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Legal Requirements of Waste Management planning
Introduction
Territorial local authorities (TLAs) have a legal obligation under the Local Government Act 2002 to promote effective and efficient waste management within their district. This promotion should involve the development of a waste management plan. The Ministry is also asking councils to adopt the New Zealand Waste Strategy as a basis for their waste planning and actions.
This information:
- outlines the legal obligations on local authorities with respect to waste management as set out in the Local Government Acts of 1974 and 2002, and then
- considers the interface between the Local Government Acts and with the Waste Strategy.
What are TLAs required to do for waste management planning?
What must a waste management plan address?
How does a waste management plan affect a TLA's powers to carry out waste management activities?
- Power to undertake or contract waste management activities
- Power to operate or contract for waste management facilities
- Power to make by-laws
- Power to levy fees and charges by by-law
- Power to make grants
What authority is there to recover costs?
What process must TLAs follow in adopting a plan?
When must the Waste Management Plan be adopted?
Regional Council responsibilities
What are TLAs required to do for waste management planning?
TLAs are required to:
- prepare waste management plans and hold the principal responsibility for implementing waste policies in their local communities.
- promote effective and efficient waste management within their district.
Notes:- Part 31 (section 539 of the 1974 Act) makes the adoption of a waste management plan mandatory.
- Part 31 also sets priorities for the plan and provides various powers to administer or contract waste management activities and operations.
- Part 31 was left intact following the enactment of the 2002 Act.
- have regard to the environmental and economic costs and benefits to their district and must ensure the management of waste does not cause a nuisance or become injurious to health (Part 31 of the 1974 Act, section 538).
What must a waste management plan address?
As specified by the 1996 amendments to the 1974 Act, a waste management plan must incorporate the following hierarchy of disposal options, listed from most desirable to least desirable:
- reduction
- reuse
- recycling
- recovery
- treatment
- residual disposal.
Each of these terms is defined under section 537 of the 1974 Act. When developing a waste management plan, TLAs are first required to consider each of the disposal options, and then ensure the plan makes provision for them.
A waste management plan should be designed to ensure that it can be effectively and efficiently implemented, by either the TLA, or by any contractor the TLA engages to undertake an activity under the plan (section 539).
The plan must also reflect the duty of promoting effective and efficient waste management as set out in section 538 of the 1974 Act.
The plan should also address the other matters raised in Part 31 of the 1974 Act, including:
- the promotion of waste minimisation education (section 540)
- the provision of waste disposal facilities (section 541)
- the collection and transportation of waste (section 541)
- any waste management grants (section 543)
- and the allocation of costs (section 544).
The plan could also note any by-laws which will be or have been created.
How does a waste management plan affect a TLA's powers to carry out waste management activities?
Sections 540 to 543 of the 1974 Act set out provisions governing a TLA's powers in respect of waste management. These powers can be exercised independently of a waste management plan but once a waste management plan is adopted, the TLA must exercise the powers in accordance with that plan (the exception being by-laws).
Power to undertake or contract waste management activities
Section 540 of the 1974 Act empowers a TLA to undertake or contract for any activity it considers appropriate for efficient and effective waste management. The section lists a number of activities which may be appropriate for a district's waste management. This list is broad and includes provision for:
- collection, reduction, reuse, recycling, recovery, treatment or disposal of waste
- the provision of waste disposal facilities
- the promotion of waste minimisation education.
Notes:
- Most waste management related activities are likely to be covered by this list but it is not exclusive. Councils retain a general power under section 540 (and section 12 of the 2002 Act) to undertake or contract for any appropriate activity.
- The collection and disposal of waste must be to the satisfaction of the relevant Medical Officer of Health (section 540A of the 1974 Act).
Power to operate or contract for waste management facilities
Section 541 of the 1974 Act provides specific authority to provide and operate works and facilities for any aspect of waste management. It also authorises the collection and transportation of waste. This section overlaps with section 540, in that the TLA may contract out the powers under this provision.
Section 541 enables waste management works or facilities to be carried out in or beyond the district for the benefit of the TLA or others.
The activities under section 541 can be contracted out or undertaken by council.
With the enactment of the 2002 Act this is also covered by the general power under section 12 of that Act. Under these sections TLAs and regional councils can share planning and physical resources and facilities. This is an approach the Waste Strategy seeks to encourage.
Power to make by-laws
Section 542 of the 1974 Act sets out a specific by-law-making power for waste management, covering:
- prohibiting or regulating the deposit of waste
- regulating the collection and transportation of waste
- the mode of disposal of dead animals
- the charges to be paid for use of facilities
- regulating public access to those facilities
- prohibiting the removal of waste intended for recycling
- the licensing of persons who collect or transport waste (for more information, see Power to levy fees and charges by by-law).
Unlike the other powers, there is no requirement that by-laws be exercised consistently with a waste management plan. As a form of regulation, a by-law is legally binding and if inconsistent with a waste management plan, will override it.
Best practice would suggest that with the adoption of a plan any relevant by-laws be amended to reflect the plan. Councils should also consider whether their waste management by-laws are necessary. Many of the by-law powers will double up on likely plan provisions, and may no longer be needed once a plan is in place.
