Crown Law advice, former horticultural sites, 14 December 2004
Crown Law Advice to the Ministry for the Environment - Potential Contamination by Horticultural Soils
I refer to your letter dated 1 December 2004 requesting advice on the following two matters: 1.1 Whether a council is required to place a notice on a LIM in accordance with s 44A(2) of the Local Government Official Information and Meetings Act 1987 advising that land has been used for horticultural purposes if one of the consequences of the use might be soil contamination; and 1.2 Whether, if the council has placed a notice on a LIM, the council can remove that notice from the LIM.
You later added a further query: Are there other satisfactory mechanisms to make public information on past broadscale land use other than through a LIM?
Summary of advice
Section 44A(2) of the Local Government Official Information and Meetings Act (LGOIMA) provides a mandatory requirement to include information on a land information memorandum (LIM) in certain circumstances, including the likely presence of hazardous contaminants. Just because land had been used for horticulture does not mean there is a likely presence of hazardous contaminants. A council is, therefore, not required to place a notice on a LIM under s 44A(2) of LGOIMA.
Under s 44A(3) a territorial authority may include other information concerning the land that the territorial authority, at its discretion, considers relevant. Again this does not require the inclusion of information - it is discretionary.
If information has been included correctly under s 44A(2) then it cannot be removed, but if the information is included under s 44A(3) then the territorial authority could also exercise its discretion to remove that information.
There are other mechanisms available to provide the public with information about land. This includes the district plan, release of official information under LGOIMA and general publication. Release of information about matters affecting land is not restricted to a LIM.
Auckland City Council has received two reports relating to contaminant levels of soils in certain parts of the city. You have provided us with copies of these. The first report, received in 2002, came from Auckland Regional Council. This report, based on tests of horticultural sites in the Auckland region, found that some former horticultural sites have contaminant levels elevated above guideline levels. The second report, received in 2004, was produced by Pattle Delmore Partners. This report, based on tests of council parks and reserves identified as being on former horticultural land, found isolated areas of pesticide residue. These isolated areas of pesticide residue were found on fewer than one third of the sites tested. The sites were not picked at random and specifically included areas known as sites for chemical storage.
As a result, Auckland City Council has declared that it will include notices on the LIMs of up to 5000 properties indicating that the land was, to the best of the council's knowledge, previously used for horticultural purposes. The notices are to specify that council has no knowledge of whether the property is or is not contaminated as a result of such use. They will refer to the soil reports. The notices set out that the council may require soil testing if subdivision, new activities, or an extension of exiting activities is proposed.
Auckland City Council claims that its actions are in accordance with the Ministry for the Environment Guideline No. 4 on disclosure under a LIM. A copy of this Guideline has also been provided.
There have been claims about the reduction in the values of properties and inability to sell houses as a result of the council's announcement. Your queries have arisen from this situation.
Section 44A of the LGOIMA provides:
Land Information Memorandum
A person may apply to a territorial authority for the issue, within 10 working days, of a land information memorandum in relation to matters affecting any land in the district of the authority.
The matters which shall be included in that memorandum are –
Information identifying each (if any) special feature or characteristic of the land concerned, including but not limited to potential erosion, avulsion, falling debris, subsidence, slippage, alluvion, or inundation, or likely presence of hazardous contaminants, being a feature or characteristic that -
Is known to the territorial authority; but
Is not apparent from the district scheme under the Town and Country Planning Act 1977 or a district plan under the Resource Management Act 1991:
Information on private and public stormwater and sewerage drains as shown in the territorial authority's records:
Information relating to any rates owing in relation to the land:
Information concerning any consent, certificate, notice, order, or requisition affecting the land or any building on the land previously issued by the territorial authority (whether under the Building Act 1991) or any other Act):
Information concerning any certificate issued by a building certifier pursuant to the Building Act 1991:
Information relating to the use to which that land may be put and conditions relating to that use:
Information which, in terms of any other Act, has been notified to the territorial authority by any statutory organisation having the powers to classify land or buildings for any purpose:
Any information which has been notified to the territorial authority by any network utility operator pursuant to the Building Act 1991.
