Max Pakinga-Barber

The Local Government (Management of Local Authorities) Amendment Bill (“Bill”) is a Members Bill under the name of Stuart Smith MP, introduced to Parliament on 21 May 2026. The Bill seeks to clarify the allocation of decision-making power within local authorities under the Local Government Act 2002 (“LGA”).

Governance of local authorities

The everyday functions of local government (things associated with the “local council” like water, roads, and rubbish) are formally carried out by local authorities established under the LGA. Local authorities include both territorial authorities (city and district councils) and regional councils. They are corporate entities that can own property, enter contracts, and employ staff. They continue even as individual councillors and staff change.

Decisions of the local authority are made by its governing body, also commonly (and confusingly) referred to as "the council" or "the full council". The governing body occupies a similar position as the board of a company. Its decisions, made by majority vote, are legally the decisions of the local authority.

Given the range of functions local authorities carry out, the governing body frequently delegates its powers to committees, subcommittees, and officials. Most powers can be delegated, with some notable exceptions including making bylaws and setting long-term and annual plans. In practice, implementation of those higher-level decisions are carried out by officials.

The LGA also provides for the appointment of a chief executive who is responsible to the local authority for a range of operational functions. The chief executive typically employs subordinate staff without direct input from the governing body. Similar to a company board, the governing body usually exercises high-level oversight and policy-making, while day-to-day decision-making sits with officials appointed by the chief executive.

Policy issue

The purpose of the Bill is to align the governance and management of local authorities with those of the corporate and not-for-profit sectors. It is intended to provide elected members with a greater mandate to effectively govern and control the activities of local authorities and thereby minimize increasing tensions between councillors and management of local authorities.

Franks Ogilvie have seen this tension increasingly playout in practice. The Bill appears to be directed at the increasing tendency of local authority officials to assert that some decisions are “operational” and thereby within the exclusive remit of the chief executive (and not subject to governing body direction).  This assertion is problematic for obvious reasons. If any decision is legally off-limits for the governing body, it is immune from democratic oversight and contrary to the purpose of the LGA. Any exceptions to the principle that the governing body has full decision-making oversight should be express.

While local authority members are democratically elected by the public, there are otherwise clear similarities between the corporate structure of private companies and that of local authorities. Both are corporate entities in which formal decision-making power rests with a governance board, but where most day-to-day functions are delegated to employees and agents.  

However, the LGA governance provisions are far less clear than those in the Companies Act. The latter requires the activities of the company to take place under the supervision of the board and confers on the board all the powers necessary for that purpose. While the board can delegate, it remains ultimately responsible for the exercise of powers by company agents and employees.

The LGA does not expressly affirm this principle. It says that the governing body remains “responsible and democratically accountable” for the local authority’s decisions, and it confirms as a matter of procedure that local authority decisions are made by majority vote in governing body meetings. But it confers no express powers on the governing body, nor does it directly define the relationship of the governing body and the chief executive. These matters are left to implication.

The ambiguity provides an environment where officials can tenably claim that operational decisions are off-limits, with what is operational having little clear definition. Most often, this plays out in practice as officials obstructing the access of governing body members to information (or forcing them to seek it under the Local Government Official Information and Meetings Act 1987). In others, it is used as a means of refusal to follow policy directives from the governing body. For example, the recent refusal of Wellington City Council officials to bring cleaning services in-house as directed by the governing body on the basis that it was a commercial procurement decision and therefore fell within the operational sphere.

To be clear, the LGA does not recognize a legal distinction between governance and operational distinctions. At most, it recognizes that governing body members should not involve themselves in employment decisions (other than appointment of the chief executive), and even that is left to implication.

Because of resource imbalances, it is far from guaranteed that this matter will ever reach court for determination.  Legislative clarity is therefore essential to setout who can do what within local authorities and minimize the potential for future disputes and obstruction.

What the Bill does

The Bill takes steps to address this ambiguity by aligning local authority governance more closely with the corporate and not-for-profit sectors. It is intended to provide elected members with a clearer mandate to govern and oversee the activities of local authorities.

The principal amendment is new s 41B, which is broadly modelled on s 128 of the Companies Act. Section 41B confirms that while the activities of a local authority must be "managed" by the chief executive, that management is subject to the direction and supervision of the governing body. Subject to any statutory limits, the governing body has all the powers necessary to carry out that supervisory role.

