31. Statutory Reform

31.1. The implementation of the proposed reforms to the governance of the Auckland region will require some form of statutory intervention. This is because the existing local authorities are constituted pursuant to the Local Government Act 2002 – the creation of the Auckland Council and the dissolution of the existing local authorities will involve substantial amendment to the existing regime.

31.2. The Commission has considered whether the changes to the constitution of local authorities in order to establish the Auckland Council and make the other changes proposed in this Report could best be achieved by

• amendments to the Local Government Act 2002
• a reorganisation proposal pursuant to section 24 of the Local Government Act 2002 and consequently by an Order in Council giving effect to that proposal; or
• a specific Act of Parliament.

31.3. Amending the Local Government Act 2002 in order to give effect to the recommendations in this Report would involve piecemeal amendments to a large number of provisions in that Act. This would make the Act more cumbersome and unwieldy, and would make the administration of the new Auckland governance structures less transparent, especially to those unfamiliar with the legislation. The Commission rejects this option accordingly.

31.4. Nor does the Commission consider that a reorganisation proposal would be an appropriate mechanism for implementing the proposed reforms, despite the superficial attraction of using an existing statutory mechanism.¹ The reorganisation process requires the review of any reorganisation proposal by the Local Government Commission, followed by consultation with stakeholders, the notification of a draft proposal, and public submissions. It also requires a poll of electors which, by simple majority, determines whether or not the proposal will proceed. Plainly, the complex and wide-ranging recommendations in this Report are not suited to this process; nor would it be an efficient use of time and resources to go through a further consultation and submission process, which would in large part duplicate the consultation and submission process carried out by the Commission.

31.5. Perhaps even more significantly, however, there are a number of provisions in existing legislation such as the Local Government Act 2002 and the Local Electoral Act 2001 that conflict with the Commission’s proposals in this Report, and a reorganisation proposal would not address this. For example, the current provisions of the Local Government Act 2002 relating to the constitution and structure of subordinate entities, such as committees of a council and community boards, would not allow for the form of local councils proposed by the Commission.

31.6. Similarly, the Commission’s proposals include giving more specific powers, functions and duties to the Mayor of Auckland, whereas the Local Government Act 2002 establishes a mayor as the chairperson of a territorial authority but otherwise gives mayors few specific powers or functions.²

31.7. The Commission’s preferred option, therefore, is special-purpose legislation encompassing all of the provisions required to implement the new governance structures. Specific, stand-alone legislation would be much more accessible and transparent, and would avoid issues of jurisdiction or conflict with other laws; the scope of any proposed reform would not be hindered by any existing legislation, rule of law, or convention.

31.8. The new Act should

• establish the new Auckland Council and dissolve the existing local authorities and their districts
• define the new Auckland Region and the various areas within Auckland based on, but not replicating, the existing territorial districts
• provide for the membership of the Auckland Council including both members at large representing the whole city and representatives from wards. Provision will also need to be made for two elected Māori councillors and a third councillor appointed by the Mana Whenua Forum.
• create the local councils, which although part of the Auckland Council will be distinct entities. There will need to be specific legislative provisions providing for their constitution, role and relationship with the Auckland Council, including the extent to which functions of the Auckland Council may be delegated to them. Each local council will also be required by legislation to prepare a community action plan in order to enhance local consultation and planning.
• give the Mayor of the Auckland Council specific powers of appointment of the deputy mayor and the chairpersons of committees, and clear powers to initiate policy through the preparation of the long-term council community plan and the annual plan.
• increase the accountability of the mayor by requiring the mayor to hold at least four public meetings each year, to present the Annual Report of the council, to
• meet with local council chairs monthly, and to convene regular plenary meetings involving both local and central government representatives.
• amend the Resource Management Act 1991 to remove the right of appeal against decisions on submissions in relation to regional policies in the Auckland Regional Policy Statement (similar to provisions relating to national policies in national policy statements) and to impose a moratorium on applications for private plan changes until the new district plan is operative as set out in Chapter 24, “Planning for Auckland”.
• provide for the position of Auckland Services Performance Auditor (see Chapter 32, “Achieving a High-Performance Auckland Council”).
• provide for Watercare Services Ltd to assume responsibility for all water and wastewater services in Auckland. This will include replacing the provisions in the Local Government Act 1974 that have remained in force notwithstanding the passage of the Local Government Act 2002, continuing the operation of the Auckland Metropolitan Drainage Act 1960, and transferring to Watercare the role of the North Shore Drainage Board under the North Shore Drainage Act 1963. Other than enabling Watercare to provide all water and wastewater services in Auckland, it is not recommended at this stage that the new Act add further powers such as those that other utility providers (of electricity, gas and telecommunications) have in respect of rights of entry for maintenance and emergencies and constructing works under roads. If necessary, Watercare will need to rely on the Auckland Council to use its powers under Part 8 of the Local Government Act 2002. In due course it will be desirable for these provisions to be reviewed and updated, but in the meantime the important objective is to bring the essential water and wastewater functions within a single entity for the whole district.
• provide for the making of regulations to facilitate the establishment process and the orderly transition from the existing regime to the new one.
• provide for transitional provisions, based largely on those already set out in the Local Government Act 2002 for reorganisation orders, to ensure that existing powers and duties, property rights and obligations, bylaws, rating and valuation rolls and civil defence arrangements are carried over at least until the new Auckland Council has had the opportunity to review them. These provisions should also make clear that the rights or interests of creditors will not be affected by the reform process.

31.9. While a number of these matters could be achieved through existing legislation, including them in a special Act of Parliament should establish them with a greater degree of permanence, and so provide greater certainty for both the Auckland Council and the citizens of Auckland as to the basis for the governance of the region.

31.10. In order to identify the degree to which the Commission’s recommendations will require changes to existing legislation, a draft set of statutory provisions which could be used as the basis for a special-purpose “Auckland Act” are set out at the end of this chapter.

31.11. It may be necessary for some parts of the proposed legislation to be enacted in advance of the balance to ensure for example, that the Establishment Board has the powers it needs to define the boundaries of the new Auckland Council and its wards and the new local councils. This may be necessary to ensure that the electoral processes can be undertaken in time. The Establishment Board may also need powers in relation to the appointment of an interim Chief Executive, and this might need to be provided for in advance of the main body of legislation.

