consulting or making decisions on a water services delivery plan, including in relation to an anticipated or proposed model or arrangement for delivering water services; and

Clause 4

Replace clause 4(3) (page 8, lines 3 to 5) with:

(3)

Part 3 sets out specific consultation and decision-making processes that territorial authorities—

(a)

must use when consulting or making decisions on including an anticipated or proposed model or arrangement for delivering water services in a water services delivery plan; or

(b)

may use in relation to other parts of a water services delivery plan; or

(c)

may use when establishing, joining, or amending council-controlled organisations or joint local government arrangements that will deliver water services.

Clause 15

Replace clause 15(2) and (3) (page 19, lines 17 to 25) with:

(2)

In relation to an anticipated or proposed model or arrangement for delivering water services in its water services delivery plan (see section 11(1)(j)), a territorial authority must—

(a)

undertake consultation; and

(b)

ensure that its consultation and decision-making complies with sections 51 to 54.

(3)

Except as required under subsection (2), this Act does not require a territorial authority to consult on a draft or final water services delivery plan.

(4)

However, if a territorial authority decides to consult on a part of its water services delivery plan, other than a model or arrangement described in subsection (2), it must do so in accordance with sections 52 to 54.

(5)

Despite subsection (2), Auckland Council is not required (under this Act or any other Act) to consult on its anticipated or proposed model or arrangements for delivering water services in its water services delivery plan, but—

(a)

may decide to consult; and

(b)

if it decides to consult, must do so in accordance with sections 52 to 54.

Clause 19B

In clause 19B(2)(b), after “significant” (page 23, line 4), insert “and necessary due to exceptional circumstances”.

In clause 19B(2)(d), replace “18 months” (page 23, line 9) with “24 months”.

Clause 33

After clause 33(1)(a) (page 32, after line 5), insert:

(aa)

the Wellington Regional Council:

Clause 37

In clause 37(3)(l), after “territorial authorities” (page 35, line 4), insert “(or regional councils, if the specified entity is the Wellington Regional Council)”.

Clause 41

In clause 41(1)(a), after “understanding” (page 39, line 28), insert “the Wellington Regional Council’s or”.

Part 3 heading

Replace the Part 3 heading (page 43, lines 20 and 21) with:

Part 3 Alternative requirements and additional powers

Clause 49

Replace clause 49(a) (page 43, lines 25 to 35) with:

(a)

to set out consultation and decision-making requirements, in place of certain consultation and decision-making requirements set out in the LGA2002 (the alternative requirements), that territorial authorities—

(i)

may use when establishing, joining, or amending—

(A)

a water services council-controlled organisation (or are deciding whether or not to do so); or

(B)

a joint local government arrangement under section 137 of the LGA2002 (or are deciding whether or not to do so); and

(ii)

must use when consulting or making decisions in relation to an anticipated or proposed model or arrangement for delivering water services; or

(iii)

must use if they decide to consult on a part of a water services delivery plan other than a model or arrangement described in subparagraph (ii); and

In clause 49(b), after “WSCCOs” (page 44, line 1), insert “, water services delivery plans,”.

Clause 50

In clause 50(1), replace “If” (page 44, line 15) with “When”.

In clause 50(2), delete “to a territorial authority whether or not it complies with the alternative requirements” (page 44, lines 20 and 21).

In clause 50(3), replace “A” (page 44, line 22) with “In the circumstances described in section 49(a)(i), a”.

Clause 51

Replace clause 51(1) (page 44, lines 29 to 33) with:

(1)

This section applies if a territorial authority—

(a)

is deciding whether or not to establish, join, or amend—

(i)

a water services council-controlled organisation; or

(ii)

a joint local government arrangement under section 137 of the LGA2002; or

(b)

before adopting its water services delivery plan, is making decisions in relation to an anticipated or proposed model or arrangement for delivering water services in its water services delivery plan (see section 11(1)(j)).

In clause 51(2)(a)(ii), replace “joining, forming” (page 45, line 3) with “establishing, joining”.

Clause 52

Replace clause 52(1) (page 45, lines 10 to 14) with:

(1)

This section applies if a territorial authority—

(a)

is deciding whether or not to establish, join, or amend—

(i)

a water services council-controlled organisation; or

(ii)

a joint local government arrangement under section 137 of the LGA2002; or

(b)

when adopting its water services delivery plan, is making decisions in relation to an anticipated or proposed model or arrangement for delivering water services in its water services delivery plan (see section 11(1)(j)); or

(c)

decides to consult on a part of its water services delivery plan, other than a model or arrangement described in paragraph (b).