Examples of by-laws that may double up with a waste management plan include those restricting access to waste management facilities or which fix charges. However, those by-laws that establish offences (eg by-laws prohibiting the dumping of waste) will still be needed to enable enforcement action to be taken.
We recommend the plan and by-law provisions operate in an integrated manner and that the plan record how by-laws fit the District's waste management policies. By-laws must also be specific and can not include the wider policy aspirations which a plan may include.
Process for creating a by-law
The process for creating a by-law is a special consultative procedure, as set out in Part 8 of the 2002 Act. There are very limited exceptions for when this process need not be followed, set out in section 156 of that Act, including:
- editorial changes
- amendments of minor effect.
Note:
Section 146 of the 2002 Act also provides a specific power to create
by-laws to regulate waste management.
Power to levy fees and charges by by-law
Section 542 of the 1974 Act provides a specific power to impose charges by by-law for the use of facilities owned or operated by the TLA, and for the licensing of waste management operators. These fees are limited by section 150 of the 2002 Act to reasonable cost recovery.
Section 150 of the 2002 Act sets out how fees or charges may be prescribed by by-law. Under section 150 of the 2002 Act, fees can not go beyond the reasonable cost recovery for the matter involved. Consistent with this limitation, section 151 of the 2002 Act states that a by-law may provide for the:
- licensing of persons or property
- payment of reasonable licence fees and the
- recovery of costs incurred by the local authority in relation to an activity licensed under a by-law.
The only authority for incentive/disincentive levies for waste management comes from section 544 of the 1974 Act , and this is limited to the allocation of the costs incurred in implementing the waste management plan. These levies are only available if a waste management plan has been created and is being implemented.
Power to make grants
Under section 543 of the 1974 Act, the TLA may make grants of money to any organisation, group or persons for the purposes of promotion or assistance of a reduction, reuse, recycling, recovery treatment or disposal of waste. This power can only be exercised if a waste management plan has been adopted.
What authority is there to recover costs?
Section 544 of the 1974 Act provides for the TLA to allocate the costs incurred in implementing a waste management plan in a manner it considers will effectively and appropriately promote the objectives of the plan. If provided for in the plan, costs can be incurred in a way that creates economic incentives and disincentives that promote the objectives of the plan.
Note:
The power to allocate costs only applies where a plan has been adopted,
and the power must be exercised in accordance with the plan.
Where any marketable product is the result of any waste management activity the TLA may sell that product and retain any proceeds of that sale. This power exists regardless of a plan but we recommend any plan address this point.
Charges for the use of council-run facilities can be made by by-law. As noted above, this will likely be unnecessary once a plan is operational. For a discussion on the levying of licensees by general by-law power, see The power to make by-laws.
What process must TLAs follow in adopting a plan?
The process for creating a waste management plan is a special consultative procedure as set out in the 2002 Act. With this special consultative procedure a local authority must give notice of a particular proposal, allow time for submissions, and consider submissions made prior to making a decision (sections 83 and 84 of the 2002 Act).
The consultation provisions of the 2002 Act (sections 82 to 90) must be followed in developing a waste management plan under the special consultative procedure.
When must the Waste Management Plan be adopted?
While the 1974 Act made waste management plans mandatory, it did not set a deadline for adopting a plan. The 2002 Act however requires that any TLAs who have not yet done so must adopt a waste management plan by 30 June 2005 at the latest.
How does this process integrate with the long-term council community plan (LTCCP) process?
A TLA's long-term council community plan must include a summary of the district's waste management plan (Schedule 10 of the 2002 Act). There are two exceptions to this requirement.
Firstly, a summary is not required if the waste management plan is included in the LTCCP (Schedule 10 of the 2002 Act). Councils can adopt a waste management plan as part of the LTCCP. This would enable efficient use of resources, including having only one public process of consultation under the special consultative procedure.
If considering this option, Councils should bear in mind that the deadline for waste management plans is 30 June 2005 and is earlier than that for the LTCCP. The LTCCP must be adopted for a period beginning 1 July 2006 (section 280 of the 2002 Act). Whether Council can streamline the process in this way will depend on the progress of both plans.
Secondly, under the transitional provisions of the 2002 Act, TLAs may choose to adopt an LTCCP for either a period beginning 1 July 2003 or a period beginning 1 July 2004 (section 279). An LTCCP prepared under this provision is exempted from the requirement to include a summary of the waste management plan if at that time no such plan has been adopted.
The waste management plan deadline of 30 June 2005 is unaffected by any of the LTCCP deadlines.
Regional Council responsibilities
There is at present no statutory role for Regional Councils under local government legislation. However a waste management role is consistent with the broad functions of regional councils including those which relate to the discharge of contaminants, hazardous waste, protection of coastal and water environments and its general obligation to achieve integrated management of the natural and physical resources of the region.
There are clear benefits in regional coordination, but this may not necessarily involve a formal role for regional councils. For more information, see Why are some areas in New Zealand are adopting a regional approach to waste management?
