the decision-making responsibility over all other activities of local parks.
Role of local boards in environmental programmes and grants
23. Some local boards feel the current policy wording and ways of working does not provide a meaningful role for local boards on regional environmental issues, specifically regional environmental programmes. These local boards have also requested that local boards be enabled to monitor the progress of any locally-delivered projects (funded by regional environmental programmes) through the established work programme reporting mechanism.
24. Local board input into regional environmental programmes is at the policy and/or programme approval stage. The approved programme direction provides sufficient guidance to staff, acting under delegation from the Governing Body, when developing an implementation plan and prioritising projects for delivery.
25. At the operational level, where identified priorities and project ideas are to be delivered in local parks or other key locations within the local board area, local board input is sought by staff at workshops. This is to ensure locally delivered projects are tailored to local circumstances. While it is possible to capture this current practice in the policy, this needs to be done in a way that continues to enable relevant local boards to add value to projects without too many administrative requirements. A member of the JGWP also expressed concern about signalling all projects can be tailored to local circumstances as this is not the case.
Health and Safety – parameters for decision-making
26. Council decisions need to take account of Health and Safety considerations, as well as reflecting a shared approach to risk.
27. Staff advise that Health and Safety considerations should be explicit in the policy to protect the council from liability. The JGWP supports this recommendation and a reference to complying with health and safety legislation and plans has been inserted in the policy.
Issues relating to delegations
28. The review considered requests for new delegations or additional support to implement delegations given to local boards. Some of these were requests for delegation from Auckland Transport.
29. The review considered that before recommending or agreeing any new delegation, the delegator, whether it be Governing Body or Auckland Transport, must first weigh the benefits of reflecting local circumstances and preferences (through a delegation) against the importance and benefits of using a single approach in the district (through itself retaining the responsibility, duty, or power concerned).
30. Staff advised the JGWP to recommend that the Waiheke pilot (part of the Governance Framework Review) which is about to enter another phase, expands to include a trial of delegated decision-making on key issues raised in this review. They include several issues that relate to Auckland Transport, namely street trading and town centre/urban design. Piloting these delegations can help Auckland Transport to identify any practical issues that need to be considered before a formal delegation to all local boards can be given on any of the issues identified.
JGWP resolution on role of Governing Body
31. Some members of the JGWP expressed concerns about what they perceived to be a heavy focus on local board responsibilities.
32. Both sets of governors were invited to identify issues to be examined in the review. The Governing Body, in workshop discussions, did not identify any major issues that it wanted to review but was open to including any issues raised by local boards. As a result, almost all of the issues raised were suggested by local boards and the majority of them relate to their areas of decision-making responsibility. This may have given the impression of a bias towards examining the role of local boards.
33. To address this concern, the JGWP requested that staff scope a review of the role of the Governing Body. Staff will provide advice to the JGWP in response to this request at an upcoming meeting.
Escalation process for any disputes relating to the Allocation of decision-making responsibilities for non-regulatory activities
34. The process for resolving disputes relating to allocation of non-regulatory responsibilities (including disputes over interpretation of the allocation table) will vary depending on the issue at hand. The chart below outlines the basic escalation process.
Tauākī whakaaweawe āhuarangi
Climate impact statement
35. This report relates to a policy and does not have any quantifiable climate impacts.
36. Decisions that are taken, in execution of this policy, will likely have significant climate impacts. However, those impacts will be assessed on a case-by-case basis and appropriate responses will be identified as required.
Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera
Council group impacts and views
37. Council departments support and implement decisions that are authorised by this policy.
38. Feedback received to date from some departments reinforces the need for guidance notes to aid interpretation of the allocations in the decision-making policy. This work will be done in consultation with departments.
Ngā whakaaweawe ā-rohe me ngā tirohanga a te poari ā-rohe
Local impacts and local board views
39. This report canvasses issues that had been raised by local boards and focuses on those issues that warrant an amendment to the policy.
40. All other issues raised by local boards in their feedback were canvassed in the staff advice that formed part of the review. This information is available to all local boards.
41. Staff have also prepared responses to specific issues raised by local boards and have shared this information in a memo.
Tauākī whakaaweawe Māori
Māori impact statement
42. There are no decisions being sought in this report that will have a specific impact on Māori.
Ngā ritenga ā-pūtea
43. There are no financial implications directly arising from the information contained in this report.
Ngā raru tūpono me ngā whakamaurutanga
Risks and mitigations
44. The are no identified risks other than timeframes. The Governing Body will be adopting this policy in June as part of the Long-term Plan. Local board feedback is requested in early May in order to provide time to collate and present this to the Governing Body for consideration.
Ngā koringa ā-muri
45. Staff will prepare guidance notes to aid the interpretation of the decision-making policy following its adoption.
Decision making responsibilities policy
Shirley Coutts - Principal Advisor - Governance Strategy
Louise Mason - GM Local Board Services
Trina Thompson - Local Area Manager