New Bill proposes changes to Land Information Memorandums

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Environmental / Resource Management

Local Government Information and Meetings Amendment Bill

Associate Minister of Local Government Kieran McAnulty has released the Local Government Information and Meetings Amendment Bill which is expected to be passed into law in 2023. This Bill is set to change the status quo of how information is shared under the Local Government Information and Meetings Amendment Bill (“LGOIMA”). It seeks to achieve the following:

  • Create specific and more comprehensive obligations for providing natural hazard information on LIMs;
  • Limit the liability of local authorities in respect of natural hazard information provided on LIMs; and
  • Impose obligations on regional councils to share natural hazard and climate change information with territorial authorities (TAs).

Background

Associate Minister McAnulty stated that LIMs, the main source of property information, have been ineffective in informing the public about natural hazards. LIM reports filled with technical jargon can make it difficult for the average person to comprehend when they are short of time and expertise.

Councils’ potential liability for negligently providing inaccurate information on LIMs has meant that many councils have erred on the side of caution and provided full reports rather than attempting to summarise information. 

Currently, while TAs are required to provide information about potential natural hazards under section 44A(2)(a) of the LGOIMA, the term “natural hazard” is not used, instead requiring TAs to provide information about any special characteristics or features of the land, including potential erosion, slippage, subsidence, inundation, and other features that would fall within the meaning of a natural hazard.  Under the current provision, the obligation to provide such natural hazard information only arises where those potential hazards are not already apparent in the district plan.

Proposed Changes in LIMs

The Bill proposes splitting section 44A(2)(a) into two separate subclauses – one addressing natural hazards, and the other addressing other special features or characteristics of the land, including the likely presence of contaminants.

Importantly, whereas the proposed section 44A(2)(ab) only requires TAs to include information about special characteristics (including potential contamination) that are not apparent from the district plan, the new section 44A(2)(a) would require TAs to include information about natural hazards affecting the land regardless of whether those natural hazards are already apparent in district plan maps.

Proposed section 44B sets out further specific requirements for providing natural hazard information on a LIM.  It clarifies what is meant by a “potential hazard” i.e., one where the authority is satisfied that there is a reasonable possibility that the hazard or impact may affect the land now or in the future.  This means, for example, that if Council knows that there is a reasonable possibility that a natural hazard may affect the land in the future, it must provide this information on a LIM, even if there is no current potential impact.  This will be of particular relevance to LIMs for land that may be susceptible to inundation or erosion due to predicted rising sea levels as a result of climate change. The provision also makes it clear that information known about cumulative or combined effects of hazards must be provided.

Proposed section 44B(3) provides that information about natural hazards must be summarised.  A key theme running through the provisions is that the information must be understandable to better inform the public.  This means that attaching a lengthy and dense expert report to a LIM would not satisfy the information requirements.  The Bill also provides for regulations to be made, which may impose further requirements regarding natural hazard information that must be provided, including the form in which a summary of the information must be provided.

Proposed section 44D provides that a territorial authority or regional council is not liable in civil or criminal proceedings for making available, in good faith, information relating to natural hazards. This provision is designed to address the reluctance of councils to summarise information in LIMs for fear of incurring liability if there are inaccuracies in the summary.  This proposed clause is similarly worded to the privity clause in section 41, which protects councils from liability in respect of information provided in response to an information request under section 10 of the Act (but not in respect of information provided on a LIM).  The recent HC decision in Daisley v Whangarei District Council [2022] NZHC 1372 [this decision is under appeal] confirms that section 41 only protects council from liability in respect of information provided, it does not provide protection where there is a negligent failure to provide information.  It appears that the same principle would apply to section 44D.

The Bill also imposes obligations on regional councils to provide information that they hold about natural hazards and the impacts of climate change to TAs.  This is because it is a function of regional councils under the RMA to control the use of land for the purpose of avoiding or mitigating natural hazards.  In exercising those functions, regional councils may have information about potential natural hazards and effects of climate change earlier than territorial authorities.  Proposed section 44C imposes an obligation to make this information available to TAs “as soon as reasonably practicable”.  Given this clear statutory duty, it is possible that if a LIM omitted natural hazard information due to a negligent failure by a regional council to share its information with a TA, the regional council could face liability if damage were caused.

Changes to Section 6

 Finally, the Bill seeks to align the conclusive reasons for withholding information under the LGOIMA with the Official Information Act 1982. This includes providing that information may be withheld if it may prejudice the security or defence of New Zealand.  According to the Associate Minister, the proposed changes to section 6 will improve the ability of central government to share sensitive information with local authorities to help them manage security risks, including cyber threats and foreign interference.‚Äč

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