31.12. The Commission also recommends in Chapter 25, “Transport” a number of changes to legislation relating to the governance of transport matters in Auckland. These changes will require amendments to the Local Government (Auckland) Amendment Act 2004 to abolish the Auckland Regional Transport Authority and to create the new Regional Transport Authority, as well as consequential changes to the Land Transport Management Act 2003. These matters will require a specific review of that legislation which is better undertaken by the New Zealand Transport Agency and the Ministry of Transport, and are therefore not included in the draft provisions set out at the end of this Chapter.

31.13. Finally, the Commission notes that the special-purpose Auckland Act will modify the Local Government Act 2002 and other legislation only to the extent that it conflicts with those Acts. There are, for example, many provisions of the Local Government Act 2002 which will continue to apply, and which will ensure that the procedural provisions of local government apply to the Auckland Council in the same way that they do in the rest of New Zealand.

Recommendation

31A The Government should promote legislation to give effect to the changes recommended in this report, by adopting the draft Auckland Act contained in Chapter 31.

The Auckland Act 2009 1. Title and commencement

(1) This Act may be cited as the Auckland Act 2009.

(2) Except as provided in subsection (3), this Act shall come into force on the date of the 2010 Local Body elections.

(3) Section 23 shall come into force on the day after the date on which this Act receives the Royal assent.

2. Interpretation

In this Act: “Auckland” means the region and the district of Auckland constituted by this Act “Auckland Council” means the Auckland Council constituted by this Act “Local Council” has the meaning set out in section 11(2) “Mana Whenua Forum” means the forum of representatives of mana whenua Māori in the district of Auckland. “The former authorities” means

(a) The Auckland Regional Council; and

(b) The Auckland City Council; and

(c) The Rodney District Council; and

(d) The Waitakere City Council; and

(e) The North Shore City Council; and

(f) The Manukau City Council; and

(g) The Papakura District Council; and

(h) The Franklin District Council.

3. Application of other legislation

(1) This Act is to be read in conjunction with the provisions of the Local Government Act 2002 and the Local Electoral Act 2001 and the Resource Management Act 1991.

(2) However, if there is any inconsistency between the provisions of this Act and any provisions of the Local Government Act 2002 or the Local Electoral Act 2001 or the Resource Management Act 1991, this Act prevails.

(3) The 2nd schedule to the Local Government Act 2002 is amended by including the Auckland Council in the list of territorial authorities.

4. Dissolution of existing local authorities and community boards and abolition of existing districts and communities

(1) Every local authority named in Part 1 of Schedule 6 to this Act is hereby dissolved.

(2) Every district named in Part 1 of Schedule 6 to this Act is hereby abolished.

(3) Every community named in Part 2 of Schedule 6 to this Act is hereby abolished and its respective Community Board is hereby dissolved.

5. Constitution of Auckland and the Auckland Council

(1) There is hereby constituted a district, to be known as “Auckland”, which shall comprise the area delineated on S.O. Plan XXXXX deposited with the Chief Executive of Land Information New Zealand.

(2) There is hereby constituted a region, to be known as “Auckland”, which shall comprise the area delineated on S.O. Plan XXXXX deposited with the Chief Executive of Land Information New Zealand.

(3) A territorial authority, to be known as the “Auckland Council”, is hereby constituted for Auckland.

(4) The Auckland Council shall be a unitary authority.

(5) Part 1 of Schedule 7 to the Local Government Act 2002 (excluding clauses 17, 18 and 25) applies to the Auckland Council.

6. Continuing improvement

(1) The Auckland Council must make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness.

7. Wards within Auckland

(1) Auckland is hereby divided into six wards.

(2) These six wards are

(a) The Northern and Hauraki Gulf Islands Rural Ward, which shall comprise the area delineated on S.O. Plan XXXXX deposited with the Chief Executive of Land Information New Zealand

(b) The Northern Urban Ward, which shall comprise the area delineated on S.O. Plan XXXXX deposited with the Chief Executive of Land Information New Zealand

(c) The Western Urban Ward, which shall comprise the area delineated on S.O. Plan XXXXX deposited with the Chief Executive of Land Information New Zealand

(d) The Central Urban Ward, which shall comprise the area delineated on S.O. Plan XXXXX deposited with the Chief Executive of Land Information New Zealand

(e) The Southern Urban Ward, which shall comprise the area delineated on S.O. Plan XXXXX deposited with the Chief Executive of Land Information New Zealand

(f) The Southern Rural Ward, which shall comprise the area delineated on S.O. Plan XXXXX deposited with the Chief Executive of Land Information New Zealand.

8. Membership of Auckland Council

(1) The Auckland Council shall consist of a mayor and 23 members.

(2) The Mayor of Auckland shall be elected by the electors of Auckland as a whole.

(3) The members of the Auckland Council shall be elected as follows

(a) Ten members elected by the electors of Auckland as a whole; and

(b) One member elected by the electors of the Northern and Hauraki Gulf Islands Rural Ward; and

(c) Two members elected by the electors of the Western Urban Ward; and

(d) Two members elected by the electors of the Northern Urban Ward; and

(e) Two members elected by the electors of the Central Urban Ward; and

(f) Two members elected by the electors of the Southern Urban Ward; and

(g) One member elected by the electors of the Southern Rural Ward; and

(h) Two members elected by the electors of Auckland as a whole who, on the day before polling day for the election, are registered as electors of a Māori electoral district; and

(i) One member appointed by the Mana Whenua Forum.

(4) Sections 24A, 24B and 24C of the Local Electoral Act 2001 apply to the electoral rights of electors in respect of the members to be elected pursuant to sub-section (3)(h) as if the whole of Auckland were a Māori ward of that district.

9. Mayor of Auckland

(1) The Mayor of Auckland shall have the power

(a) to appoint the deputy mayor of the Auckland Council

(b) to appoint the chairperson of each committee of the council and for that purpose may appoint him- or herself

(c) to propose the draft Long Term Council Community Plan and the draft Annual Plan to the Auckland Council

(d) in consultation with and acting through the Chief Executive Officer and within the adopted budget in the annual plan for such expenditure, to establish and maintain an appropriately staffed office in order to be able to exercise the powers, functions and duties conferred by this Act; and

(e) within the adopted budget in the annual plan for such expenditure, to obtain independent advice.

(2) The Mayor of Auckland may not delegate any of the powers in sub-section (1).

