What new requirements mean in practice for both councils and customers

Council LIMs (land information memoranda) must include certain natural hazard information that is held by or known to the Council. The current requirements in the Local Government Official Information and Meetings Act 1987 (LGOIMA) can be problematic - it can be hard for councils to identify exactly what information to provide and how, while the recipient of a LIM may sometimes find it difficult to understand the information provided.

Amendments to LGOIMA made in 2023, which will come into force in July this year, together with recently issued regulations, will help to clarify LIM requirements.^[1] In particular, they will result in a more uniform approach to the inclusion of natural hazard information in LIMs.

Current situation

Under LGOIMA as it presently stands, a potential purchaser of land may ask district and city councils - but not regional councils - to prepare and provide a LIM that includes information identifying certain “potential” natural hazards affecting the land, such as erosion, slippage and flooding. The requirement only applies to information that is “known” to the council concerned, and it excludes any information that is apparent from the district plan.   

Natural hazard information held by a council will come from various sources and be presented in various forms.  It may be site specific - such as an engineering report on a particular property - or cover a wider geographical area: even, say, the entire coastline of the district. By its nature the information may be of a technical nature or “buried” in a lengthy or complicated document.

Councils have often found it hard to identify when general hazard information about a wider area crosses the line to become information about a “potential” hazard affecting a specific property. In most cases, risk from a hazard is a matter of degree rather than absolute. Even where hazard information is site specific, it can be a judgment call as to whether the same hazard also relates to neighbouring properties. Given the risk of potential liability if a LIM is found to be incomplete, there has been a tendency for councils to include more rather than less information, sometimes in a form that is not readily understandable to the recipient. However, owners of land affected by potential hazards have sometimes been unhappy with this approach, with legal challenges being initiated.

People can also expect a LIM to be a complete record of a council’s hazard information, and may not appreciate that LGOIMA says information apparent from the district plan is not included in a LIM.

The 2023 amendments

The amendments to LGOIMA, together with the associated regulations, are intended to make it clearer what hazard information is to be included in a LIM, the form / structure of a LIM, and overall ensure that information is provided in a more user-friendly and understandable way.   

The amendments, which will come into force from July, introduce new provisions requiring LIMs to contain information about:

• known or potential natural hazards affecting the land concerned,
• known or potential impacts of climate change that exacerbate those natural hazards; and
• the cumulative or combined effects of those hazards and impacts for the land concerned. 

Rather than a bespoke description of which hazards might be relevant, natural hazards are now those defined as such in the Resource Management Act 1991 (which includes earthquake, tsunami, erosion, volcanic and geothermal activity, landslip, subsidence, sedimentation, wind, drought, fire, or flooding), thereby aligning the two Acts.

The new provisions now explain when there is a “potential” natural hazard - ie where the council is satisfied there is a reasonable possibility that the hazard may affect the land, now or in the future. This provides some leeway to the council when identifying potential hazards.

The requirement to include information about the cumulative or combined effects of hazards and impacts is a new feature of the amendments, and we expect that councils will need to carefully consider how to address that requirement where there are overlapping hazard risks (ie river flooding and coastal inundation risks, including due to sea level rise).

The new Regulations

The new Regulations set out the detailed minimum content and format of the natural hazard information in a LIM. LIMs must now include a separate natural hazard section (where relevant) which contains:

1. relevant information sourced from the council’s district plan;
2. certain Building Act information - where a building consent has been granted on land subject to natural hazards, or where a “Do Not Enter” notice is in place); and
3. other hazard information grouped under subject headings (earthquake, flooding etc).

The focus of the Regulations is on providing useful information only - less can be more, especially where the hazard information is in graphical form. The district plan hazard information can be given by cross-referencing to the district plan and providing a link to any relevant map. Where information is held in a technical report, the report need not be provided itself, but the LIM must set out certain information about the report - its purpose, scope, title, date, who prepared it and who commissioned it, and how it may be accessed. Where information is in a map produced or commissioned by the council, or received from the regional council, the map, or an internet link to the map, must be included. 

If any information has been commissioned or produced by the council itself, the LIM must include a plain English summary if the council thinks this would help the recipient to understand the natural hazard information. We anticipate this may be an area of difficulty for councils, especially where detailed reports are involved.

Regional council involvement

To ensure all hazard information held by or known to local authorities is included, regional councils will be required to provide the same categories of hazard information to the district and city councils in their region that are responsible for preparing LIMs. The eventual LIM must include that information, without alteration, and specify that it has come from the regional council, including links to the regional council’s own online hazard portal.  If the regional council has included a plain language summary, this must also be included. 

Our comments

The focus of the recent amendments and new Regulations is on clarifying what hazard information needs to be provided in LIMs, and improving the way in which such information is presented. The new requirements should assist both councils and customers, with a more uniform and structured LIM the end result.

Clarity around the minimum requirements for information contained in technical reports is particularly welcome, as is formalising the process for receiving and including regional council information. Difficulties may still arise when identifying or determining what is a known or potential hazard, but the “reasonable possibility” test for a “potential” hazard is helpful clarification. 

Another important amendment to LGOIMA is a new provision that protects councils against liability for natural hazard information that is made available in a LIM in good faith. Councils are commonly caught between an existing landowner who claims certain hazard information does not relate to their land and should not be on the LIM, and a potential purchaser who may expect such information to be provided. Councils should now have a measure of protection where such hazard information is included, which may reduce the risk of challenge so long as the information is provided in good faith.

Consistent with the case law that has developed around LIM information, the regulations clarify that a council’s obligations when preparing a LIM are limited. When responding to a request for a LIM, councils are not required to prepare new risk assessments or otherwise undertake specific analysis in relation to the land concerned. This is useful clarification, and highlights that the purpose of a LIM is to disclose information already held or known to a council, rather than require the council to complete its own specific assessment of the land concerned.

From the perspective of council customers obtaining a LIM, the changes ought to result in more focused and useful, but also more complete, hazard information being provided, and greater consistency between councils as to the form and contents of LIMs. 

Get in touch

If you would like to discuss any of the above amendments and regulations, get in touch with one of our experts.

Special thanks to Charlie Sleigh for his assistance in writing this article.