Replace clause 52(2) (page 45, lines 15 to 17) with:

(2)

Before a territorial authority makes a decision described in subsection (1), it is required to undertake consultation only once.

(2A)

A territorial authority that makes a decision described in subsection (1)(a) is not required to undertake any further consultation before making a decision described in subsection (1)(b).

In clause 52(3), replace “subsection (2)” (page 45, line 18) with “subsections (2) and (2A)”.

Clause 53

Before clause 53(1) (page 46, before line 2), insert:

(1AA)

This section applies if a territorial authority is required to amend its long-term plan for the purpose of—

(a)

a proposal to give effect to an anticipated or proposed model for delivering water services under a water services delivery plan (see section 11(1)(j)); or

(b)

a proposal to establish, join, or amend a WSCCO or a joint local government arrangement under section 137 of the LGA2002.

In clause 53(1), replace “If a territorial authority is required to amend its long-term plan for the purpose of establishing, joining, or amending a WSCCO or a joint local government arrangement under section 137 of the LGA2002, the authority is not required to consult on the amendment” (page 46, lines 2 to 4) with “The territorial authority is not required to consult on the proposal”.

In clause 53(1)(a), delete “to establish, join, or amend (as the case may be) a WSCCO or a joint local government arrangement” (page 46, lines 6 to 8).

Clause 54

Before clause 54(1) (page 46, before line 17), insert:

(1AA)

This section applies when a territorial authority consults—

(a)

in relation to whether or not to establish, join, or amend—

(i)

a water services council-controlled organisation; or

(ii)

a joint local government arrangement under section 137 of the LGA2002; or

(b)

before adopting its water services delivery plan, in relation to an anticipated or proposed model or arrangement for delivering water services in its water services delivery plan (see section 11(1)(j)); or

(c)

on a part of its water services delivery plan, other than a model or arrangement described in paragraph (b).

In clause 54(1), replace “about whether or not to establish, join, or amend a WSCCO or a joint local government arrangement under section 137 of the LGA2002” (page 46, lines 17 to 19) with “in the circumstances described in subsection (1AA)”.

Clause 55

In clause 55, after “a joint WSCCO” (page 47, line 27), insert “, a joint arrangement,”.

In clause 55(a), after “WSCCO” (page 47, line 31), insert “, the joint arrangement,”.

Replace clause 55(c) (page 47, lines 36 and 37) with:

(c)

the views of the other territorial authorities who are—

(i)

parties to the joint WSCCO, the joint arrangement, or the joint local government arrangement; or

(ii)

considering whether to become parties to the joint WSCCO, the joint arrangement, or the joint local government arrangement.

Clause 56

In clause 56(1), after “joint WSCCO” (page 48, line 3), insert “, a joint arrangement,”.

In clause 56(4), after “joint WSCCO” (page 48, line 22), insert “, a joint arrangement,”.

Clause 57

In clause 57(1), after “a joint WSCCO” (page 48, lines 26 and 27), insert “, a joint arrangement,”.

In clause 57(1)(b), after “the joint WSCCO” (page 48, line 30), insert “, the joint arrangement,”.

In clause 57(2), after “the joint WSCCO” (page 48, line 33), insert “, the joint arrangement,”.

Clause 58

After clause 58(1)(aa) (page 49, after line 3), insert:

(ab)

is deciding whether or not to change its water services delivery arrangements as part of an anticipated or proposed model or arrangement for delivering water services in its water services delivery plan (see section 11(1)(j)); or

In clause 58(1)(c), replace “.” (page 49, line 6) with “; or”.

After clause 58(1)(c) (page 49, after line 6), insert:

(d)

has changed its water services delivery arrangements as part of an anticipated or proposed model or arrangement for delivering water services in its water services delivery plan.

In clause 58(2), after “the WSCCO” (page 49, line 8), insert “, the anticipated or proposed model or arrangement for delivering water services,”.

Clause 61

Replace clause 61(2)(b) (page 50, line 31) with:

(b)

the date on which the Crown monitor’s appointment starts; and

(c)

the terms of reference of the Crown monitor.

After clause 61(3)(a) (page 50, after line 33), insert:

(aa)

change the Crown monitor’s terms of reference; or

In clause 61(4), after “terms of an appointment” (page 51, line 2), insert “or the terms of reference”.

Clause 62

Delete clause 62(1)(b) (page 51, lines 9 and 10).

Delete clause 62(2) (page 51, lines 15 to 19).

Clause 62A

In clause 62A(1), after “charter” (page 51, line 22), insert “in consultation with Auckland Council”.