(3) The Mayor of Auckland shall be ex officio a member of every standing committee, sub-committee and board of the Auckland Council.

10. Special meetings

(1) The Mayor of Auckland must, no less often than monthly, convene meetings with the chairpersons of every local council.

(2) The mayor and every member of the Auckland Council shall be entitled to attend and speak (but not to vote) at meetings of each local council.

(3) Every chairperson of a local council shall be entitled to attend and speak (but not to vote) at meetings of the Auckland Council.

(4) The Mayor of Auckland must, no less often than quarterly, convene plenary meetings of all members of the Auckland Council, every local council and every community board (if any). Every Minister of the Crown and every Member of Parliament representing an electorate which lies wholly or partly within the district of Auckland shall be entitled to attend and speak (but not to vote) at such plenary meetings.

(5) The Mayor of Auckland must present and speak to the annual report of the Auckland Council prepared under section 98 of the Local Government Act 2002 at a public meeting convened in accordance with subsection (4) and held within the time required for making the annual report publicly available.

(6) The Mayor of Auckland must hold a minimum of four public meetings each year in different parts of Auckland to receive public feedback and input.

(7) With the exception of the meetings referred to in subsection (6), the provisions of the Local Government Official Information and Meetings Act 1987 shall apply to the meetings required by this section as if they were meetings of the Auckland Council.

11. Areas within Auckland

(1) Auckland is hereby divided into six local council areas, as follows

(a) The Rodney area, which shall comprise the area delineated on S.O. Plan XXXXX deposited with the Chief Executive of Land Information New Zealand

(b) The Waitakere area, which shall comprise the area delineated on S.O. Plan XXXXX deposited with the Chief Executive of Land Information New Zealand

(c) The Waitemata area, which shall comprise the area delineated on S.O. Plan XXXXX deposited with the Chief Executive of Land Information New Zealand

(d) The Tāmaki-makau-rau area, which shall comprise the area delineated on S.O. Plan XXXXX deposited with the Chief Executive of Land Information New Zealand

(e) The Manukau area, which shall comprise the area delineated on S.O. Plan XXXXX deposited with the Chief Executive of Land Information New Zealand

(f) The Hunua area, which shall comprise the area delineated on S.O. Plan XXXXX deposited with the Chief Executive of Land Information New Zealand.

12. Local councils

(1) There shall be established within the Auckland Council and for each of the corresponding areas of Auckland the following local councils

(a) The Rodney Local Council; and

(b) The Waitakere Local Council; and

(c) The Waitemata Local Council; and

(d) The Tāmaki-makau-rau Local Council; and

(e) The Manukau Local Council; and

(f) The Hunua Local Council.

(2) A local council—

(a) shares the governance of its area within Auckland with the Auckland Council but is subsidiary to it; and

(b) is the local representative body that serves as an advocate for the residents, ratepayers and communities of its area; and

(c) has the functions, powers and duties set out in section 15; and

(d) is an unincorporated body; and

(e) is not a local authority or a community board; and

(f) is not a committee of the Auckland Council; and

(g) may not acquire, hold, or dispose of property, or appoint, suspend, or remove staff.

(3) A local council must, at all times, have a community action plan prepared and adopted in accordance with Schedule 1.

(4) Not later than 1 March after each triennial general election of members, each local council must enter into a governance agreement with the Auckland Council prepared and adopted in accordance with Schedule 2.

(5) A local council is deemed for the purposes of the Reserves Act 1977 to be the administering body in respect of every reserve within its area for which the Auckland Council has delegated management responsibility to it.

(6) Part 1 of Schedule 7 to the Local Government Act 2002 (excluding clauses 33 to 36) applies to local councils, with all necessary modifications, as if they were local authorities.

13. Wards of local councils

(1) Subject to subsections (2), (3) and (4), each local council area in Auckland shall be divided into wards as determined by the Auckland Council from time to time.

(2) Except as provided for in subsection (3), the number of wards in each urban local council area shall be determined on the following basis

(a) The electoral population of the area shall be divided by 40,000, and the quotient so obtained shall be the number of wards in that area

(b) Where the quotient includes a fraction, the fraction shall be disregarded unless it exceeds a half, in which case the number of wards shall be the next whole number above the quotient.

(3) There shall be a Hauraki Gulf Islands Ward in the Tāmaki-makau-rau urban local council area comprising the area delineated on S.O. Plan 63508 deposited with the Chief Executive of Land Information New Zealand.

(4) There shall be 3 wards in each rural local council area with the boundaries of each ward determined so as to ensure, to the extent that is reasonably practicable, that the ratio of members to electoral population in each ward produces a variance of no more than plus or minus 10%.

(1) Except as provided for in subsection (2), the members of each local council shall be two members from each ward elected by the electors of each ward and one further member deemed to be elected pursuant to sub-section (4).

(2) There shall be one member elected to the Tāmaki-makau-rau local council from the Hauraki Gulf Islands Ward.

(3) The chairperson and deputy chairperson of each local council shall be appointed in accordance with clause 25 of Part 1 of Schedule 7 to the Local Government Act 2002.

(4) On the appointment of a chairperson of a local council, that person shall cease to have any formal role as a representative of the ward from which that person was elected and the next highest polling candidate in the same ward from which the chairperson was elected shall be deemed to be elected as one of that ward’s representatives.

15. Functions, powers, and duties of local councils

The functions, powers and duties of each local council shall be

(1) To focus on the maintenance and enhancement of local amenity and the quality of the local environment within their respective areas in accordance with the mandate of the electors of their respective areas

(2) To liaise and consult with relevant local organisations on behalf of the Auckland Council

(3) To prepare budget requests in order to provide local works and services for submission to the Auckland Council as part of the preparation and adoption of the Long Term Council Community Plan and the Annual Plan

(4) To work collaboratively and in partnership with the Auckland Council to achieve effective local government in Auckland by

(a) establishing and maintaining effective mechanisms for engagement with the communities in its area; and

(b) assisting the Auckland Council in its decision making on region-wide plans, policies and service standards through advising it of relevant community needs and views; and

(c) implementing, under the statutory delegations and any particular delegated authority from the Auckland Council, projects and programmes the catchment for or the impacts of which are primarily within the communities served by the local council; and

(d) considering and reporting on all matters referred to it by the Auckland Council, or any matters of interest or concern to the local council; and

(e) maintaining an overview of all services provided by the Auckland Council within the area in order to contribute a local perspective to their effective operation and ongoing review; and

(f) preparing and adopting a Community Action Plan as set out in Schedule 1; and

(g) preparing an annual submission to the Auckland Council for expenditure within the area; and

(h) recommending, as part of its annual submission to the Auckland Council, any special targeted rate or rates to fund services or projects over and above those provided by the Auckland Council on a region-wide basis; and

(i) undertaking any other responsibilities that are delegated to it by the Auckland Council.