A separate amendment to s 42 confirms that the chief executive retains exclusive responsibility for employment decisions. Another amendment clarifies that nothing in the LGA prevents a local authority from seeking advice from a person other than the chief executive, providing some statutory support for independent advice to elected members.

The Bill is similar to a recommendation made by Franks Ogilvie in its submission on the Local Government (Systems Improvements)Amendment Bill (link), currently before the Committee of the Whole House. While the latter Bill does not directly address governance, it addresses other matters that are conceptually related such as the right of elected councillors to information. Under Parliamentary Standing Orders, it would be possible for the Bill to be added to the System Improvements Bill as an amendment paper, although whether that occurs is a political question.

Whether the Bill will fully resolve tensions between elected members and officials remains to be seen. Some of the problems undoubtedly arise from the management culture prevailing among public service professionals and cannot be directly fixed by legislation. But the new provisions should provide a clear counterargument to the claim that any element of local authority activity (other than employing staff) is beyond the governing body's oversight.

Next steps

The Bill is yet to have its First Reading. If it passes, it will proceed to Select Committee, where the public is likely to be able to make submissions.

For further information on this or similar issues please contact Director Brigitte Morten

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Summary

The High Court upheld a consenting panel’s decision to decline resource consent for a large-scale housing development, based on special character zoning rules.

Background

In 2021, Parliament amended the Resource Management Act 1991 (“RMA”). The amendments required certain local councils to include medium density residential standards (“MDRS”) and urban intensification objectives and policies in their district plans. While the MDRS changes initially had bipartisan support, the Coalition Government that took office in 2023 promised to reverse the changes on the basis that they were an interference with local democratic decision-making.

The MDRS and intensification objectives were implemented through district plans, but were (largely) mandatory statutory requirements. Councils were only excused from implementing them if they could establish that one or more ‘qualifying matters’ (defined in the RMA) applied in a particular area.

The Auckland Council notified a plan change (“PC78”) implementing the MDRS and intensification objectives on 18 August 2022.

Around the same time, Box Property Investments Ltd (“BPIL”) applied for an RMA resource consent under the COVID-19 Recovery (Fast-track Consenting) Act 2020 (“FTCA”) for a large scale residential development to be constructed in East Auckland. The development site fell within the single-residential housing zone (“SHZ”) under the operative district plan. SHZ objectives and policies were strongly focused on preserving neighbourhood character and limiting intensive residential development.

During BPIL’s application, PC78 was not in effect at the development site, which remained governed by the SHZ. However, because PC78 was a proposed plan, the consent authority was required to have regard to it (as well as to the SHZ) under the FTCA.

When the Panel determined BPIL’s application, the key issue for determination was whether to give preference to operative SHZ rules or to the proposed PC78 – or, in other words, whether to give weight to special character protections or urban intensification imperatives. The Panel ultimately chose the former. It determined that BPIL’s intensive development would be fundamentally out of step with SHZ character preservation policies, and declined the consent.

BPIL appealed the Panel’s decision to the High Court, alleging seven errors of law.

The case

First ground – Irrelevant considerations

When assessing the weight to be given to PC78, the Panel had regard to policy announcements made by the Government, including proposed law reforms that would have made the MDRS optional. BPIL contended that these proposed law reforms were irrelevant, and that the Panel had erred in law in considering them.

The court agreed, emphasising the importance of the principle that Parliament can only speak to the courts through legislation. While the executive branch of government (represented by Cabinet) may have ultimate control over the legislative programme, it could not provide any assurance about future legislation that the courts could act on. The clear effect of the famous Fitzgerald v Muldoon decision was that no person or body was recognised by law as having the right to set aside the legislation of Parliament other than Parliament itself. Citizens must always have access to the courts to have their rights and interests determined according to the law applicable at the time.

However, because the Panel’s erroneous consideration of announced law reforms had not materially influenced their assessment of the status of PC78, the court dismissed this ground of appeal.

Ground 2 – Natural justice

During the hearing, the Panel commissioned an independent consultancy to peer review reports provided to it by BPIL. The Panel refused BPIL an opportunity to respond to the consultants’ report. BPIL alleged the refusal was a breach of its natural justice rights.