Replace clause 62A(2) (page 51, lines 23 to 29) with:

(2)

When preparing a charter, the Secretary may consult any person the Secretary considers appropriate.

In clause 62A(3), replace “subsection” (page 51, line 30) with “subsections (1) and”.

Clause 64

In clause 64(1), replace “section 63(2)(a)(i)” (page 52, line 36) with “section 63(a)(i)”.

In clause 64(2), replace “section 63(2)(a)(ii)” (page 53, line 7) with “section 63(a)(ii)”.

In clause 64(3), replace “section 63(2)(a)(iii)” (page 53, line 16) with “section 63(a)(iii)”.

Clause 65

In the heading to clause 65, replace “Crown monitor” (page 53, line 19) with “Secretary”.

In clause 65(1), replace “Crown monitor” (page 53, line 20) with “Secretary”.

In clause 65(4)(a), replace “Crown monitor” (page 54, line 5) with “Secretary”.

In clause 65(4)(b), replace “Crown monitor in any order specified by the Crown monitor” (page 54, lines 6 and 7) with “Secretary in any order specified by the Secretary”.

In clause 65(5), replace “Crown monitor” (page 54, line 9) with “Secretary”.

Clause 66

In the heading to clause 66, replace “Crown monitor” (page 54, line 11) with “Secretary”.

In clause 66(2), replace “Crown monitor” (page 54, line 14) with “Secretary”.

Clause 67

In clause 67(1), replace “Crown monitor” (page 54, line 21) with “Secretary”.

After clause 67(1) (page 54, after line 27), insert:

(1A)

Before providing written comments on the plan to Watercare under subsection (1)(c), the Secretary—

(a)

must consult Auckland Council; and

(b)

may consult any other person the Secretary considers appropriate.

In clause 67(2)(a), replace “Crown monitor” (page 54, line 29) with “Secretary”.

In clause 67(2)(b), replace “Crown monitor” (page 54, lines 31 and 32) with “Secretary”.

In clause 67(3), replace “Crown monitor” (page 54, line 36) with “Secretary”.

Clause 68

In clause 68(1), delete “the information required by the Crown monitor, which may be” (page 55, lines 4 and 5).

In clause 68(4)(i), replace “Crown monitor” (page 56, line 8) with “Secretary”.

Clause 71

After clause 71(1) (page 57, after line 33), insert:

(1A)

To avoid doubt, Watercare’s performance under the charter includes the performance of any service or network that Watercare manages through a contract with a third-party provider.

Clause 74

In the cross-heading above clause 74, after “Crown monitor’s” (page 58, line 23), insert “and Secretary’s”.

In the heading to clause 74, after “Crown monitor’s” (page 58, line 24), insert “and Secretary’s”.

Clause 75

In clause 75(1), replace “Crown monitor” (page 59, line 17) with “Secretary”.

In clause 75(2)(c), replace “Crown monitor” (page 59, line 22) with “Secretary”.

Clause 78

In clause 78(1)(b), replace “; or” (page 61, line 15) with “.”.

Delete clause 78(1)(c) (page 61, lines 16 and 17).

Clause 80

Replace clause 80(2) (page 61, lines 33 to 35) with:

(2)

The maximum daily amount of a further penalty under subsection (1) is $250,000.

In clause 80(3)(a), after “the day” (page 62, line 1), insert “after the day”.

Clause 81

In clause 81(1), after “section 76” (page 62, line 5), insert “or 78”.

In clause 81(2), after “section 76” (page 62, line 10), insert “or 78 (as applicable)”.

Clause 87

In clause 87(2), new section 130(5)(a), replace “stormwater services in Auckland” (page 63, lines 11 and 12) with “water services in Auckland that are not water supply and wastewater services”.

In clause 87(2), after new section 130(5) (page 63, after line 13), insert:

(6)

For the purpose of subsection (5)(a), water supply and wastewater services has the same meaning as in section 4(1) of the Local Government (Auckland Council) Act 2009.

Clause 88

In clause 88, new section 130A(4), replace “means water supply and wastewater services” (page 63, line 31) with “has the meaning given to water supply and wastewater services in section 4(1) of the Local Government (Auckland Council) Act 2009”.

Clause 94

In clause 94, after new section 56A(1) (page 65, after line 2), insert:

(1A)

To avoid doubt, nothing in this section precludes the Auckland Council and an Auckland water organisation entering into a contract for shared services.

In clause 94, new section 56A(2), definition of borrowing, paragraph (d), after “that is entered into” (page 65, line 36), insert “(or that was entered into before this section came into force)”.

Explanatory note

This Amendment Paper sets out amendments to the Local Government (Water Services Preliminary Arrangements) Bill (the Bill).