In addition to the information provided for under subsection (2) of this section, a territorial authority may provide in the memorandum such other information concerning the land as the authority considers, at its discretion, to be relevant.
An application for a land information memorandum shall be in writing and shall be accompanied by any charge fixed by the territorial authority in relation thereto.
In the absence of proof to the contrary, a land information memorandum shall be sufficient evidence of the correctness, as at the date of its issue, of any information included in it pursuant to subsection (2) of this section.
Notwithstanding anything to the contrary in this Act, there shall be no grounds for the territorial authority to withhold information specified in terms of subsection (2) of this section or to refuse to provide a land information memorandum where this has been requested.
Section 44A was added to the LGOIMA by the Local Government Official Information and Meetings Amendment Act (No. 2) 1991. The amendment was part of the Building Bill 1991 and was split from that Bill before the third reading in Parliament. The provisions were grouped together at the initial stages because of a parallel focus: the Building Act 1991 introduced the project information memorandum while the Local Government Official Information and Meetings Amendment Act (No. 2) 1991 introduced the land information memorandum. It was added to Part 6 of the LGOIMA dealing with "Miscellaneous Provisions Relating to Access to Official Information". Not a great deal of assistance can, therefore, be obtained by considering s 44A in the context of the balance of the Act.
Section 44A sets out two ways information can be included in a LIM. Under s 44A(2) the inclusion of certain information on the LIM is mandatory. Pursuant to s 44A(2)(a) information which identifies a "special feature or characteristic" of the land, including:
"... potential erosion, avulsion, falling debris, subsidence, slippage, alluvion, or inundation or likely presence of hazardous contaminants..."
must be included on the LIM if that information is known to the council and is not apparent from the district plan. Information provided from other sources (particularly in relation to the Building Act) or that should be known to the council (such as rates or drains) also has to be included. Section 44A(6) provides that this information covered by subsection (2) must not be withheld. There are no grounds to refuse provision of the information.
Alternatively, information may be included on a LIM pursuant to s 44A(3), which allows councils the discretion to provide any other information concerning the land that it considers to be relevant. Section 44A(6) does not apply to any other information that the territorial authority may consider relevant. The information, however, is held by a local authority so it can be requested. The reasons for withholding information as set out in ss 6 and 7 of the LGOIMA would apply, as well as the principle of availability.
As set out above, s 44A(2) requires the inclusion of any information on "... potential erosion ... or inundation or likely presence of hazardous contaminants...". Accepting that the chemicals said to have been used on former horticultural sites are probably hazardous contaminants, the key word here is likely. For s 44A(2)(a) to be triggered, the presence of hazardous contaminants must be 'likely', whereas erosion, inundation and other specified features or characteristics need only be 'potential' risks to trigger the section. The threshold requirement in relation to hazardous contaminants is different than that relating to other sSpecial features or characteristics, and, in my opinion, is a higher standard. It is noted that none of the other paragraphs of (2) impose a standard at all. They concern information that is known.
In the case Port Nelson Limited v Commerce Commission  3 NZLR 554, 562-63 the Court of Appeal discussed what degree of probability the term 'likely' contemplated and said:
"The appropriate level is that above mere possibility but not so high as more likely than not and is best described as a real and substantial risk that the stated consequences will happen. That is a construction adopted in a different context in Colonial Mutual Life Assurance Society Limited and Wilson Neill Limited  2 NZLR 152, 161 and one well known in the criminal law: R v Harney  2 NZLR 576, 581."
The term "potential" indicates the possibility of something occurring but the risk or chance of it occurring is not as certain as "likely". It is a possibility rather than a probability.
The two reports referred to above do not appear to provide a basis for concluding that there is a real and substantial risk that hazardous contaminants are present on any particular property in question. According to your letter, the Auckland Regional Council report found that "some" sites had elevated levels of contaminants. The Pattle Delamore Partners report found isolated areas of residue on less than a third of sites tested. Neither report related to specific residential properties.