The court disagreed. The FTCA’s express purpose was to streamline RMA consent applications, and to this end the Panel had been given wide powers to regulate its own procedure. It was these powers that it had relied on to commission the report. If the court required the Panel to allow applicants to respond to every adverse factual finding, it would derail the streamlined procedure and undermine the purpose of the FTCA.

Grounds 3 – 5 – Status of PC78

BPIL’s third, fourth, and fifth grounds rested on the assertion that the Panel had not correctly recognised the status of PC78 relative to the SHZ rules in the operative plan. Because adoption of the MDRS was largely mandatory, BPIL argued, it was not enough for the Panel to consider PC78 – it should have been a dominant consideration for the Panel. The Panel had erred in law by giving undue weight to the SHZ.

The court held that each of these grounds were effectively attempts to challenge the merits of the Panel’s decision framed as legal errors. The Panel had clearly considered PC78, as they were legally required to. Beyond this, it was for the Panel to determine the respective weight given to the SHZ and PC78. This was a matter that could not be disturbed on an error of law appeal.

Ground 6 – Misinterpretation of SHZ

In its sixth ground, BPIL argued that the Panel had misinterpreted the SHZ. It based this argument on the Panel’s conclusion that the development was inconsistent with the SHZ. The court found that this was effectively another challenge to the merits of the decision, and dismissed the appeal on this ground.

Ground 7 – Part 2 of the RMA

BPIL’s final ground of appeal alleged that the Panel had erroneously concluded that the SHZ was consistent with Part 2 of the RMA. The court held that it was not for the Panel to determine whether SHZ was consistent with Part 2 – rather, its role was to determine the consent application in accordance with the RMA and the FTCA. It had done so, and accordingly this ground of appeal failed.

Result

The court dismissed the appeal on all grounds, effectively halting BPIL’s proposed development.

The court’s decision provides a welcome affirmation of the principle of Parliamentary sovereignty, confirming that law-makers must apply the law as it stands at the time, rather than what Crown Ministers or others say it is likely to be following in future law reforms.

Shortly before the court’s decision, the Resource Management (Consenting and Other System Changes) Amendment Bill reported back from Select Committee. The Bill, which received the Royal assent on 19 August 2025, allows Auckland Council to withdraw PC78, but requires the Council to provide for levels of urban development comparable to those in PC78 if they choose to do so.

On 24 September 2025, the Council’s Policy and Planning Committee voted to reject PC78, and to endorse PC120, a plan change allowing for a similar level of intensive development. The Committee meeting saw passionate and emotive appeals from councillors in favour of preserving the special character of inner city suburbs. However, the final vote did not reflect this, with PC120 being carried by 18 votes for to 5 against.

Submissions on PC120 are open until 19 December 2025.

For further information on this or similar cases please contact Director Brigitte Morten

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Summary

In a landmark decision, the Broadcasting Standards Authority found its jurisdiction to enforce broadcasting standards extended to content transmitted via the internet.

Background

The Platform NZ Ltd regularly streamed an internet livestream which involved commentary on topical political issues. In a segment of the programme in July 2025, programme host Sean Plunket made comments about tikanga. An individual complained to The Platform under the Broadcasting Act 1989 (“Act”) alleging that the statement was racist. The Platform dismissed the complaint on the basis that it was not subject to the Act because it was not a broadcaster.

The complainant subsequently referred the complaint to the Broadcasting Standards Authority (“BSA”). In a provisional decision, the BSA held that The Platform was a broadcaster, and that it therefore had jurisdiction to determine whether the statement complied with broadcasting standards under the Act (which include requirements for good taste and decency, and political balance).

In submissions, The Platform disputed that it was a broadcaster subject to the Act. It was joined by interested party Reality Check Radio (“RCR”)

On 31 March 2026, the BSA issued its final decision on jurisdiction. It concluded that The Platform was a ‘broadcaster’ and it therefore had jurisdiction to determine the complaint. It has yet to determine the complaint as to whether the statement breached broadcasting standards.

The case

The definition of ‘broadcaster’ in the Act is defined by reference to the separate definition of ‘broadcasting’. Broadcasting means “any transmission of programmes, whether or not encrypted by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus”. However, transmissions of programmes on the demand of a particular person for reception only by that person are excluded from the definition (“On-Demand Exception”)

Are internet transmissions an “other means of telecommunication”

‍The BSA held that internet transmissions were clearly a form of ‘telecommunication’ based on dictionary meanings of the term, as well as usage in other legislation. The key issue was whether it was an ‘other means of telecommunication’ for the purposes of the Act.  