(5) To exercise the powers set out in Schedule 3 together with such other powers as may be delegated to each local council from time to time by the Auckland Council.

(6) To manage the application of the funds allocated in the annual plan for works and services in its area and under its control including where applicable to request the Auckland Council to provide such works and services.

(7) To exercise the functions of territorial authorities in relation to community boards within their areas.

(8) Where the local council exercises a function, power or duty delegated to it by the Auckland Council or conferred by this Act, then

(a) all decisions made by a local council under statutory or delegated authority must comply with all adopted plans and policies of the Auckland Council; and

(b) the Auckland Council may not modify or rescind a decision taken by the local council where that local council was acting in accordance with that delegation or statutory authority.

(9) The Auckland Council shall

(a) establish and maintain service centres and appropriate management and service staff in each local council area to enable each local council to carry out its functions, powers and duties

(b) acting through the Chief Executive Officer and within the adopted budgets for such expenditure, apply its funds in relation to the functions, powers and duties conferred by this section for works and services according to the request of the local council.

16. Communities and community boards

(1) The communities of Great Barrier and Waiheke constituted by clause 114(3) of the Local Government (Auckland Region) Reorganisation Order 1989 shall continue to be communities within Auckland.

(2) There is hereby constituted a community to be known as the “Central City and Waterfront Community” for the area delineated on S.O. Plan XXXXX deposited with the Chief Executive of Land Information New Zealand.

(3) The community board for each community constituted by subsection (1) of this section shall consist of

(a) six members elected by the electors of the community; and

(b) one person elected from time to time as a member of the Tāmaki-makau-rau local council and appointed by the Auckland Council to the community board.

(4) The community board for the Central City and Waterfront Community Board shall consist of six members elected by the electors of the community.

(5) The chairperson of the Central City and Waterfront Community Board shall be appointed by the Auckland Council as a member of the committee of the Auckland Council, which has primary responsibility for matters affecting the Central City and Waterfront community and shall be entitled to attend, speak and vote at any meeting of any such committee.

(6) Nothing in subsections (1) – (5) of this section shall affect the constitution of other communities within Auckland pursuant to Schedule 6 to the Local Government Act 2002.

(7) Except as provided in subsections (7), (8), (9) and (10), sections 51 – 54 of the Local Government Act 2002 apply to the community boards for each community within Auckland as if the local council for the area in which the community is situated were a territorial authority.

(8) The community boards of Great Barrier and Waiheke shall each have in their respective communities, in addition to the role specified in section 52 of the Local Government Act 2002 and any functions delegated to it by the Tāmaki-makau-rau local council, the power to decide how local services shall be delivered within the scope of the annual plan of the Auckland Council and the community action plan for Tāmaki-makau-rau as those plans apply to their communities and the power to manage community halls and reserves in their communities.

(9) The Auckland Council is the territorial authority in respect of the Central City and Waterfront Community Board.

(10) The Central City and Waterfront Community Board shall have, in addition to the role specified in section 52 of the Local Government Act 2002 and any functions delegated to it by the Auckland Council, the power to decide how local services shall be delivered within the scope of the annual plan as it applies to its community and the power to manage community halls and reserves in its community.

(11) Notwithstanding section 53(3)(a) of the Local Government Act 2002, the community boards of the communities of Great Barrier, Waiheke and Central City and Waterfront may request the Auckland Council to apply the funds allocated in the annual plan for works and services in their communities in respect of the delivery of local services and the management of community halls and reserves.

17. Planning

(1) The Auckland Council shall have the functions of both a territorial authority and a regional council under the Resource Management Act 1991.

(2) Notwithstanding anything in the Resource Management Act 1991 or any other Act or rule of law

(a) all submissions on a proposed regional policy statement in respect of the Auckland Region shall be heard, and all recommendations on submissions on a proposed regional policy statement in respect of the Auckland Region shall be made, by independent commissioners who are not members or employees of the Auckland Council or any local council

(b) no person who makes a submission on a proposed regional policy statement in respect of the Auckland Region may appeal to the Environment Court in respect of—

(i) a provision included in that proposed policy statement; or

(ii) a provision that the decision on submissions proposes to include in that policy statement; or

(iii) a matter excluded from that proposed policy statement; or

(iv) a provision that the decision on submissions proposes to exclude from that policy statement.

(c) no person may request a change to a district plan or a regional plan (including a regional coastal plan) in respect of any part of Auckland from the date of commencement of this Act until the day after the date on which the district plan for the whole of Auckland becomes operative.

(d) where any request to any of the former authorities for a change to a district plan or a regional plan (including a regional coastal plan) made pursuant to clause 21 of Part 2 of Schedule 1 to the Resource Management Act 1991 remains uncompleted to the stage of decisions by any of the former authorities but is not the subject of any appeal, as at the date of commencement of this Act, the Auckland Council (unless it determines to adopt the change as its own) must not process or decide on the request.

18. Water and wastewater

There shall continue to be a company known as Watercare Services Limited, which shall be constituted and operated in accordance with the provisions of Schedule 4 to this Act.

19. Principal objective of council-controlled organisations of Auckland Council

(1) The principal objective of a council-controlled organisation of the Auckland Council is to operate as a successful business and, to this end,—

(a) to achieve the objectives of its shareholders, both commercial and non-commercial, as specified in the statement of intent; and

(b) to be as profitable and efficient as comparable businesses that are not controlled by the council; and

(c) to be a good employer; and

(d) to exhibit a sense of social and environmental responsibility by having regard to the interests of the community in which it operates and by endeavouring to accommodate or encourage these when able to do so; and

(e) if the council-controlled organisation is a council-controlled trading organisation, to conduct its affairs in accordance with sound business practice.

(2) In subsection (1)(c), good employer has the same meaning as in clause 36 of Schedule 7 to the Local Government Act 2002.

