This week in Parliament an amendment to the Local Government Official Information and Meetings Act 1987 (LGOIMA) was introduced, which proposes several changes to the requirements for Land Information Memorandum (LIM).

In this FYI we discuss the proposed key changes and their potential impact.

The key points

The Bill proposes amendments which pick up on the actions recommended in Aotearoa New Zealand’s first National Adaptation Plan, which was published in August 2022 under the Climate Change Response Act 2002. It proposes several changes to LIM requirements to ensure that better-informed decisions about natural hazard risks can be made, including for prospective purchasers of property.

LIMs are the main source of property information available to the public, and at present, there is a degree of uncertainty as to what natural hazard content should be (or is already) required for disclosure under section 44A of LGOIMA. The amendments proposed by the Bill seek to clarify what natural hazard information is required on a LIM, and add a specific purpose, to guide the provision of natural hazard information.

The key objective of these amendments is to ensure that LIMs provide better, consistent and easily understood information that will lead to people being able to make more informed decisions when it comes to natural hazard risks, including impacts of climate change. This will have the flow-on effect of improving long-term community well-being and assisting to reduce local government liability in future hazard events.

The Bill also takes the opportunity to propose changes to the LGOIMA to provide better alignment with the Official Information Act 1982’s protection of NZ’s security and international relations, including additional information, withholding grounds and certification processes.

Summary of proposed changes for LIMs

• A new requirement to provide a wider range of natural hazard information in a LIM, including the impacts of climate change that may exacerbate natural hazards.

• Information must be provided about:
  • each hazard or impact,
  • each potential hazard or impact - if there is a reasonable possibility it will affect the land now or in the future, and
  • cumulative or combined effects of the hazard or impact on the land concerned.

• A definition of ‘natural hazard’ will be included in section 2, which cross-references the definition in the Resource Management Act 1991 (although we note that this may need to capture the list of examples of a ‘special feature or characteristic’ that currently appears in section 44A(2)(a) of the LGOIMA).

• New provision for regulations to be developed that will set out and clarify how natural hazard information is to be summarised and presented in LIMs. This is potentially a very helpful change for local authorities, but it will be critical to ensure that any regulations are clear.

• A new statutory responsibility for regional councils to provide natural hazard and climate change information to territorial authorities, for inclusion in LIMs.

• Protection against legal liability when information is made available in good faith for both territorial and regional authorities.

What are the impacts of these changes?

Costs

The disclosure statement on the Bill anticipates a low-medium cost for local authorities in terms of implementing the changes to their LIMs and associated processes. For territorial / unitary authorities, this will likely involve further demands on staff, although the additional cost can potentially be recovered by increasing LIM fees. Regional councils will not be able to recover increased costs in this way.

Protection against liability

The proposed new limitation on liability does not extend to the range of other information that a territorial authority must provide in a LIM, although it does extend to information about other special features and the likely presence of hazardous contaminants. It also does not clarify whether there is any liability relating to discretionary information provided by a Council under section 44A(3), which may be an issue of concern / interest to local government.

Continued application of existing case law?

It is not clear whether the current case law[1] concerning the interpretation of section 44A(2)(a) will remain applicable to natural hazard information, or whether the proposed new section 44B will be treated as the more specific provision for natural hazard information. The newly proposed provision (section 44B) includes the words “known to the territorial authority”, but other wording changes, including the reference to “reasonable possiblility” and “potential” hazard or impact may limit the application of existing case law.

Another subtle difference is the change from “identify each (if any) special feature of the land concerned” to include “information about each hazard or impact that affects the land concerned”. There is a difference between identifying a hazard, and providing information about it, the latter of which can be taken to require more information that explains the hazard or impact (or potential hazard / impact).

Viewed against the proposed new purpose in section 44B(1) - which is to ensure that LIMs contain “understandable information”, the stated intentions of the National Adaptation Plan, and the framing of the objectives of the Natural and Built Environments Bill, the consistent theme is that local authorities will need to gather and provide improved hazard information to their communities, and also act in a more responsive manner to such risks.

Given the extensive, and prescribed, natural hazard information that is proposed to be required in a LIM by new section 44B, it may be unlikely that section 44A(3) - which deals with the provision of other information ‘as the authority considers, at its discretion, to be relevant’ - will come into play for natural hazard information. This could, however, be clarified further.

Submissions on the Bill

A date for submissions should be announced soon. Our experts are available to answer queries or assist with the preparation of submissions.

Special thanks to Chris Ryan for his assistance in preparing this article.

[1]      Including Weir v Kapiti Coast District Council [2013] NZHC 3522, Henry v Auckland Council [2015] NZHC 435, and Monticello Holdings Ltd v Selwyn District Council [2015] NZHC 1674.