Relevant Legislation

over 2 years ago

The Council is able to make and amend bylaws concerning water supply and trade wastes under section 146 of the LGA 2002.

Section 160 of the LGA 2002 requires that the Council must review a bylaw by making the determinations required by section 155.

Section 155(1) of the LGA 2002 requires, before commencing the process for making or amending a bylaw, a determination as to whether a bylaw is the most appropriate way of addressing the perceived problem. Section 155(2) of the LGA 2002 states that, if it is determined that a bylaw is the most appropriate way of addressing the perceived problem, it must be determined, before making the bylaw, whether the proposed bylaw is the most appropriate form of bylaw. Section 155(3) of the LGA 2002 requires that no bylaw may be made which is inconsistent with the New Zealand Bill of Rights Act 1990, notwithstanding section 5 of that Act.

In addition, when a Council makes or amends a bylaw, it needs to take into account the general law that applies to bylaws as set out in the Bylaws Act 1910. There are four general requirements for a valid bylaw. These are: an Act of Parliament must empower the Council to make the bylaw (authority); the bylaw must not be repugnant to the general laws of New Zealand (repugnancy); the bylaw must be certain (certainty); and the bylaw must be reasonable (reasonableness).

Although a bylaw cannot be inconsistent with existing statutory provisions, provided it remains within the scope of the statutory power authorising the Council to make a bylaw, it can bring together in one document a range of powers, duties, and prohibitions that are otherwise scattered throughout various statutes.

A bylaw can provide residents with easy access to a comprehensive account of their duties and the Council with a cost effective enforcement mechanism to deal with the large number of complaints it receives as a result of a nuisance on private land.

In addition, every decision of a local authority must be made in accordance within the provisions of sections 77, 78, 79, 80, 81 and 82 of the LGA 2002. Section 77 requires the Council to identify all reasonably practicable options for the achievement of the objective of a decision, and to assess those options by considering a number of matters set out in section 77(1)(b). These matters include: the costs and benefits of each option in terms of the present and future interests of the district; and the extent to which each option would promote or achieve community outcomes in an integrated and efficient manner; and the impact of each option on the Council’s capacity to meet present and future needs in relation to any statutory responsibility; and any other matters, that in the opinion of the Council are relevant.

Section 78 sets out the requirement to consider the views and preferences of persons likely to be affected by, or to have an interest in, a matter. Section 79 whilst giving the Council discretion about how best to achieve compliance with sections 77 and 78 requires the Council to consider the significance of all relevant matters, including those set out in section 14 of the Act.

Consultation has concluded - Report being prepared for Council consideration.