Land Information Memoranda reports just got even trickier
Land Information Memoranda reports just got even trickier
Tuesday 6 December, 2022
An amendment to the provisions for Land Information Memoranda (LIMs) had been anticipated that would help territorial authorities to navigate the tricky waters of deciding whether to release sometimes speculative information on the effects of climate change on coastal development.
However, in a ‘damned if you do, damned if you don’t' scenario, territorial authorities have had to decide whether to release or withhold such information as they have on hand about the effect of climate change on vulnerable coastal properties. While releasing such information risks unnecessarily blighting property values, failing to include known risks to buildings and land, may result in landowners whose properties are damaged seeking recourse from Council.
To make matters worse, the expert advice about hazards held by territorial authorities at any given point in time is often tentative or may be preliminary in nature. In other instances, it may have been commissioned by regional councils, which are not required to provide LIMs, and released to territorial authorities subject to various constraints on its use such that the question of whether such information can be said to be “known to the territorial authority” is itself at issue.
Legislation to clarify the responsibilities of a territorial authority in relation to these ambiguous circumstances would have been welcomed with open arms.
Instead, we have in the Local Government Official Information and Meetings Amendment Bill (2022 No 202-1), which significantly amends and widens the scope of the information to be provided in a LIM. The Bill proposes to amend the Local Government Official Information and Meetings Act 1987 (“LGOIMA”) to introduce:
Clearer requirements to provide natural hazard information in a LIM (including the impacts of climate change).
- A statutory responsibility for regional councils to provide natural hazard information (including about the impacts of climate change) and support to territorial authorities
- A specific purpose for providing natural hazard information
- Provisions to develop regulations for providing natural hazard in LIM
- Limitation of legal liability for local authorities when disclosing natural hazard information in good faith
The Bill amends section 44ALand Information memorandum of LGOIMA by replacing section 44A(2)(a), which identifies the special features or characteristics of land that must be included in a LIM, by a new provision identifying natural hazard information that must be included. Instead of being required to provide information about special features or characteristics of land known to the territorial authority, the requirement will be to ensure that “understandable information” about “natural hazards” and the “impacts of climate change that exacerbate natural hazards” are included in LIMs. The term “natural hazard” is defined as having the meaning set out in the Resource Management Act 1991:
“Natural hazard means any atmospheric or earth or water related occurrence (including earthquake, tsunami, erosion, volcanic and geothermal activity, landslip, subsidence, sedimentation, wind, drought, fire, or flooding) the action of which adversely affects or may adversely affect human life, property, or other aspects of the environment”
This is a somewhat more inclusive definition than the list of special features currently listed in LGOIMA for inclusion in a LIM. Although the definition omits reference to the likely presence of hazardous contaminants, there will be a separate subclause requiring the inclusion of information about the likely presence of such elements.
A new section 44B extends the nature of the information to be provided. Instead of just providing information identifying the hazard, territorial authorities will have to provide information, “about each potential hazard or impact, to the extent that the authority is satisfied that there is a reasonable possibility that the hazard or impact may affect the land concerned (whether now or in the future)”. They will also have to provide information about “the cumulative or combined effects of those hazards or impacts on the land concerned” and any further information that may be required by regulation to make the information more understandable. This requires a degree of assessment or judgement not required under LGOIMA at present. The form in which the information must be provided will be able to be specified by regulation, which is also likely to impact on the current practice of territorial authorities.
In support of these requirements there will be a new duty on regional councils to provide territorial authorities with information about each hazard or impact affecting land in the region, including potential hazards and impacts, and the cumulative or combined effects of those hazards or impacts. This is a significant new responsibility for regional councils.
In return for these extended responsibilities both territorial authorities and regional councils gain protection in civil or criminal proceedings for making information available in good faith, although this does not appear to extend to information about the likely presence of hazardous contaminants.
Notwithstanding the introduction of a limited protection against liability, the Bill appears to increase the workloads for both territorial authorities and regional councils. Whereas territorial authorities have largely treated the production of LIMs as an administrative task, a higher level of technical and profession judgement will likely be required to meet the enhanced requirements for information under the Bill if it becomes law.
The Bill has been referred to the Governance and Administration Committee, but no submissions date is yet available.