(3) This section applies in Auckland in place of section 59 of the Local Government Act 2002.

20. Inter-regional committee

(1) There shall be a joint committee of the Auckland Council, the Northland Regional Council, the Waikato Regional Council and the Bay of Plenty Regional Council.

(2) There shall be eight members of the joint committee, with each constituent council appointing two representatives. The chairperson of the joint committee shall be appointed in accordance with clause 25 of Part 1 of Schedule 7 to the Local Government Act 2002.

(3) The joint committee shall meet no less frequently than quarterly to consider and discuss matters of common concern including any cross-boundary issues between any of them and to report to the constituent councils with recommendations on action to be taken to promote the social, economic, environmental, and cultural well-being of the communities in the districts of the constituent councils, in the present and for the future.

21. Services performance auditor

(1) The Auckland Council must appoint a services performance auditor.

(2) The appointment, review and role of a services performance auditor shall be in accordance with the provisions of Schedule 5 to this Act.

22. Consequential amendments

The Acts specified in Schedule 7 are consequentially amended in the manner indicated in that schedule.

23. Establishment provisions

The Governor-General may, by Order in Council made on the recommendation of the Minister for Local Government, make regulations for 1 or more of the following purposes

(a) To enable the establishment of the Auckland Council

(b) To prepare and implement an establishment plan for Auckland

(c) To determine the initial boundaries of local council areas, wards and communities within Auckland

(d) To enable the election of the Mayor of Auckland, members of the Auckland Council, members of local councils, members of community boards at the 2010 local elections, under the Local Electoral Act

(e) To prepare draft strategic and business development plans, operating policies and practices, and capability, facilities, and financial plans for consideration by the Mayor and members of the Auckland Council

(f) To advertise for, interview and employ a Chief Executive of the Auckland Council

(g) To create and fund a project management office for the establishment of the Auckland Council

(h) Prescribing transitional and savings provisions relating to the coming into force of this Act, which may be in addition to or in place of any of the provisions in this Act; and, without limiting the generality of the foregoing, any such regulations may provide that, subject to such conditions as are specified in the regulations, specified provisions of this Act shall not apply, or specified provisions of Acts repealed or amended by this Act, or of regulations, or Orders in Council shall continue to apply, during a specified transitional period

(i) Providing for such matters as are contemplated by, or necessary for giving full effect to, this Act and for its due administration.

24. Transitional provisions

(1) The Auckland Council, from the date of the 2010 Local Body elections, has, and may exercise, and is responsible for,—

(a) all the powers, duties, acts of authority, and responsibilities that were previously exercised by the former authorities, or that would have been exercised by them if they had remained in existence or in control of the region or districts of the former authorities

(b) all the liabilities, obligations, engagements, and contracts that were previously the responsibility of the former authorities, or that would have been their responsibility if they had remained in existence or in control of the region or districts of the former authorities

(c) all the actions, suits, and proceedings pending by or against the former authorities, or that would have been their responsibility if they had remained in existence or in control of the region or districts of the former authorities.

(2) The responsibilities, duties, and powers of the chairperson, mayors and chief executives of the former authorities must be exercised by the mayor and chief executive of the Auckland Council.

(3) All real and personal property vested in any of the former authorities vests in the Auckland Council, subject to all existing encumbrances.

(4) All bylaws in force in the district or region of any of the former authorities that are applicable to the altered circumstances of the Auckland Council are deemed the bylaws of the Auckland Council, and those bylaws remain, until revoked or altered by the Auckland Council, in force in the area in which they were in force immediately before the abolition or the alteration of boundaries, and, if those bylaws cannot be restricted to that area, they must be treated as inapplicable and revoked by the abolition or alteration of boundaries.

(5) All rates or levies and other money payable in respect of any former authority, or of an area of land included in Auckland, are due and payable to the Auckland Council.

(6) The rights or interests of creditors of any of the former authorities are not affected by the abolition of those authorities and the creation of the Auckland Council.

(7) The valuation rolls, electoral rolls, and rate records in force in the district or region of any former authority continue in force in Auckland until those rolls or records are made by the Auckland Council, and, until that time, the Local Government (Rating) Act 2002 applies.

(8) Every civil defence emergency management group plan that is in force in respect of any area included in Auckland continues in force until a new plan is prepared and approved for Auckland under the Civil Defence Emergency Management Act 2002.

(9) If the area of an abolished district or region comprises part only of another district or region, any money to the credit of the abolished local authority’s accounts must, after all liabilities have been provided for, be expended to the benefit of the residents of that area, and any money required to be paid into the accounts of the abolished local authority to meet any deficiency must be raised within the area of the abolished local authority.

(10) The provisions of clauses 60 – 65 and 68 – 70 of Schedule 3 to the Local Government Act 2002 apply to this Act as if this Act were an Order in Council giving effect to a reorganisation scheme.

(11) The provisions of sections 30B – 30J of the State Sector Act 1988 apply to this Act as if the dissolution of the former authorities and the constitution of the Auckland Council were a reorganisation between Departments within the Public Service and as if the employees of any of the former authorities were employees of a Department.

(12) The provisions of sections 30B – 30J of the State Sector Act 1988 apply to this Act as if the winding-up of any council controlled organisation of one of the former authorities and the transfer of the functions of that council-controlled organisation to the Auckland Council or to any other council-controlled organisation, as a consequence of the dissolution of the former authorities and the constitution of the Auckland Council, were a reorganisation between Departments within the Public Service and as if the employees of any of the council-controlled organisations of any of the former authorities were employees of a Department.

25. Repeals

The enactments specified in Schedule 7 are repealed.

 

Schedules

Schedule 1 – Local Council Community Action Plans 1. Local council community action plans

(1) A local council must, at all times, have a community action plan under this schedule.

(2) A local council must take such steps to consult with its communities as it considers appropriate or as it may be directed by the Auckland Council to take to ensure that the views of the communities in its area are reflected in the community action plan.

(3) A community action plan must be prepared, consulted on and adopted by the Auckland Council

(a) during the first year after the adoption by the Auckland Council of its long term council community plan under section 93 of the Local Government Act 2002

(b) before the commencement of the first year to which it relates; and

(c in conjunction with the preparation, consultation and adoption of the annual plan by the Auckland Council.

(4) A community action plan continues in force until the close of the third consecutive year to which it relates.