In submissions, The Platform and RCR argued that Parliament intended to limit broadcasting to traditional radio and television transmission. It argued that the Act was made in 1989 before the internet existed, and that the standards were relics of a bygone era where programme standards were the corollary of state licensure of the radio/television spectrum. The Act, they submitted, was not technology neutral and could not be read to extend to the internet without adopting an artificial and impractical interpretation of the legislation.

The BSA disagreed. The purpose of the Act did not relate to licensing of the radio/television spectrum. Instead, it determined (erroneously) that the purpose of the Act was to “maintain programme standards for the New Zealand public". This interpretation required a broad and generous approach to determining the meaning of ‘broadcasting’. The fact that the internet post-dated the Act was not a hindrance, with the BSA relying on the interpretation principle that legislation applies to circumstances as they arise.

Accordingly, transmission of content via the internet would be subject to the Act (including the BSA's jurisdiction in respect of programme standards), unless an exception applied.

On-Demand Exception

The Platform and RCR both argued that the On-Demand Exception applied because its internet content inherently required active user engagement – users needed to seek out and click on the content, rather than passively receiving it by activating a receiving apparatus (as would be sufficient with television and radio broadcasts). Both disputed the BSA’s view that traditional broadcasts were functionally equivalent to internet livestreams. They argued the Act could not be read as technology neutral, and that technological differences meant that radio/television broadcasts were conceptually distinct from transmissions via the internet.

The BSA acknowledged that the scope of the On-Demand Exception was unclear. It relied on tangential comments by the Royal Commission preceding the Act, as well as a definition from the Copyright Act 1994, to hold that the exception was narrow. It only applied where there was a "subscription element", which implied that a user could be assumed to have a foreknowledge and choice about the nature of the content to be consumed. It dismissed the extensive technological distinctions argued by The Platform and RCR as “technical arguments” which were inconsistent with the BSA’s broad conception of the purpose of the Act.

Relevance of freedom of expression

The Platform argued that a broad definition of 'broadcasting' that extended to the internet was an unjustifiable limit on the right to freedom of expression guaranteed by the New Zealand Bill of Rights Act 1990 ("NZBORA"), in that it would subject a large swathe of new content to what was essentially a state censorship power. Section 6 of the NZBORA requires that wherever legislation can be given a NZBORA consistent interpretation, it must be given that meaning.

The BSA dismissed the relevance of the NZBORA, holding that the meaning of 'broadcasting' was so clear that a rights-consistent interpretation could not apply. It went on to state that, if this conclusion was incorrect, the broad purpose of the Act (which it had erroneously concluded was "the maintenance of programme standards in New Zealand") was inherently to limit expression on the internet. Any such limitation was therefore deemed by Parliament to be reasonably justified.

Practical impacts

If the BSA’s interpretation was applied according to its terms, it would extend application of the Act to every person transmitting content via the internet. This meant not only application of broadcasting standards, but also requirements to file annual returns and, for broadcasters with revenue over $500,000 per year, to pay broadcasting levies. These requirements are mandatory under the Act.

Conscious of this, the BSA sought to confine its broad principle only to services like The Platform – namely those that stream in linear form (ie: continuously) content readily accessible via the internet and that are companies holding themselves out as media outlets and deriving revenue from their operations (including advertising). It purported to exclude from its jurisdiction individuals sharing content online 'ad hoc', content delivered by streaming services like Netflix, Disney+, and Youtube, and overseas entities streaming content in New Zealand. The statutory basis for this distinction was not made clear in its decision and will need to be further developed in subsequent complaints.

Result

The BSA concluded that The Platform was a broadcaster and therefore that it had jurisdiction to hear the complaint.

The practical ramifications of the decision are problematic. While the BSA purported to confine the decision to entities like The Platform, statutory rules are of general application. The reasoning in the decision supports a broad approach to the definition of 'broadcasting' (and a narrow approach to the On-Demand Exception) that potentially subjects broad swathes of internet content creators to the BSA's de-facto censorship powers.

For further information, please contact Director Brigitte Morten

Franks Ogilvie represents The Platform in the BSA proceedings.