Meeting of the Hawke's Bay Regional Council
Date: Wednesday 25 March 2020
Time: 11.00am
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Venue: |
Council Chamber Hawke's Bay Regional Council 159 Dalton Street NAPIER |
Agenda
Item Subject Page
Decision Items
17. Delegations to the Chief Executive during the COVID-19 pandemic 3
18. TANK Notification Delay Options 9
19. Amended Statement of Proposal for Penalty Rates Remission 13
Wednesday 25 March 2020
Subject: Delegations to the Chief Executive during the COVID-19 pandemic
Reason for Report
1. To propose that Council makes delegations to the Chief Executive to ensure that urgent decisions can be made, in specified situations, where it is impractical or impossible for Council to meet during the COVID-19 pandemic.
2. The Local Government Act 2002 (clauses 23 and 25A of Schedule 7) requires that only Councillors who are physically present at a meeting can be counted towards a quorum. Accordingly, the Council cannot rely on audio-visual meetings (for Council or committee meetings) to make decisions. Given that in-person meetings will, from midnight on 25 March 2020, be prohibited, the Council will not, without appropriate delegations, be able to make any decisions that are required to be taken at a meeting.
3. There are certain functions of the Council that must continue during the pandemic. The Council must be able to respond promptly and making these delegations will enable responsive decision making.
Background/Discussion
4. The World Health Organisation (WHO) has declared a world-wide novel coronavirus (COVID-19) pandemic. The New Zealand Government has responded with a range of measures, including:
4.1. the 21 March 2020 announcement of an alert system
4.2. the declaration on 23 March of the country moving immediately to “Alert 3” status, and
4.3. a move from 11.59pm on 25 March, to “Alert 4” status.
5. The Local Government Act 2002 requires that Councillors must meet in person in order to be counted towards a quorum for a meeting, which has been confirmed by the Council’s external lawyers, Simpson Grierson.
6. At the Council meeting on 18 March 2020, a decision was agreed that temporarily, for the period 18 March through to 24 June 2020, the quorum for the Environment & Integrated Catchments Committee, Corporate & Strategic Committee, Hearings Committee, the Finance, Audit & Risk Sub-committee and the CDEM Group Joint Committee to be two members physically present.
7. Given the Government’s restrictions on in-person meetings (resulting from the Alert 4 status) there are now additional complications with convening Council or any committees of Council to meet and to transact any business.
8. There has been no confirmation to date when the Government intends to make amendments to the Local Government Act 2002 to relax the rules on quora, although correspondence from the Minister of Local Government that the issue is being worked on.
9. Given the nature of COVID-19, there is also a possibility that there are urgent matters requiring decision.
10. This would mean that urgent decisions in key areas could not be progressed. We recommend that, to be prudent, delegations to the Chief Executive are made to ensure that required decisions can continue in certain situations.
11. The proposed delegations are set out with the supporting rationale explained below.
12. It is envisaged that these delegations would be used only as a contingency and only for the purposes of decision-making during the COVID-19 pandemic, and for so long as meetings are prevented. Otherwise, Council’s decision-making processes (as appropriate to the situation) will continue to apply.
13. This approach is consistent with that being taken by other local authorities and the resolutions are modelled on those being adopted by Greater Wellington Regional Council and Environment Canterbury. Staff understand that similar resolutions are currently being considered for adoption by other councils.
Proposed Scope
14. The proposed scope of the delegations covers:
14.1. Delegating to the Chief Executive (or Group Manager delegate) all of Council’s powers, duties and responsibilities, except for those that Council cannot legally delegate. This scope enables the fullest ambit of action by the Chief Executive (or Group Manager delegate), while retaining the appropriate legislative parameters; and
14.2. Authorising the Chief Executive (or Group Manager delegate) to approve expenditure, approve the foregoing of revenue, or to take any other steps not provided for in the Long Term Plan or Annual Plan. This scope focuses on unplanned and unexpected situations directly related to the response to the COVID-19 pandemic.
Conditions on the delegations
15. To ensure appropriate safeguards, the proposed resolution also includes a range of conditions, namely:
15.1. An urgent decision is required in specified situations
15.2. It is impractical or impossible for an Emergency or Extraordinary meeting of the Council to be convened to make the decision
15.3. The Chief Executive will obtain prior endorsement of the decision from the Chair, followed by the Deputy Chair, Chair of the Corporate and Strategic Committee and the Chair of the Finance, Audit and Risk Committee in descending order if the prior councillor is unwell or unable to be contacted, and
15.4. The exercise of the delegations will be reported promptly to all Councillors and the representatives from the Maori and Regional Planning committees on the Council.