(5) Subject to Clause (3) a local council may amend a community action plan at any time.

(6) A community action plan must cover a period of not less than six consecutive financial years.

(7) Each community action plan shall be consistent with and give effect to so much of the long term council community plan of the Auckland Council as is relevant to the area to which that community action plan relates.

(8) The purpose of a community action plan is to

(a) describe outcomes for the social, cultural, environmental and economic well-being of the communities in the area to which it relates, including how to build social capital and a sense of place within and identification with the community

(b) describe how these outcomes have been identified

(c) describe the specific activities and the programmes and projects comprising them that will, as their main purpose, contribute to these outcomes

(d) describe how the Auckland Council and the local council will contribute to furthering these outcomes.

Schedule 2 – Governance Agreements between the Auckland Council and Local Councils

1. Governance agreements between the Auckland Council and local councils

(1) The relationship between the Auckland Council and each of the local councils shall be the subject of a governance agreement.

(2) The purposes of the governance agreement are to set out how the governance of Auckland will be shared and to ensure effective cooperation, co-ordination and communication between the Auckland Council and each local council.

(3) A governance agreement under this Schedule must make provision for the following matters

(i) The process for determining the powers, functions, and duties to be delegated by the Auckland Council to the local council.

(ii) Ensuring sufficient staff to support the local council and adequate access to specialist staff.

(iii) Monitoring and review of the adequacy of staff support.

(iv) The outcomes to be achieved by the local council in developing and maintaining networks and processes for community engagement and consultation.

(v) Methods for identifying matters other than local matters on which the Auckland Council must consult a local council and the processes and timing for doing so.

(vi) The process by which the Auckland Council will collaborate with the local council in the event of decisions of regional significance being made related to facilities located within the local council area.

(vii) Coordination of the preparation, consultation on, and adoption of the long-term council community plan or annual plan and the community action plans.

(viii) Managing the preparation of district and regional plans as they affect the local council area and the processing and determination of applications for resource consent and plan changes in relation to matters of local significance.

(ix) Resolution of disputes, including disputes between or among local councils.

(x) Protocols for communication with third parties in relation to matters which are the responsibility of either the Auckland Council or the local council.

(xi) Regular monitoring and review of the provisions in the governance agreement.

(xii) Such other matters as the Auckland Council and the local council may agree.

(4) A governance agreement may be amended from time to time.

(5) A governance agreement remains in force until replaced by another agreement.

Schedule 3 – Local Council Functions Regional policy

1. Input into regional policy making

2. Input into district plan making

3. Implementation.

Local operational policies

In carrying out their role, local councils may make local operational policies within the scope of their statutory and delegated functions, such as—

4. Dog control policy (Dog Control Act s10)

5. Gambling and gaming machine policy (Gambling Act s101)

6. Liquor licensing

7. Brothels – control of location and signage (Prostitution Reform Act 2003)

8. District promotion, town centre promotion.

Local service delivery functions

9. Local road construction and maintenance: local roads (i.e. other than arterial), including parking, footpaths, street furniture and trees, naming, stopping, temporary closure

10. Street lighting, policy, location, style, under-grounding priorities

11. Footpaths, cycleways and walkways, locations and priorities

12. Beautification, graffiti removal

13. Public information signage

14. Within MUL: administer district plan, hear and decide resource consents, monitor and enforce, except as called in by Auckland Council

15. Outside MUL: administer district plan, hear and decide resource consents, monitor and enforce, to extent delegated by Auckland Council

16. Building consents processing

17. Environmental health control (including food premises licensing).

18. Animal control, impounding, welfare, including dogs registration, micro chipping

19. Local parks (as defined by Auckland Council) – maintain, develop, allocate space, hire, create new parks, concessions, including making reserves management plans (Reserves Act s41)

20. Recreation centres, local sports facilities

21. Promotion of sport and physical activity

22. Community centres, halls and facilities

23. Entertainment and cultural venues (local)

24. Litter control, bylaw enforcement

25. Road and public place safety

26. Public toilets locations, maintenance and cleaning

27. Beach control (use, cleaning, sand), shoreline development for public use

28. Events promotion (memorials, celebrations, entertainment, fireworks, markets)

29. Camping grounds

30. Crime prevention

31. Leadership and facilitation on social issues

32. Artworks, location, development and approval

33. Minor safety works, set priority of projects

34. Citizens Advice Bureaux

35. Local art galleries and museums

36. Other functions delegated by Auckland Council, for example

• Libraries
• Swimming pools
• Housing
• Cemeteries and crematoria
• Specific local economic development roles
.

Administrative functions

In carrying out their role, local councils must —

37. Monitor and report on their performance in implementing regional policies.

38. Prepare Community Action Plans, which they submit to Auckland Council, implement and monitor.

Community engagement functions

In carrying out their role, local councils must —

39. Identify the needs and preferences of their communities, and articulate these to the Auckland Council, and other public and private sector entities

40. Adopt methods such as consulting, arranging polls, meetings, and surveys to identify community needs and preferences on any matter, and submit findings to Auckland Council

41. Support local charities, sporting, recreational and cultural groups, including where appropriate by grants of money

42. Consider what form of community engagement is appropriate

43. Consider what form of service delivery is appropriate, whether directly, by joint ventures with other councils, through special purpose agencies, CCOs or otherwise.

Schedule 4 – Water Supply and Wastewater Drainage Functions and Assets

1. Water supply and wastewater drainage functions and assets

(1) The Auckland Council shall succeed to the ownership of all the shares in Watercare Services Limited as the successor of the former authorities.

(2) The functions of the former authorities in relation to the supply of water and wastewater services (but not any functions in relation to stormwater services) are hereby transferred to Watercare Services Limited.

(3) The assets and liabilities related to those functions transferred to Watercare Services Limited by subsection (2) of this clause are hereby vested in that company.

(4) The Auckland Council—

(i) Must retain all the issued shares in Watercare Services Limited; and

(ii) Must ensure that Watercare Services Limited does not dispose of its undertaking or any material part or parts thereof which is or are necessary to the conduct of its business; and

(iii) Must, in its capacity as the owner of shares in Watercare Services Limited, act in the best interests of the inhabitants of the Auckland region.

(5) No person who is a member or employee of a local authority or who is an employee of Watercare Services Limited or any associated company may hold office as a director of Watercare Services Limited.

