Additional Crown Law advice, former horticultural sites, 17 December 2004
Crown Law Advice to the Ministry for the Environment - Potential Contamination by Horticultural Soils
I refer to your letter dated 13 December 2004 requesting advice on the following four matters: 1.1 Should the information on possible contamination of former horticultural sites be placed on the LIMs of affected properties under s 44A(3) LGOIMA? 1.2 Could the Council face liability if it did not include the information on the LIMs under s 44A(3)? 1.3 Is it legally prudent to put the information on the LIMs under s 44A(3) in light of this information? 1.4 Is it legal to put this information on the LIMs?
These questions are additional to the questions you asked on s 44A of the Local Government Official Information and Meetings Act 1987 (LGOIMA) and the inclusion of information relating to contamination of sites by horticultural soils on Land Information Memorandums (LIMs) in a letter dated 1 December 2004 and an email dated 7 December 2004. Advice in relation to those questions was provided in a letter dated 14 December 2004. I note that, although that advice referred to horticultural activities not being included in the Hazardous Activities and Industries List (HAIL), this is incorrect and I apologise for any inconvenience caused by paragraph 23 of that opinion which refers to the HAIL. The HAIL, at No. 29, does in fact refer to horticultural activities in the following terms:
"Market gardens, orchards, glass houses or other areas where the use of persistent agricultural chemicals occurred."
Summary of Advice
There is no requirement to include information in a LIM unless it meets the provisions of s 44A(2) of the LGOIMA. Inclusion of information falling under s 44A(3) is discretionary and will depend on the particular circumstances.
Under s 44A liability (for either wrongfully including or wrongfully excluding information) can never be excluded, as there is no statutory protection for statements in a LIM. Section 41 of the LGOIMA does provide protection for the release of official information generally.
The Council has acted lawfully in putting the information on the LIM. Considering whether its actions were legally prudent would require a full assessment of the information available at the time. An assessment with the benefit of hindsight will not provide great benefit.
Auckland City Council (the Council) received two reports relating to contaminant levels of soils in certain parts of the city arising from previous horticultural use. As a result, Auckland City Council declared that it would include notices on the LIMs of up to 5,000 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 the Council has no knowledge of whether the property is or is not contaminated as a result of such use. The Council has relied upon s 44A(3) of the LGOIMA to undertake this action.
There have been claims about the reduction in value of properties and the inability to sell houses as a result of the Council's announcement. There have also been concerns about the scope of the Council's liability for the inclusion of such information on LIMs. Your queries have arisen from this situation.
Section 44A(3) of the LGOIMA provides:
"44A. Land information memorandum - ... (3) 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."
Section 44A(3) provides the Council with two decisions. The first is that it has to exercise its judgment over whether the information is relevant or not. The second is that, even if the Council decides that the information is relevant, it can then decide whether to include it on the LIM or not. In each of these two decisions, the Council must act within the general principles of administrative law.
The only requirement in s 44A(3) is that the information must concern "the land". The reports were considering former horticultural sites in a general way and it was this previous use of the land that was identified in the LIM, without any specific comment about contamination. The previous use does concern the land and so fell within the only specific matter provided for in s 44A(3).
Information which falls under s 44A(3) is also official information and, if requested pursuant to the LGOIMA, it must be disclosed unless the reasons for withholding information as set out in ss 6 and 7 of the Act apply.
Section 41 of the LGOIMA provides some protection for local authorities releasing official information in good faith pursuant to Parts 2, 3 or 4 of the Act. In particular, no proceedings, civil or criminal, shall lie against a local authority for making available that information and any consequences that flow from it. This section does not cover information released in a LIM, as s 44A falls within Part 6 of the Act.
Under s 44A(3), councils do not have a duty to include all relevant information on LIMs, but rather have the statutory obligation to exercise the discretion which they are given. There is nothing in the information that we have been provided with that suggests the Council did not exercise its discretion in accordance with the general principles of administrative law. It also sought legal advice and relied upon that.
There is no "safe" option for a council that is deciding whether to include relevant information on a LIM. If the information was included but the research was found to be incorrect or inaccurate, home owners whose property values had fallen as a result might wish to sue. If the information was not included, purchasers of properties found to be contaminated might wish to sue. It is not possible to completely exclude liability in respect of LIMs. The exclusion of Part 6 from s 41 of the LGOIMA provides some support for an argument that a council is liable if it negligently includes information on a LIM, even when the information provided is wrong for reasons other than bad faith.
The Legally Prudent Course
An assessment of the most prudent course open to the Council at the time will necessarily now be coloured by hindsight. The Council presumably did not anticipate the strong opposition from home owners, nor the stated drop in property values.
The Council's actions were lawful. Information relating to possible contamination arising from a former use of land is "information concerning the land" pursuant to s 44A(3). If the Council considered it to be "relevant" to the LIM then it was legally able to exercise its discretion to include such information on the LIM.
There are, however, other means of disseminating the information in question. A requirement for soil testing could be incorporated in the district plan under the Resource Management Act 1991 for example. The information could be released pursuant to any requests made under the LGOIMA and then the s 41 statutory protection would apply. Councils could make such information available through their websites, publications, offices and libraries, but if they do so the s 41 protection would likely not apply.
There is no requirement to include information in a LIM unless it meets the provisions of s 44A(2) of the LGOIMA. The Council has a discretion to include information under s 44A(3). It is lawful to do so but there is an unavoidable risk of liability as s 44A does not have the statutory protection from liability provided by s 41 of the LGOIMA. The information could have been made available by other methods, some of which would have had the statutory protection. It is not however, helpful to assess the actions of the Council with the benefit of hindsight.
I trust this has answered your questions. If you have any further questions, or require further information, please do not hesitate to contact me.