Clause 2(2) of the Bill sets out the provisions that come into force by Order in Council. The purpose of the amendment to clause 2(2) is to reflect that clause 99 (which is to come into force by Order in Council) has been moved and now appears as clause 103. The amendment replaces the reference to clause 99 with a reference to clause 103.

Clauses 3 and 4 are amended—

to add references to joint local government arrangements, as a result of those arrangements now being included in Part 3 of the Bill; and
to align with changes made to clause 15 and Part 3, requiring (rather than enabling) territorial authorities to rely on the alternative requirements for consultation and decision-making in certain circumstances.

Clause 15, which sets out the process for preparing and adopting a water services delivery plan, is amended to require territorial authorities to use the alternative requirements in Part 3 for consultation and decision-making relating to an authority’s water services delivery model or arrangement, or implementation plan.

Clause 19B, which relates to a territorial authority submitting an amended water services delivery plan, is amended to—

provide that a territorial authority may submit the amended plan only if the proposed amendments are necessary due to exceptional circumstances; and
extend the period in which a territorial authority may submit an amended plan from 18 months to 2 years.

Clause 33 is amended by adding the Wellington Regional Council to the list of entities that may be a specified entity for the purposes of subpart 3 of Part 2. Consequential amendments are also made to clauses 37 and 41.

The heading to Part 3 is amended to more accurately reflect the contents of that Part.

Clause 49 sets out the purpose of Part 3. It is amended to reflect the changes made relating to the alternative requirements in Part 3.

Clauses 50 to 54 and 58 are amended, as a consequence of the amendment to clause 15, to reflect that the alternative requirements in clauses 51 to 54 are no longer optional in all circumstances, but must be relied upon when a territorial authority is consulting or making decisions relating to the authority’s water services delivery model or arrangement, or implementation plan.

In addition, clauses 55, 56, and 57 are amended to insert references to joint arrangements, to clarify that those clauses apply when a territorial authority is considering joining a joint arrangement. Clause 55 is also amended to allow a territorial authority to consider the views of territorial authorities who are considering joining 1 of the listed types of arrangement.

Clause 61(2) is amended to require a Crown monitor’s terms of reference to be included in the notice of the Crown monitor having been appointed. The amendments to clause 61(3) and (4) are consequential to the amendment—they permit the Minister to change the terms of reference once a Crown monitor has been appointed, and require the department to publicise any such change.

The amendments to clause 62A require the Secretary to prepare the Watercare charter in consultation with the Auckland Council, rather than consulting Auckland Council after having prepared a draft of the charter.

The amendments to clause 64 are to correct cross-references to clause 63.

The amendments to clauses 65 to 68 and 75 are required as a result of the Watercare charter being prepared by the Secretary rather than by the Crown monitor.

Clause 67 is also amended to require the Secretary, before providing comments on Watercare’s business plan, to consult Auckland Council, and to allow the Secretary to consult any other parties.

Clause 71 is amended to clarify that, when the Crown monitor monitors Watercare’s performance, it includes monitoring the management of any services or networks that Watercare has contracted to a third-party provider.

The heading to clause 74, and the heading above that clause, are amended to more accurately reflect the contents of that clause.

Clause 78(1)(c) (which provides that the High Court could make an order if satisfied that Watercare had not addressed the Crown monitor’s comments on a draft business plan) is deleted because Watercare is no longer required to address such comments.

Clause 80 of the Bill sets out the additional daily penalties that are payable for a continuing breach of clause 76 or 78. The amendment to clause 80 provides that, rather than a fixed rate for each type of breach, the maximum daily rate for a breach of either clause 76 or 78 is $250,000. The amendment also provides that the further penalty applies from the day after the day on the penalty was imposed, rather than the same day.

Clause 81 provides a right of appeal against a High Court order or decision under clause 76. It is amended to also apply to an order or decision made under clause 78.

Clauses 87 and 88, which amend the Local Government Act 2002, are amended to align with the definition of water supply and wastewater services provided in the Local Government (Auckland Council) Act 2009.

Clause 94 inserts a new section 56A into the Local Government (Auckland Council) Act 2009. The amendment clarifies that—

a reference to a contract for services includes a contract for services that was entered into before this new section comes into force; and
new section 56A does not preclude a contract for shared services between the Auckland Council and an Auckland water organisation.

Departmental disclosure statement

The Department of Internal Affairs considers that a departmental disclosure statement is not required to be prepared for this Amendment Paper.

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Local Government (Water Services Preliminary Arrangements) Bill - Amendment paper No 065