16. The delegations are also limited to certain situations, namely to:
16.1. Enable the discharge of the Council’s health and safety duties – this is of particular importance and relevance during the COVID-19 pandemic. Such decisions would include actions to protect employees and contractors
16.2. Implement the range of measures (acting under the relevant COVID-19 alert level) directed or issued as guidance by the Government, relevant Ministers, or agencies. This ensures that any decisions are aligned with, and support, the official government position, and
16.3. Respond to any issues that arise as a result of the prevailing COVID-19 alert level or any other urgent matter.
17. As the proposed delegations are significant, it is appropriate that the Chief Executive engages with relevant Councillors before making a decision. However, the condition of urgency also envisages that it is impractical to seek the endorsement of a wider group of Councillors (e.g. a decision is needed within a few hours).
18. Staff therefore propose that the Chief Executive consults with and seeks the approval of the Chair prior to exercising the delegations (or, if the Chair is not available, then the Deputy Chair).
19. Staff have considered whether the delegations should lapse after a certain period or at a certain date. However, the only way that the delegations could be re-made or re-instated if that date passed would be to have a meeting of the Council – which is currently not feasible – accordingly, we have proposed that the delegations continue until meetings can be held again. By definition the delegations only relate to the COVID-19 pandemic and so are time limited to the response to this issue.
Reporting
20. It is important and appropriate that Council decision-making remains transparent.
21. Given the significant scope of the matters covered by the proposed delegation, and that not all Councillors are involved in related decision-making, continued transparency is important. We recommend that the Chief Executive report the exercise of the delegation and the decision to:
21.1. All Councillors and the representatives from the Māori and Regional Planning committees on the Council, as soon as practicable
21.2. Council, at the first available meeting.
22. We also recommend that the Chief Executive report the exercise of the delegation and the decision by a regular update on the Council’s external website (although noting that some matters would not be disclosed on the same basis as some decisions of Council would be taken in a public-excluded meeting, in accordance with the Local Government Official Information and Meetings Act 1987).
Contingency
23. If the Chief Executive were himself unwell or was no longer in his role, then he will be required to appoint an Acting Chief Executive and the delegations would remain in place for that person – that is, the delegations are to the role and not to the individual.
24. If the Chair were unwell, then the resolution requires that the Chief Executive obtains approval from the Deputy Chair, followed by the Chair of the Corporate and Strategic Committee and the Chair of the Finance, Audit and Risk Sub-committee in descending order if the prior councillor is unwell.
Financial and resource Implication, compliance and communication
25. There are no specific financial implications arising from the matter for decision. Any financial implications of decisions made under the delegation will be addressed as part of that decision-making process.
Risk assessment and legal compliance
26. This proposal allows the Council to respond quickly to risks as they arise. It is consistent with the statutory framework that the Council operates within.
Significance and engagement
27. Staff consider that the matter is of low significance due to its procedural nature.
Next steps
28. Once adopted, the delegations will take effect immediately.
Decision Making Process
29. Council and its committees are required to make every decision in accordance with the requirements of the Local Government Act 2002 (the Act). Staff have assessed the requirements in relation to this item and have concluded:
29.1. The decision does not significantly alter the service provision or affect a strategic asset.
29.2. The use of the special consultative procedure is not prescribed by legislation.
29.3. The decision is not significant under the criteria contained in Council’s adopted Significance and Engagement Policy.
29.4. The persons affected by this decision are ratepayers and those members of the community or council staff who may require a decision covered by this delegation.
29.5. The decision is not inconsistent with an existing policy or plan.
29.6. Given the nature and significance of the issue to be considered and decided, and also the persons likely to be affected by, or have an interest in the decisions made, Council can exercise its discretion and make a decision without consulting directly with the community or others having an interest in the decision.
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That the Council: 1. Agrees that the decisions to be made are not significant under the criteria contained in Council’s adopted Significance and Engagement Policy, and that Council can exercise its discretion under Sections 79(1)(a) and 82(3) of the Local Government Act 2002 and make decisions on this issue without conferring directly with the community and persons likely to be affected by or to have an interest in the decision. 2. Notes that the Council considers it is prudent for Council to authorise the Chief Executive or Group Manager delegate (while the Government’s alert levels make meetings of Council impossible) to make urgent decisions in specified situations. 3. Makes delegations to the Chief Executive (or Group Manager delegate), which include appropriate conditions as set out in this paper, to make urgent decisions during the COVID-19 pandemic and while the Government’s alert levels make meetings of Council impossible.
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Authored by:
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Joanne Lawrence Group Manager Office of the Chief Executive and Chair |
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Approved by:
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James Palmer Chief Executive |
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Delegation to Chief Executive for Decision-making during COVID-19 pandemic |
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Delegation to Chief Executive for Decision-making during COVID-19 pandemic |
Attachment 1 |
Delegation to Chief Executive for Decision-making during COVID-19 pandemic
1. With immediate effect and until the Government reduces the alert level status, allowing meetings (including meetings of Council), the Council:
1.1 Delegates to the Chief Executive all of the Council’s powers, duties and responsibilities, except for those powers, duties and responsibilities that the Council is not legally able to delegate.