(6) The Auckland Council must at all times have in place a policy in respect of Watercare Services Limited that—

(a) Specifies an objective process to be used by it in selecting persons for appointment as directors of Watercare Services Limited; and

(b) Requires persons appointed as directors of Watercare Services Limited to be both—

(i) Persons who, together, have relevant knowledge and experience of water and wastewater management in New Zealand; and

(ii) Persons who, in the opinion of the Auckland Council, will assist Watercare Services Limited to achieve its principal objective as set out in clause 2(1)(a); and

(c) Specifies the process for determining the terms of office and remuneration of the directors of Watercare Services Limited and the matters to be taken into account in that process; and

(d) Specifies how the Auckland Council will approve—

(i) The statement of corporate intent of Watercare Services Limited; and

(ii) Any major acquisitions by Watercare Services Limited; and

(iii) The distribution of surpluses by Watercare Services Limited to its customers.

(7) For the purposes of subsection (6)(a), the objective process must involve—

(i) The preparation and publication of a job description; and

(ii) An advertised recruitment process.

(8) A policy under subsection (6), and any amendment to it, has no effect until approved by the Minister.

2. Watercare Services Limited

(1) Notwithstanding anything in this Act or any other Act, Watercare Services Limited—

(a) Must manage its business efficiently with a view to maintaining prices for water and wastewater services at the minimum levels consistent with the effective conduct of that business and the maintenance of the long-term integrity of its assets and the promotion of demand management

(b) Must calculate its charges to customers for water and wastewater services on a volumetric basis

(c) May, in accordance with its current statement of intent, fund its business requirements —

(i) By including the cost of its business requirements in its prices and charges for any relevant services; or

(ii) Notwithstanding paragraph (e), by borrowing or by entering into any financial instrument, financial arrangement, or financial transaction of a debt-raising nature; or

(iii) By using any or all of the methods described in subparagraphs (i) and (ii)

(d) Subject to subclause (2), must not pay any dividend or distribute any surplus in any way, directly or indirectly, to the Auckland Council

(e) Subject to subclause (2), must decide promptly in respect of any year in which a surplus arises, whether or not to return that surplus to its customers and, if it is to do so, to determine and implement the method by which that surplus may be returned, whether by way of rebate, discount, price adjustment calculated by reference to prior or future charges to those customers, or otherwise

(f) Is limited to the performance of functions, and the conduct of business, in relation to waterworks, water-supply, sewerage, and the treatment and disposal of sewage and trade wastes, but has authority to exercise—

(i) Such powers ancillary to those functions as were, immediately before the commencement of section 68 of the Local Government Amendment Act 1992, powers that could have been exercised by the Auckland Regional Council in relation to the water services assets; and

(ii) Such powers as it agrees, with the Auckland Council, to perform for the Auckland Council or in conjunction with it

(g) Is entitled to—

(i) Apply the provisions of the Auckland Regional Council Trade Waste Bylaw 1991; and

(ii) Exercise the powers under the Auckland Metropolitan Drainage Act 1960 that relate directly to the water services assets, as if it were and always had been the Auckland Regional Council; and

(iii) Exercise the powers under the North Shore Drainage Act 1963 that relate directly to the water services assets, as if it were and always had been the North Shore Drainage Board

(h) Is not required to comply with clause 9(1)(g) of Schedule 8 to the Local Government Act 2002 but must instead specify the means by which any residual surplus is to be returned to its customers

(i) Is not required to comply with section 68(b) of the Local Government Act 2002

(j) Must, in its financial statements, identify clearly and separately—

(i) The financial position of its waterworks and water-supply activities; and

(ii) The financial position of its activities in relation to sewerage and the collection, treatment, and disposal of sewage and trade wastes

(k) Must ensure that its water and drainage services are costed and priced separately

(l) Must, at least 4 months before the end of each financial year, prepare and supply to the Auckland Council an indicative asset management plan for the next financial year, which asset management plan must describe the projected condition of its significant assets at the commencement of that year and outline the rationale for and nature, extent, and estimated costs of its proposed activities in respect of —

(i) The maintenance and repair of existing assets; and

(ii) The renewal of existing assets; and

(iii) The upgrading or extension of the performance or capacity of existing assets; and

(iv) The acquisition or construction of new assets

(m) Must, at least 4 months before the end of each financial year, prepare and supply to the Auckland Council, after undertaking a comparative assessment of different funding options, an indicative funding plan for the next financial year, which funding plan must identify for the next financial year the nature and scope of the activities proposed to be undertaken (including, but not limited to, operational requirements, renewals, and significant new projects), and its planned funding requirements and funding sources, showing —

(i) How the prices and charges proposed in the plan have been calculated

(ii) A summary of the results of the comparative assessment of different funding options

(iii) An appropriate debt to equity ratio (iv) How any surplus from the previous financial year is proposed to be applied, or any deficit from the previous financial year is proposed to be managed

(n) Must, in preparing its draft statement of intent under section 64 of the Local Government Act 2002,—

(i) Consider any written submissions made by the Auckland Council on the asset management plan prepared under paragraph (l) or the funding plan prepared under paragraph (m) within 40 working days of the supply of that plan; and

(ii) Include in that draft statement of intent a summary of its proposals in respect of the matters dealt with in the plans referred to in subparagraph (i)

(o) Must include in the statement of intent its decisions in respect of the matters dealt with in the plans referred to in paragraph (n)(i)

(p) Must give written notice to the Auckland Council of any proposed modifications of its then current statement of intent and consider comments on the proposed modifications made by the Auckland Council.

(2) Nothing in subsection (1)(d) or (e) —

(a) Limits the right of the Auckland Council to participate as a customer in any surplus returned to customers pursuant to subsection (1)(e)

(b) Prevents Watercare Services Limited from making a taxable bonus issue (as defined in section YA 1 of the Income Tax Act 2007).

(3) Watercare Services Limited is deemed to be a local authority for the purposes of Parts 1 to 6 and Part 8 of the Local Government Official Information and Meetings Act 1987.

(4) Parts 1 to 6 and Part 8 of the Local Government Official Information and Meetings Act 1987 apply, for the purposes of subsection (3), with all necessary modifications and as if —

(a) Every reference to a local authority were a reference to Watercare Services Limited; and

(b) Every reference to a member of a local authority were a reference to a director of Watercare Services Limited; and

(c) Every reference to the principal administrative officer of a local authority were a reference to the chief executive of Watercare Services Limited.

