by: Philip Maw - National Managing Partner
Local government is facing an increasing number of significant policy changes that need to be implemented. Some of these changes will have substantial impacts on parts of the diverse communities that counselors and committee members represent. One question more prevalent than ever is how to best assist people in governance roles to make these decisions on behalf of their constituents, while still ensuring compliance with their statutory duties.
The Essential Freshwater reforms introduced in August 2020 is one such example of these difficult decisions, with regional councils grappling with exactly how and when they will implement them. These reforms - while seeking to improve environmental outcomes for the benefit of all - will likely have significant economic and social effects on many rural constituents. In addition, other policy changes and areas of reform may have a significant cost attached, in the form of infrastructure spend. For members that feel they have been elected (or appointed to a committee) based on their representation of a particular sector, making decisions that inevitably conflict with those of their constituents presents a dilemma, even when such decisions are required by law.
One way in which this difficult tension might be approached is through the use of a spectrum. Members need to envisage a spectrum on which their decision can be placed. Is the decision to do the minimum required to achieve compliance with the law (which could be termed as "reactive" leadership), or one which is aspirational and seeks to anticipate the direction future reform is heading (which could be termed "transformational" leadership"). Or would a more "intermediate" option along the spectrum prove more palatable?
There is no right or wrong answer to this question, as all steps of the spectrum involve compliance with the law. What is still up to be determined by the decision-makers is whether they wish to make decisions that require a policy shift over and above what is strictly required by the particular instrument or legislation in question.
What is appropriate for the particular decision-making body is a matter to be determined at the time. For some decisions, councils may seek to keep their regulations or decisions as close to the status quo as possible, even if this may require further plan changes or amendments to policies in the near future. A council may still decide that this is the most appropriate decision for it to make at this point in time, perhaps as the first step in signalling to its constituents the direction of policy change. This may be particularly so if the status quo has been in place for a long time, or the policy change would negatively impact a large proportion of the community.
For other decisions (relevant for both district and regional plans), councils may choose to create planning documents that are somewhat "future-proofed", anticipating few changes in the medium to long term given it is intended to capture the direction of travel in respect of future policy changes. While these decisions may involve some short-medium term pain (for example in the freshwater space, increasing regulatory and compliance costs for farmers over and above what is strictly required), it provides a clear signal to the community of the future regulations and expectations for environmental management. In some ways, this may assist those constituents most affected in the short-medium term, as they are provided with a transparent direction of travel, and not given "false hope" by simply reacting to national policy changes when they occur.
A more central approach could well be more popular. Councils might choose to develop planning documents that largely reflect the minimum standards of regulatory compliance, but with the addition of one or two priorities that signal future change and an element of future-proofing in respect of these priorities issues.
The spectrum can be thought of as a journey, with every decision-making body at a different point along this journey. While some may aim for transformational leadership, some may be content to work on building the resilience of their communities moving a step at a time small towards the anticipated future direction of regulations. Each decision and each decision-maker will be at a different place on the spectrum, but it is helpful to understand the ultimate outcome that all parties intend to achieve before getting into the detail of specific provisions or policies.
We are delighted to announce property and commercial law specialist, Jenna Adamson, has joined the Wynn Williams partnership. Based in Tāhuna Queenstown, Jenna adds further experience to the firm's property and commercial capability within the South Island.
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