Local authorities make information about the contamination status of sites available in a number of ways, including:
- responding to requests from other local authorities or agencies
- issuing Land Information Memoranda (LIMs) under section 44A of the Local Government Official Information and Meetings Act 1987 (LGOIMA)
- issuing Project Information Memoranda (PIMs) under sections 31 and 32 of the Building Act 2004
- responding to a request under the LGOIMA (whether or not the requester specifically refers to the LGOIMA)
- through planning processes (eg, district plan provisions, maps or hazard registers)
- via voluntary or non-regulatory means, such as Geographic Information Systems maps on a publicly available website.
Information provided should be as accurate and reliable as possible, and any uncertainties or gaps should be clearly noted. Minimising the potential for inaccuracies is best achieved by maintaining a single master register for each region, so that control over accuracy can be more easily exercised. As discussed in section 2.6, this guideline recommends that regional councils hold the master register for their region, although the register may be shared electronically by all the territorial authorities in their region. A master register should be continually updated by the lead local authority or those with appropriate authorisations. Sharing information with territorial authorities allows them to be aware of the status of a site when releasing information about that site. Territorial authorities should inform the holder of the master register (if appropriate) if they become aware of new information about a site, or if the information they have received is known to be incorrect or out of date.
Every effort should be made to verify information, regardless of whether the information is requested or made available voluntarily. However, local authorities are only compiling and assessing information about sites and it should be made clear that persons should not rely on this information and should take their own advice. This is known as a disclaimer. A disclaimer statement explains the limitations of the information's accuracy and reliability.
This chapter describes procedures for public requests for information, and information sharing between regional councils, territorial authorities and other government agencies. The procedures assume regional councils hold the master register, but can be modified to apply if registers are held by territorial authorities.
4.1 Releasing information to members of the public
Release of information to members of the public will occur either voluntarily or in response to a request. A local authority may choose to make information available through district plans, through LIMs or PIMs, or by other means.
A person may request official information from a local authority under the LGOIMA, or request information relevant to building work under the Building Act 2004. Any decision by a local authority on a request for information on the contamination status of sites must be made in accordance with the relevant legislation.
When a local authority releases information in good faith in response to a request under the LGOIMA, it is protected from civil or criminal proceedings to some extent under section 41 of that Act. Section 390 of the Building Act 2004 also provides some protection against civil proceedings for issuing PIMs in good faith. There is no statutory protection, however, for a local authority when responding to requests for LIMs. Similarly, a local authority has no statutory protection when it voluntarily releases information or transfers information to another local authority.
Members of the public may make enquiries about land contamination in relation to property transactions and property development. Because site investigations are often completed just prior to property transactions and development, it is imperative that registers be kept up to date. Another reason − and perhaps the driver of the bulk of requests − is the public health or environmental implications arising from contaminated land.
The following subsections outline general advice for the release of information to members of the public.
4.1.1 Responding to requests for information
Information on the register should already have been checked before entry (see section 3.6). Any information released should include the date of verification, and clearly state that the information was verified to be correct at that time. Although all attempts should be made to verify information before release, it is recommended that any unverified information be clearly labelled as such, both on copies of documents and against particular records in electronic databases.
Local authorities should clearly state any limitations on the accuracy or reliability of the information. Disclaimers are discussed in more detail in section 4.4.
Local authorities are encouraged to develop information request forms if they do not already have them. Forms can help make the request process easier for all concerned, especially those less familiar with technical terms. Forms should be available at public counters and via the local authority website, where appropriate. Forms can be useful in emphasising the limitations of the information provided and clarifying the extent to which persons can rely on that information.
Section 4.1.3 sets out recommended formats for the release of information by regional councils for the site classification categories outlined in chapter 3.
4.1.2 Land and Project Information Memoranda
Under the LGOIMA, a person may apply in writing to a territorial authority for the issue of a Land Information Memorandum containing matters affecting any land in the district of that authority. Territorial authorities are required to release information held about the "likely presence of hazardous contaminants" for a parcel of land (section 44A[a] LGOIMA).
Under the Building Act 2004, an owner contemplating building work may apply to a territorial authority for a Project Information Memorandum in respect of the work. Such an application must be in the prescribed form referred to in section 33(1) of the Building Act. Like LIMs, PIMs must also include information on the likely presence of hazardous contaminants.
LIMs and PIMs have become important mechanisms for the release of land contamination information. When considering the purchase or lease of a property, people use LIMs as a due diligence tool to judge whether the property is worth purchasing and is suitable for the proposed use. In order for local authorities to provide the best possible information to a person requesting a LIM or PIM, it is recommended that the information provided include (as a minimum) that set out in section 4.1.3.
In 2004, the Ministry for the Environment commissioned two legal opinions from Crown Law regarding the requirements of the LGOIMA as it relates to the inclusion of information on a LIM about the potential for hazardous contaminants to be present on a property as a result of its historical use as horticultural land (see Risks from Contaminated Land).
Local authorities may consider it appropriate for sites classified as 'contaminated land' to be reported on a LIM, because there is evidence of the presence of hazardous substances. If reporting sites within the 'land-use information' category, the local authority should describe any limitations of the available information (eg, incomplete investigations) so that recipients can make informed decisions or ask for more advice. The sample statements in Appendix D may be adapted for LIM purposes.
For some sites classified as 'land-use information', all that is known is that a HAIL activity took place or is taking place on the site; no investigation has been done to determine if hazardous substances are actually present. Local authorities may consider it appropriate to report these sites on a LIM, particularly if there are no other practical ways to disseminate this information (eg, via websites). Any LIM statement should be clear about whether the local authority holds information only about the land use, or about the presence or absence of any hazardous substances or contamination.