(5) Notwithstanding section 62 of the Local Government Act 2002, the Auckland Council may give a guarantee, indemnity, or security in respect of the performance of any obligation by Watercare Services Limited.

Schedule 5 – Services performance auditor

1. Appointment of services performance auditor

(1) The appointment of a services performance auditor by the Auckland Council must be on the joint recommendation of the Chairperson of the Commerce Commission and the Auditor-General.

(2) The services performance auditor shall maintain an office which is funded by the Auckland Council but which is located in premises separate from any other office operated by the Auckland Council.

(3) The services performance auditor may not be appointed for a term of more than 3 years.

(4) The Auckland Council and the services performance auditor must enter into a performance agreement.

(5) Despite the provisions of any other enactment or rule of law, the services performance auditor has no right or expectation of renewed employment at the end of any term.

(6) The first appointment of a services performance auditor by the Auckland Council shall not be before 10 November 2011 but must occur before 1 June 2012.

2. Review and re-appointment of services performance auditor

(1) When the term of appointment expires, a vacancy exists in the office of the services performance auditor, and that vacancy must be advertised.

(2) Despite subclause (1), if the Auckland Council has completed a review under subclause (3) and the Chairperson of the Commerce Commission and the Auditor-General have recommended the re-appointment of the incumbent services performance auditor, then the Auckland Council shall, without advertising the vacancy, appoint the incumbent services performance auditor for a second term not exceeding 3 years on the expiry of the first term of appointment.

(3) The Auckland Council must, not less than 6 months before the date on which the service performance auditor’s contract of employment for the first term expires, conduct and complete a review of the employment of the services performance auditor and forward a complete report of that review to the Chairperson of the Commerce Commission and the Auditor-General.

(4) The review under subclause (3) must assess—

(a) the performance of the services performance auditor; and

(b) the mix of skills and attributes possessed by the services performance auditor, and the degree to which they are consistent with the skills and attributes that the Auckland Council considers necessary for the future; and

(c) any other factors that the Auckland Council considers relevant.

(5) To avoid doubt, responsibility for determining the degree to which any factors in subclauses (4)(a) and (b) apply to a review, and the relevance of any additional factors under subclause (4)(c), rests solely with the Auckland Council.

(6) Subclause (3) does not apply if the incumbent services performance auditor declares in writing to the Auckland Council that he or she does not wish to be considered for appointment to a second term.

(7) Except for subclause (1), the provisions of this clause do not apply during the second term of the services performance auditor.

3. Role of services performance auditor

(1) Subject to subclause (2), the services performance auditor is responsible to the Auckland Council for —

(a) overseeing and reviewing the quality and cost effectiveness of services delivered by the Auckland Council and its council-controlled organisations; and

(b) ensuring that any monopoly provision of services such as water and wastewater services and regional public transport services by the Auckland Council or any of its council controlled organisations are managed and provided

(i) efficiently and effectively; and

(ii) in accordance with any legislative requirement or any policy or plan of the Auckland Council; and

(iii) so as to achieve any service standards or other targets as set out in any relevant statement of intent; and

(iv) in accordance with any appropriate industry benchmark or international best practice; and

(c) undertaking or commissioning independent analysis and investigation as appears to him or her to be necessary or desirable in respect of any service performance audit; and

(d) advising the chief executive on methods for ensuring the effective and efficient management of the activities of the Auckland Council and any of its council controlled organisations; and

(e) assisting the chief executive in developing best value reviews of the operations of the Auckland Council to secure continuous improvement in the exercise of its functions having regard to a combination of economy, efficiency and effectiveness.

(2) The functions of the service performance auditor do not include dealing with individual complaints or grievances about the Auckland Council.

(3) The services performance auditor may—

(a) require the Auckland Council or any member or officer to disclose to him or her such information as the service performance auditor may request in order to carry out his or her functions; and

(b) report publicly on any issue affecting the Auckland Council at any time.

Schedule 6 – Part 1 – Local Authorities dissolved and districts abolished

Local Authorities	Districts
The Auckland Regional Council	Auckland Region
The Auckland City Council	Auckland City
The Rodney District Council	Rodney District
The Waitakere City Council	Waitakere City
The North Shore City Council	North Shore City
The Manukau City Council	Manukau City
The Papakura District Council	Papakura District
The Franklin District Council	Franklin District

Part 2 – Communities abolished and community boards dissolved

Albany	Maungakiekie
Birkenhead-Northcote	Mt Roskill
Devonport	Tamaki
East Coast Bays	Western Bays
Glenfield	Botany
Takapuna	Clevedon
Henderson	Howick
Massey	Mangere
New Lynn	Manurewa
Waitakere	Otara
Avondale	Pakuranga
Eastern Bays	Papatoetoe
Eden-Albert	Waiuku-Awhitu
Hobson	Onewhero-Tuakau

Schedule 7 – Consequential amendments

Local Government Act 2002 (2002 No 84)

Repeal clause 6(1) of Schedule 7 to the Act and substitute:

“6 Remuneration Authority to determine remuneration

(1) The Remuneration Authority must determine the remuneration, allowances, and expenses payable to—

(a) mayors, deputy mayors, chairpersons, deputy chairpersons, and members of local authorities:

(b) chairpersons of committees of local authorities;

(c) chairpersons, deputy chairpersons and members of Auckland’s local councils;

(d) chairpersons of committees of Auckland’s local councils;

(e) chairpersons and members of community boards;

(f) chairpersons of committees of community boards.”

Schedule 8 – Enactments repealed

Local Government Act 1974 (1974 No 66)

Sections 707ZZZR and 707ZZZS

Local Government Act 2002 (2002 No 84)

Section 6(4)(g)

1 The relevant statutory provisions are in Schedule 3 to the Local Government Act 2002, and in particular sub-part 4 which deals with the union, constitution and abolition of districts and regions and the creation of unitary authorities.

2 The provisions in Schedule 7 to the Local Government Act 2002 which stand in the way of the suggested reforms to mayoral powers include clause 17 – election of deputy mayor by the council clause 18 – removal of deputy mayor by the council clause 25 – process for election of deputy mayor and chairs of committees clause 30 – power to appoint committees; and clause 31 – membership of committees.

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