1.2 Authorises the Chief Executive to approve expenditure, to approve the foregoing of revenue, or to take any other steps not provided for in the Long Term Plan or Annual Plan, that are necessary for Greater Wellington Regional Council to maintain Metlink public transport services and/or to maintain necessary business continuity within Greater Wellington Regional Council.
2. The exercise of this delegation is subject to the following conditions:
2.1 An urgent decision is required to:
2.1.1 Enable the discharge of the Council’s health and safety duties – this is of particular importance and relevance during the COVID-19 pandemic. Such decisions would include actions to protect employees and contractors;
2.1.2 Implement the range of measures (acting under the relevant COVID-19 alert level) directed or issued as guidance by the Government, relevant Ministers, or agencies. This ensures that any decisions are aligned with, and support, the official government position; or
2.1.3 Respond to any issues that arise as a result of the prevailing COVID-19 alert level or any other urgent matter.
2.2 Prior to exercising this delegation, the Chief Executive must obtain the endorsement to the proposed decision from two Chairs in the following order of precedence:
2.2.1 Council Chair
2.2.2 Council Deputy Chair
2.2.3 Performance Audit & Risk Committee Chair
2.2.4 Any Committee Chair.
2.3 The exercise of the delegation and the decision must be reported by the Chief Executive to Councillors as soon as practicable and reported to the first available Council meeting.
Wednesday 25 March 2020
Subject: TANK Notification Delay Options
Reason for Report
1. This item provides the Council with an opportunity to consider whether the notification of the Proposed TANK Plan Change should change given national management to contain the spread of Covid-19.
Officers’ Recommendation(s)
2. Council officers recommend that Council considers either:
2.1. Notification of the TANK plan change as planned on 28 March, but estend the submission period to 30 July 2020, or
2.2. Delay notification until 2 May, with at least 45 days (9 weeks) for submissions, or as otherwise directed at that time.
Background /Discussion
3. The RPC and Regional Council resolved to notify the Proposed TANK Plan Change 9 on 28 March. The Plan was to be notified on 28 March for a period of 42 working days (to the end of May).
4. Since then, national direction to manage the spread of Covid-19 has rapidly intensified with a high level of impact on people’s everyday lives. This will likely materially impact how people interact and the level and quality of the engagement during this notification process.
5. The wider community is understandably entirely distracted by the impact of the Covid-19 controls. People’s way of life is undergoing a huge upheaval and there it is difficult to judge how the future will look – even as little as four weeks ahead.
6. If the Plan Change is to be notified this weekend as proposed then we can expect interest and involvement in the Plan Change process to be limited, at least during the next few weeks.
7. There are several challenges to notifying on 28 March.
7.1. Public reaction: At the moment, the news is only about Covid-19. A Plan Change will appear to many people to be either minor in comparison, or of lower priority compared to business continuity, jobs and family needs. Notifying in these circumstances may seem to be disregarding the severe impact of Covid-19 on the community.
7.2. Non-contact engagement: The communication plan has been amended to use non-contact engagement measures, including virtual meetings and social media. It will affect the ability of people to debate plan provisions and enable them to prepare fully informed submissions. A two month submission period was previously suggested to enable this to occur. However, stakeholders are not likely to pay much attention at least for the first month.
7.3. Other issues: The community is also coping with the effects of severe drought and animal TB disease control. While of a more familiar nature, these issues serve to compound the stresses on the farming community at this time.
8. Given the above pressures, and the focus of key stakeholders such as central government agencies, Local Authorities, water users and iwi, notification now carries a high risk of negative reaction for a significant plan change.
9. However, there has been considerable investment into getting PC9 to this point. The Proposed Plan will enable progress towards meeting management objectives for the TANK catchment freshwater and estuary waterbodies to commence.
10. The government has also indicated it will continue with its planned work programme for Essential Freshwater with new national direction still being expected for delivery this year. We have received the following advice.
10.1. “Minister Parker has given us strong assurance that he believes as a country we need to halt further decline in freshwater quality, and that restoring freshwater ecosystem health continues to be a critical element of the Government’s long-term strategy. He intends to deliver the Essential Freshwater package to the current mid-year timetable.”
11. Some aspects of the Plan will have immediate legal effect from the date of notification – this is especially in relation to new activities that are now subject to new rules. The commencement of some rules is linked to the notification date. This includes applications for abstraction of water. The new policies and rule will also affect any new applications to continue existing water takes, which will continue to need processing. For other provisions, the operative date (which is after all submissions and appeals have been heard and decided) determines when actions need to have been completed, such as the requirements for farm plans.