A local authority must be confident that the information it reports on a LIM is accurate. Therefore, the process for verifying information needs to be robust (see section 3.6). If a local authority is unsure about the release of information about a specific site it should seek legal advice.
4.1.3 Format of information released to members of the public
Information released directly to members of the public should be in an appropriate letter format, with site particulars included as appropriate. Sample statements for each site category are included in Appendix D.
The information given should include:
- the site location and legal description
- the site category on the register, including the date of classification, where relevant
- the definition of the site category and description of what information is held and what it indicates (see descriptions in section 3)
- reference to file numbers and reports on which the classification is based
- a disclaimer statement
- a contact person or position at the local authority.
Local authorities may also include, where appropriate or relevant, a summary of the investigations undertaken; details of the local authority's policies, plans or land contamination strategy; and a reference to the legislation under which the information was collated and released. Local authorities should aim to communicate technical terms clearly without losing the intent or meaning; for example, 'cleaned up' may replace 'remediated', or an explanation of what remediated means may be useful.
If information is requested about a site that is classified 'error' or 'land-use information' and the information shows only that there is unverified evidence of a HAIL land use, the local authority should state that it has no verified information to show that a HAIL activity has ever been carried out on the site.
4.2 Transfer of information between authorities
Information may be exchanged between regional councils and territorial authorities, or to other government agencies. As we have seen, unlike the situation where information is released under request mechanisms (eg, LIMs or PIMs), local authorities do not have statutory protection against civil proceedings when information is voluntarily transferred or released. Given the potential liabilities that arise through incorrect information being transferred and the loss of control of that information by the original owner once transferred, it is recommended that protocols be established for such transfers. Information transferred from the master register to territorial authorities or other agencies should include general or specific disclaimer statements.
There are various possible transfer scenarios, including:
- from a regional council to a territorial authority, to update the territorial authority's information (eg, on a regular basis, one-off transfers, or responses to requests)
- from a territorial authority to a regional council, to update the master register (eg, information relating to land use, storage or use of hazardous substances, subdivision of sites)
- to and from another government agency (eg, Department of Labour).
4.2.1 Transfer of information between a regional council and a territorial authority
Sharing information between territorial authorities and regional councils is in both parties' interests. Making the most accurate information available aims to reduce the likelihood of harm being caused to people using that information, and to reduce the risk that local authorities may be held liable for the release or use of incorrect or inadequate information.
This guideline recommends that regional councils make the master register available to territorial authorities in their region by the most user-friendly means possible; for example, a secure internet link through which territorial authorities can view the register and provide any information they may hold for the regional council to verify and update the register.
As stated earlier, local authorities should establish protocols for sharing information. They should develop systems to hold, evaluate and release information, as appropriate, in accordance with their respective statutory responsibilities. The protocols should cover:
- maintaining information security within their own system
- receiving updates of information from the regional council(s) in their area
- compiling and routinely transferring information to the regional council(s), if appropriate
- compiling and transferring information on a one-off basis to the regional council(s).
Regional councils should have protocols for:
- the design, development and security of the register
- systems to routinely receive information from, and transfer information to, territorial authorities on the verification of site data, site assessment and classification, and register data entry
- evaluating or reviewing site classifications when new information is received.
Note that the converse model, where the territorial authority(ies) hold the master register, is possible, with responsibilities reversed accordingly.
Routine transfer of information from territorial authorities to regional councils should include:
- notification of applications to the territorial authority for permits or consents, and the transfer of relevant information, for sites that fall within the HAIL or otherwise use or store hazardous substances
- information on hazardous substance spills or unauthorised releases that comes to the attention of local authority staff
- other information that might come to the attention of local authority staff that indicates actual or potential site contamination
- applications for resource consents, subdivision consents or district plan changes in circumstances where such changes might affect the register. In particular, if the territorial authority recognises that a zoning change or consent application applies to a site on the register, it should notify the regional council so that the regional council can examine and update its register, as appropriate.
Transfer of information should occur at regular intervals, as agreed by all parties. Site-specific issues (such as investigation, remediation, sale, purchase or development) should be raised with the appropriate local authorities as they occur.
Routine information transfers from a regional council to the territorial authority may include:
- updates of the information at not less than three-monthly intervals, or more frequently as may be agreed between the authorities
- one-off transfers of information for a site or sites subject to a LIM or PIM request, or an application to the territorial authority for a permit, consent or plan change.
4.2.2 Transfer to other government agencies
Information transfers to other government agencies (when requested) should be treated on a case-by-case basis, bearing in mind the general principles of this guideline.
4.3 Release or transfer of summarised information
This guideline does not apply to the release of information where a site cannot be specifically identified. Information compiled in summary or statistical form for state of the environment reports or annual reports (for example) should have unrestricted release, provided that individual sites cannot be identified, unless the local authority considers it appropriate to do so. If individual sites could be identified, this guideline should apply, where relevant.
A disclaimer statement identifying the limitations of the accuracy and reliability of the information should accompany all information releases or transfers. A disclaimer should contain sufficient detail to allow the person who receives the information to make an informed decision about the extent to which they can rely on the information or parts of it. The disclaimer should also clearly state that the local authority assumes no responsibility for any inaccuracy in, or omission from, the information, or for any consequence of that inaccuracy or omission.
Disclaimers may help to reduce the risk that a local authority will be held liable for the quantity and quality of available information. If a memorandum of understanding, contract or other legal document is established for the regular transfer of information, local authorities may want to consider whether it would be appropriate to include a clause excluding the local authority providing information from any liability in relation to that information. Local authorities should obtain legal advice on the appropriate wording of disclaimers.