The presence of hazardous contaminants on any particular piece of land among the 5000 properties in question can, therefore, properly be regarded as a mere possibility. In the case of a previous horticultural use of the land where there is no evidence that the property, or any part of it, is or is not contaminated as a result, the test of a real and substantial risk of contamination is not met. Thus, such information does not fall under s 44A(2)(a). It is not a mandatory inclusion on a LIM.
The inclusion of information about previous horticultural use and possible resulting soil contamination may fall under s 44A(3) and is at the council's discretion whether to include the information or not. The council has two discretions. The first is that it has a discretion over whether the information is relevant or not and the second is that, even if relevant, it can decide whether to include it on the LIM or not. As the council is not required to provide such information on a LIM, it may therefore exercise its discretion and remove such information from a LIM. This does not, however, mean that the information is not otherwise available (see below).
To date, s 44A has only once been judicially considered. The case of Resource Planning and Management Limited v Marlborough District Council (High Court, Blenheim, 10 October 2003, France J) is not entirely on point as the focus was on the distinction between the inclusion of factual information and opinion on LIMs.
It is, however, significant for present purposes that France J noted that a council ".. is not required to provide all of the information on its files ..." and therefore "... there has to be some cut off point" (§ 166). France J held that s 44A did not require the disclosure on the LIM of an opinion held by only one of the people involved in the assessment.
Ministry for the Environment Draft Guideline
I note your reference to the Ministry for the Environment's Contaminated Land Management Draft Guidelines No. 4. It is perhaps significant that horticultural activities are not specifically mentioned on the Hazardous Activities and Industries List (HAIL) (§ 3.2). The most relevant activity would appear to be pest control (No. 34).
Auckland City Council has placed some reliance on the Draft Guideline No. 4, particularly at § 4.3.10. It is important to note that a guideline has no legal effect and that a draft will have even less weight. The provision relied upon is, in my opinion, in need of clarification. It states that councils must disclose “... everything they know about a parcel of land ...”. Although it is not specified it is assumed this provision relates to s 44A(2), and not s 44A(3). As noted above, Resource Planning and Management Limited v Marlborough District Council is authority for the proposition that there must be some cut off point with regard to what information must be included on LIMs. In this case, there must be a cut off point in relation to the term 'likely' - mere possibility cannot suffice as far as s 44A(2) is concerned. As noted above s 44A(3) is discretionary so cannot impose any such obligation.
Other ways to release the information
Under s 44A(2)(a)(ii) a council is not required to include s 44A(2)(a) information on a LIM if it appears in the district plan under the Resource Management Act 1991. As an example, an area may be subject to rules that subdivision is prohibited because of known inundation. This being so, there would be no need to refer to inundation on the LIM. As far as hazardous contaminants are concerned, the RMA does deal with hazardous substances (see for example s 62(1)(i)(ii) and (2)) so again the information may already be available. If Auckland City Council is intending to require soil samples prior to giving approval for subdivision then this matter will probably need to be dealt with in a district plan so that such rules could be imposed.
The two reports mentioned and any other information held by a council in relation to this issue are “official information” as defined in s 2(1) of the LGOIMA. If a council received a request for such information pursuant to s 10 of the Act it would be obliged to release the information, subject to s 6 and 7 considerations.
A council could also make available such information on its website, any of its publications, at its offices, and through its libraries. There is no reason that information affecting land can only be released through a LIM.
There is no requirement to include information in a LIM unless it meets the provisions of s 44A(2) of LGOIMA. On the information you have provided the information relating to contaminated soils due to previous horticulture use does not appear to have reached that standard.
The reports that the council has are, however, official information so if requests are made for information the relevance of LGOIMA to that request has to be considered.
I trust this has answered your questions. If you have any further questions or require further information please do not hesitate to contact me.