12. A delay in notification continues the uncertainties and consequential impact on business investments and land value currently surrounding water abstraction in particular but also in relation to management of contaminant losses from land use activities.
13. The submission process enables stakeholder and iwi to contribute to the development and refinement of the proposed plan change. This engagement is essential to the development of an effective Plan.
14. The Act requires at least a 20 working days submission period as a minimum (no maximum is specified). Note that the RMA does allow the Council to change the submission period (to extend it by another 20 working days) once a plan is notified. The Council may also withdraw a notified plan change.
15. As noted above, it is predicted that the stakeholders will not be (able to be) engaged effectively for the first month at the very least. Thereafter, levels of engagement will depend on how management of Covid-19 is progressing.
16. If the Proposed Plan Change is to be notified it will require an engagement approach that recognises the current circumstances where full engagement is going to be limited – at least for the initial weeks.
17. Any communication around notification and submissions should include acknowledgement that the Council will take into account the situation relating to Covid-management when making decisions about extending the timeframe a further 20 working days.
Options
18. The following options and their costs and benefits have been identified.
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Option |
Benefits |
Costs |
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1. No change Notify 28 March End submissions 30 May |
Confirms previous decision, enables progress on improvement to freshwater. Option to extend submission period still available if necessary. |
Degree of engagement in submission process likely to be impacted (quality and quantity of input likely to be lower). There may be negative reaction to notification. Does not adequately reflect pressure of Covid-19 on stakeholders to be engaged in the process. |
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2. Extend Submission period Allow longer term (to end of July) |
Acknowledges impact of Covid-19 management on people and communities. Protects investment already made in preparing the proposed TANK Plan Change. Allows for development of effective non-contact consultation approaches with stakeholders. Option to extend submission period still available if necessary. |
Lengthens plan change process (but only by some months). Assumes staff can resource and support this process during the Covid-19 national emergency. |
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3. Delay notification Notification at later date (provisionally 2 May) and similar 9 week submission period (or as otherwise directed at that time) |
Enables council and community to focus on Covid-19 and other issues. Allows Council to revisit the decision prior to the proposed new notification date to account for the circumstances at the time of the April Council meeting. |
Extends uncertainty around land and water use. May be impacted by national policy timeframe. Does not enable improved freshwater management to commence. |
19. Option 3 is recommended. It properly reflects the seriousness of the Covid-19 crisis, while also enabling the Council to undertake its freshwater management functions in the TANK catchments. A deferral of the notification date along with a communication plan assures stakeholders that the Council is sensitive to current community pressures while also providing certainty for land and water users.
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That Hawke’s Bay Regional Council: 1. Receives and considers the “TANK Notification Delay Options” staff report. 2. Delays notification of TANK Plan Change 9 to 2 May 2020, for a submission period of at least 9 weeks.
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Authored by:
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Ceri Edmonds Manager Policy and Planning |
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Approved by:
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Tom Skerman Group Manager Strategic Planning |
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Wednesday 25 March 2020
Subject: Amended Statement of Proposal for Penalty Rates Remission
Reason for Report
1. This item provides councillors with an amended Statement of Proposal for the Remission of Penalties on Rates Policy (Fixed Term) to reflect changes to the submission process due to the current situation.
Discussion
2. The key changes to the submission process are:
2.1. Submissions will now primarily be done online. This will be through a wufoo form on the website and through email.
2.2. The initial plan was to have hardcopies available at HBRC offices. Since this is no longer an option, and because staff still want to give those without access to a computer an opportunity to have a say, we plan to make a staff resource available to take / record submissions via telephone.
2.3. The hearings process will be streamlined by linking it to a Council meeting.
2.4. Initially it was proposed to hold a hearing on 19 May, with a Panel to be appointed by the Hearings Committee. With the Covid-19 situation currently, it is now proposed that the Submission Hearings follow the Council meeting on 27 May 2020, with a panel of 3 appointed councillors.
2.5. Some submitters may choose to speak to their submissions via video conference, dependent on the Covid-19 situation at the time and feasibility of technology, to enable the Policy to be adopted on 24 June 2020.
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That Hawke’s Bay Regional Council: 1. Adopts the proposed revised Statement of Proposal for Remission of Penalties on Rates Policy (Fixed Term) for consultation that reflects changes to the submission process due to the Covid-19 response situation. 2. Agrees that staff may make further changes to the submission process if required by the Covid-19 response. 3. Appoints a Hearing Panel comprised of councillors ______________, _____________ and _______________ to hear the submissions.
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Authored by: Approved by:
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Mandy Sharpe Project Manager |
Tom Skerman Group Manager Strategic Planning |
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Amended Draft Statement of Proposal |
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